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Odor of cannabis no longer provides basis for vehicle search in Illinois

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Marijuana-Arrest-Generic

A Whiteside County judge made the ruling on Friday.

MORRISON, Ill. (WREX) — A Whiteside County court judge has ruled that the odor of raw cannabis alone does not provide probable cause for an officer to perform a warrantless search of a car in Illinois. 

Illinois decriminalized the possession of certain amounts of cannabis in June of 2019. After that, however, Illinois police officers still used the odor of cannabis as a basis to search motor vehicles during traffic stops.

On December 3, 2020, an Illinois State Trooper stopped a motor vehicle on Interstate 88 in rural Whiteside County for speeding.

After smelling the odor of raw cannabis, the officer searched the vehicle and arrested its passenger, Vincent Molina, for misdemeanor possession of 2.6 grams of cannabis.

The defendant's lawyers filed a motion to suppress the evidence. The issue presented to the Court was whether the odor of raw cannabis can be used as a basis for police to search a motor vehicle, in light of the recent decriminalization of possession of cannabis.

On Friday, a Whiteside County Court ruled that the odor of raw cannabis alone does not provide probable cause for a police officer to perform a warrantless search of a motor vehicle in the State of Illinois.

Judge Daniel P. Dalton ruled that “there are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis.” Judge Dalton ruled, “the court finds the odor of raw cannabis alone is insufficient to establish probable cause….”

The Court found that to rule otherwise would place “not only the defendant, but also any person in Illinois aged 21 or above, in a position where they could exercise their rights under The Cannabis Regulation and Tax Act only to forfeit their rights under the…United States Constitution and/or…the Illinois Constitution, even though they have acted wholly within the bounds of the law. The court declines to impose this untenable situation upon the defendant or any similarly situated person.”

In its ruling, the Court noted that the Illinois 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 to [the trooper] prior to the search of the vehicle.”

“This was a momentous decision,” said Attorney James Mertes, Molina’s attorney. “It represents an important and necessary expansion of our constitutional protections,” Mertes added. “Today’s decision protects citizens from unreasonable searches based upon conduct that is no longer illegal,” he said.

The state can still appeal the decision, according to Mertes. 

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Andy Carrigan is the Social Media & Digital Content Manager at WREX. He joined the 13 WREX team as a photographer in 2016 after graduating from Northern Illinois University.

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