Bigger implications for odor-proof wording in Illinois Senate Bill
Dec. 5, the Illinois Supreme Court ruled in the People v. Molina case that raw cannabis aroma alone is sufficient probable cause for a warrantless search of a motor vehicle “based on the stringent ‘odor-proof’ container requirement in the Vehicle Code.” House Bill 0042, sponsored by Sen. Rachel Ventura, would remove the requirement that cannabis within any area of a motor vehicle must be in an odor-proof container.
HB0042 provides that “If a motor vehicle is driven or occupied by an individual 21 years of age or over, a law enforcement officer may not stop or detain the motor vehicle or its driver nor inspect or search the motor vehicle, the contents of the motor vehicle, or the operator or passenger of the motor vehicle solely based on the odor of burnt or raw cannabis.”
The wording change in the Vehicle Code could have bigger implications for possible Illinois Supreme Court rulings.
The Illinois Supreme Court previously had ruled in People v. Redmond that “burnt” cannabis odor was not sufficient probable cause for a warrantless search of a vehicle. The difference in the conflicting decisions in People v. Redmond and People v. Molina, which had been consolidated for oral arguments in January 2024, solely hinged on Illinois’ “odor-proof, child-resistant cannabis container” language in the Illinois Motor Vehicle Code, which states, “No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a secured, sealed or resealable, odor-proof, child-resistant cannabis container that is inaccessible.”
Without the odor-proof container wording in the Vehicle Code, People v. Molina may have followed the same decision as People v. Redmond as insufficient evidence for a warrantless search of a vehicle. Instead, Illinois has a confusing and somewhat conflicting law that allows law enforcement to use the smell of raw cannabis alone as probable cause to search a motor vehicle but does not allow the smell of burnt cannabis alone as probable cause.
The majority ruling for People v. Molina stated, “We recognize the difference in our probable cause analysis based on the odor of burnt cannabis and the odor of raw cannabis. In Redmond, we held that ‘the odor of burnt cannabis, alone, is insufficient to provide probable cause for police officers to perform a warrantless search of a vehicle.’ In doing so, we compared the odor of burnt cannabis to the odor of alcohol because the possession of both cannabis and alcohol is lawful under some circumstances and unlawful under other circumstances. There is a key distinction between the odor of alcohol and the odor of cannabis; namely, alcohol, unlike cannabis, does not have a raw and burnt form.”
Justice Mary Kay O’Brien dissent in part, stated, “It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption. If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.”
O’Brien’s dissent continued, stating, “It (the raw smell of cannabis) can easily permeate one’s hair and clothing in a manner similar to a burnt compound of the same material. So, common sense would indicate that a sober person can come into contact with an alcoholic beverage through drinking it or having some spill on his clothing and that odor would remain with him for a period of time. The same is true of raw cannabis. A person coming into contact with raw cannabis, through touch or simple proximity, or possibly by opening and resealing the odor-proof container, would also carry that odor with him for a period of time even if the person did not possess the raw cannabis on his person or in his vehicle in violation of the odor-proof requirement.”
For more Illinois cannabis industry news, subscribe to Illinois News Joint’s newsletter here.
To find cannabis-friendly events in Illinois, visit here.
For Illinois News Joint reviews, visit here.
For more information on News Joint Bar Service, visit here.
For News Joint Printing services, click here.