Does the Odor of Cannabis Smell Like Probable Cause?

by: Tim Black

Anyone who has ditched their mask and gone outside in Chicago over the past two years knows that the odor of cannabis is everywhere. Since adult recreational use of cannabis was decriminalized at the start of 2020, the laws around possession, transportation, and consumption of cannabis have been working their way through the Courts. One of the most exciting advances is a novel case coming out of Whiteside County. In People v. Molina, Associate Judge Daniel J. Dalton issued an Order that the odor of raw cannabis alone is no longer probable cause to search a vehicle.  As he put it, “[t]here are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis.”

The case revolved around a traffic stop in Whiteside County on December 3, 2020.  A State Trooper stopped a car in which the defendant, Mr. Molina, was riding as a passenger.  When the State Trooper asked to see Mr. Molina’s identification, the State Trooper noted that he smelled “raw cannabis.”  Mr. Molina showed the State Trooper his medical use cannabis card, but the Trooper ordered Mr. Molina and the driver out of the vehicle so he could perform a warrantless search under the exception that an odor of cannabis was probable cause that a crime was being committed.  The State Trooper found 2.6 grams of cannabis and arrested Mr. Molina for misdemeanor possession of cannabis.

20211206_143406Mr. Molina’s attorneys James Mertes and Nichalas Rude ultimately filed a motion to suppress the evidence found during the warrantless search on the grounds that possession of raw cannabis is no longer a crime, especially when the State Trooper knew Mr. Molina was a card-carrying medical use patient, thus the odor of cannabis could no longer be considered probable cause to believe a crime was afoot.  Judge Dalton agreed, in a first-of-its-kind case in Illinois.  In suppressing the cannabis evidence, Judge Dalton noted that the State Trooper “. . . did not indicate any other reason for his suspicions or his search other than the smell of raw cannabis,” and that Mr. “Molina did provide a medical use license . . . prior to the search of the vehicle.”

The State of Illinois has not yet indicated whether they intend to appeal Judge Dalton’s Order, but considering its potential effect on the body of case law surrounding warrantless searches in Illinois, it is safe to assume the issue is not yet settled.  Mr. Mertes has indicated that he will keep fighting for his client, and for all of us, really, if the State does decide to appeal.  Until then, the odor of cannabis alone is not probable cause to search your car in Whiteside County, Illinois.

Stay tuned to LauraLaw for developments on cannabis laws and all things criminal law in Illinois.  If you have been arrested, are under investigation, or want to expunge your record, please do not hesitate to contact us here at LauraLaw, and one of our skilled attorneys will be happy to assist you.

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