Even the claim that you smell cannabis is discretionary. It’s possible for officers to lie because they can’t be challenged.
By Dilpreet Raju, Capitol News Illinois
The Illinois Supreme Court heard Wednesday arguments on whether the mere smell of marijuana is enough to warrant a search by police officers. This was a test for the 2020 recreational marijuana law in the state.
The court heard two cases consolidated of individuals who were found in vehicles after a police officer used the smell cannabis as probable reason to search them.
Court records reveal that in People V. Redmond defendant Ryan Redmond had been pulled over by Illinois State Police because of an unsecured license plate. He was also driving at a speed three miles over the limit. The officer found one gram in the center console after smelling cannabis. According to court documents, he later charged Redmond for failing to transport cannabis in a odor-proof container.
In the other case, People v. Molina the defendant was Vincent Molina. He was a passenger when an Illinois State Police officer smelled marijuana and searched the vehicle, discovering a small package of rolled joints. Records state that Molina informed the trooper of his medical marijuana card before the search. Molina was accused of unlawful possession by a passenger inside a vehicle. This is because he did not store the cannabis in an odorproof container.
The lawyers for Molina and Redmond said that the smell of marijuana alone shouldn’t be a probable reason to search a car, given that cannabis is no longer illegal in Illinois.
The office of Attorney General Kwame Raloul argued that the law required drivers to transport marijuana in a odor-proof container. The presence of cannabis smell is a reason to search a passenger, even if they have less than the legal limit, or a medical marijuana ID card.
Raoul’s November brief states that “it remains illegal to transport cannabis or use it in a car in an odorproof container.” The odor of raw or burned cannabis continues to give police a reason to search.
Mitchell Ness (assistant attorney general) continued his argument in front of the Supreme Court Wednesday.
He said that although cannabis is not illegal in all circumstances, it does not absolve a person of the need to follow the existing laws.
The chief justice, Mary Jane Theis, said that the main issue in the cases is road safety.
Theis stated at oral argument that “the concern here is safety of the driving public and impaired drivers,” Theis said. “We are concerned about drunk and high drivers.”
The American Civil Liberties Union, the National Association of Criminal Defense Lawyers and their state and national chapters filed a brief supporting Molina and Redmond. They wrote that using the smell of cannabis to justify a search of a vehicle would lead to a biased enforcement of Illinoisans of color.
The brief states that “police in this state have used pretexts like cannabis smell to stop and search Black or Latino drivers disproportionately for decades.” Illinois’ stop-and-search policy “unfairly subjected (Black and Latino motorists) to at will intrusions into their privacy and relegated them to second class citizenry”.
They argued that the legalization cannabis meant its presence was not indicative of contraband, crime or contraband.
Alexandra Block is the director of the ACLU of Illinois criminal legal systems project, and the co-author of this brief. She told Capitol News Illinois that a probable reason must be objective and not “malleable.”
Even the claim that you smelled cannabis is discretionary. It’s true that officers can make up the claim of smelling cannabis because they have no way to contest it. Block explained that a body-worn camera cannot detect a scent.
She said that because such accusations cannot be challenged in court, “the results are often worse for drivers who are color,” according to her.
In Molina a trial judge determined that the smell of cannabis was not enough to justify a search, as it could also be detected on the medical patients who grow marijuana themselves or the workers in cultivation centers and dispensaries. An appellate court reversed the ruling before the case was combined with Redmond’s, and brought to Illinois Supreme Court.
Most recently the Minnesota Supreme Court ruled that the smell of cannabis alone is not sufficient to prove criminally illegal drug contraband.
The Wisconsin Supreme Court decided that the smell of pot is sufficient for police to search vehicles.
The majority of state supreme court, such as those in Delaware New Jersey Pennsylvania, and Vermont have all determined that the smell of cannabis was not sufficient for police to initiate an arrest and search.
Maryland’s General Assembly enacted a law in 2013 that prohibits searches without warrants based on the smell of cannabis.
The bill was introduced by Sen. Rachel Ventura, D-Joliet, last year. It would amend the Illinois Vehicle Code to state that the smell of raw or burned cannabis “shall not be sufficient” as a reason for a search on a vehicle or person. Ventura said in June that while the bill was stalled, she would consider reviving it depending on the outcome of the court cases.
The Supreme Court is expected to make a decision later in the year.
This article was originally published by Capitol News Illinois.
Capitol News Illinois, a nonprofit news service that covers state government, is nonpartisan and nonprofit. It is distributed to over 100 newspapers, radio stations and TV channels in the state. The Illinois Press Foundation, the Robert R. McCormick Foundation and Southern Illinois Editorial Association are the main funders.
Illinois Marijuana Retailers sold $2 billion worth of legal products in 2023, including a new monthly record in December
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