The Illinois Supreme Court heard oral arguments for two consolidated cases to decide whether the aroma of cannabis alone is probable cause for law enforcement to search a vehicle. The two consolidated cased included People v. Redmond and People v. Molina. In both cases, law enforcement used the smell of cannabis as probable cause to search the individual’s vehicle. Once cannabis was found, both individuals were charged with not storing the found cannabis in an odor-proof container.

Attorney James Mertes delivered the first oral arguments for Vincent Molina. Mertes summarized Molina’s encounter with an Illinois State Police trooper, stating that the trooper based his search of Molina’s vehicle on the smell of burnt cannabis and “on that basis, and on that basis alone,” the trooper searched the vehicle. Mertes cited trial court Associate Judge Daniel P. Dalton’s decision, stating, “Mr. Molina filed a motion to suppress and in that motion argued that as a result of the legalization of the possession of cannabis, the odor of cannabis no longer established probable cause with which to justify a vehicle search.”

Chief Justice Mary Jane Theis focused most of her questions and concerns about the legislators’ original intent to keep individuals from using cannabis in a vehicle and impaired driving. Theis asked, “Why aren’t we looking at alcohol cases and how courts have looked at those”

Mertes welcomed the question, arguing that the comparison is apt. “Your question calls upon us to focus on the very issue that’s before you now,” Mertes stated. “And that issue before you is whether or not the odor of cannabis is the sole and exclusive factor to the exclusion of all other factors, or whether, in light of the legalization of cannabis, the odor of cannabis has now become one component of the overall calculus of the officer’s probable cause determination. Just as the officer may approach the vehicle and observe the odor of alcohol and consider that odor of alcohol in her probable cause evaluation, considering it with other factors, for example, impaired driving, the presence of an open container in the vehicle, other factors that the offer may consider in a DUI investigation, for example. So too, can the officer consider the odor of cannabis in the evaluation of whether there is a basis to search the vehicle.”

Mertes continued his oral arguments, stating, “The difference between the Government and our position is that the government argues in the brief that the officer may consider the totality of the circumstances, but then narrow that totality of circumstances down to one circumstance. The odor of cannabis is the be all and end all of the probable cause determination, so says the Government, and the it’s the position of the defendant appellant that that is not the be all and end all of the probable cause calculation.”

Attorney Bruce Carmen, representing Ryan Redmond, also argued that aroma alone was not probable cause and that the smell of cannabis caused by smoking in a vehicle is just “one possibility among many” for a vehicle to smell of cannabis. Theis again brought up public safety and the “real concern” that “we don’t want people really, really high driving down our highways. We’re very worried about it.”

Assistant Attorney General Mitchell Ness opened his arguments with a definition of probable cause for searching a vehicle and then stated, “Here, Illinois requires that a person transporting cannabis in a vehicle stores that cannabis in an odor proof container and prohibits the use of cannabis in any vehicle. Given that that is the state of the law, an officer who detects the odor of raw or smoked cannabis emitting from a vehicle has probable cause to search that vehicle because a reasonable person would believe that the search of the vehicle may lead to violation of those two specific crimes.”

Justice Mary K. O’Brien asked how the strong odor of cannabis “play into the odor proof container when the smell isn’t coming from a container” and how that played into the vehicle code. “There’s no prohibition against having the smell on the person, so that isn’t illegal itself,” O’Brien said. “So how does that establish the probable cause to search?”

“Cannabis is no longer contraband in every circumstance,” Ness said, “but that doesn’t absolve the person from following the laws that are in place. So if you are prohibited from using cannabis in a vehicle, and the smell of cannabis in that vehicle, on the person in the vehicle, would lead a reasonable person to believe that the cannabis was used in a vehicle, then that provides probable cause to search a vehicle.”

Ness argued that the difference in wording about odor proof containers and secured containers in the Illinois Vehicle Code and the Cannabis Regulation and Tax Act were not in conflict.

“Are there any circumstances where the odor of cannabis alone is probable cause to search?’ Justice Lisa Holder White asked. “So if a person is driving a vehicle, and the officer smells raw cannabis, then the officer does have probable cause to search?”

“Correct,” Ness said. “Because…it would lead a reasonable person to believe that there’s cannabis in the vehicle and that because it is odorous, that it is not in an odor proof container, and that is the criminal violation at issue here.”

“So, I’m confused now,” Theis said. “So the strong smell of burnt cannabis is not enough on its own to support probable for the crime of use, but the smell of raw cannabis, much less pungent, is probable cause on its own to support the…probable cause to believe a violation of the transporting it in a container?”

“I don’t think you’re confused at all,” Ness said. “Yes, I think that is correct.”

Mertes and Carmen then delivered final arguments. Mertes stated that differentiating between raw and smoked cannabis and odor proof and sealed containers “is a distinction of very little constitutional importance that our government is attempting to distract the court to focus on.”

“But ultimately, that’s not really the issue before (the court),” said Mertes. “Because whether it’s an odor-proof container doesn’t respond to the question of whether or not the odor of cannabis connotes unlawful transportation. It is a factor that the officer can consider in the probable cause. Whether the cannabis is raw, whether the cannabis odor is burnt cannabis, is a distinction of little to no constitutional importance to this court’s determination.”

Carmen ended his closing arguments by stating that the smell of cannabis in a vehicle “is a treasure trove of a pretext, and unfortunately, racial discrimination.” Carmen referenced ACLU statistics on searches of vehicles driven by people of color rather than Caucasians.

“It shows that this court needs to be cautious with allowing something as subjective as olfactory senses to allow officers to search vehicles on a pretext.”

The Supreme Court Justices will take the arguments under advisement and make a decision later this year. For more Illinois cannabis industry news, visit here.

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