Scent of raw cannabis gives police probable cause to search vehicle, Illinois high court says

Illinois motorists and their passengers could be subject to search and prosecution for possession of cannabis if law enforcement officers say they detect the smell of raw cannabis during a police stop.

That's what Illinois Supreme Court ruled in a December 5 opinion.

The case came to the state's high court after an appeal of a circuit court judge's decision to suppress the discovery of "several joints of cannabis" that an Illinois state police trooper found after an alleged speeding violation in December 2020.

Upon stopping the car, Illinois state police trooper Ryan Wagand said he smelled raw cannabis. In a search Wagand found the raw cannabis. Front-seat passenger Vincent Molina said the cannabis was used for medical purposes.

Molina subsequently was prosecuted for violating the Illinois Vehicle Code, which prohibits possession of cannabis in a motor vehicle on a highway unless it is stored in a sealed, odor-proof, child resistant cannabis container.

At issue for the courts was whether or not Illinois vehicle law conflicts with a 2000 Illinois law that made recreational marijuana usage legal.

Alexandra K. Block, director of the criminal legal system and policing project for the Roger Baldwin Foundation of the American Civil Liberties Union says the ruling is going to cause confusion to consumers.

"The Illinois motor vehicle code that says that if cannabis is being transported in a car, it has to be in an odor-proof container," Block said. "The [Illinois] Supreme Court said that the odor-proof container requirement applies when you're transporting raw cannabis, but it doesn't apply to the smell of allegedly burned cannabis, because that the burning smell would suggest that the person has already consumed the cannabis."

Illinois prohibits the use of marijuana while driving.

The ACLU , the ACLU of Illinois along with the National Association of Criminal Defense Lawyers and the Illinois Association of Criminal Defense Lawyers submitted an amicus brief in support of Molina.

The court acknowledged this "quirk" between the Illinois vehicle code and the recreational marijuana use statute.

"The state concedes, and we agree, that the vehicle code contains an “additional requirement” beyond the possession requirements in the regulation act: namely, that the cannabis be stored in an odor-proof container," the justices wrote.

The Dec. 5 ruling conflicts with a September 2024 high court decision that burnt cannabis case where the court ruled that it doesn't trigger probable cause or a warrantless search of a vehicle.

This leaves law enforcement officers with broad discretion to make statements that support the legality of a vehicle search during a traffic stop.

During the circuit court trial, Wagand initially testified that he smelled the strong odor of burnt cannabis coming from inside the vehicle. However, after being shown his police report, Wagand corrected his testimony and stated that he detected a strong odor of fresh cannabis. advising that he had been trained to detect the difference between the smell of burnt cannabis and raw cannabis.

"The police officer can make any claim they want, because it's going to be their word against the word of a driver or a passenger," Block said. "You can't document an odor permanently. You know, it's a fleeting thing. You can't see it on body worn camera."

It is unclear whether ISP or the Illinois Law Enforcement Training and Standard Board teaches officers how to distinguishing the smell of raw cannabis from burned cannabis.

Since the smell of raw cannabis triggers a violation of Illinois vehicle code, the court said the two different odors can't be treated as equals in a probable cause analysis.

"We reach the result in this case based on the stringent “odor-proof” container requirement in the vehicle code," the majority wrote.

In a dissent, Justice Mary K. O'Brien wrote.

"It defies logic to conclude that an odor that indicates consumption or use does not suggest the reasonable probability of a crime while an odor that indicates simply the transport of that same substance does."

The decision creates even greater challenges for motorists in a state where data shows that law enforcement officers more often stop motorists of color.

In Illinois, African Americans are stopped almost twice as much as by police as whites and 7.5 times more likely to be arrested for marijuana possession, according to the ACLU.

"Cannabis packaging violation is very similar to those other small, minor issues that police use like a burned out headlight as excuses to stop drivers and fish for evidence of wrongdoing," Block said.

"We should be pressing our police departments to prohibit pretextual stops not only on the basis of the odor of cannabis, but all the other very minor reasons that police use to stop drivers – mostly black and brown drivers – things like registration and equipment violations."