Committee advances bill to ban vehicle searches based on smell of cannabis

An Illinois Senate committee advanced a bill on Tuesday that would strictly limit police’s ability to search a vehicle after smelling cannabis.

The Senate Criminal Law Committee voted 7-3 to advance Senate Bill 42, which would eliminate the requirement that cannabis be transported in vehicles in an odor-proof container. It would also prohibit police from searching a vehicle based only on the odor of burnt or raw cannabis if the occupants are at least 21 years old.

The bill comes after the Illinois Supreme Court issued a pair of rulings last year. The court ruled in September that the smell of burnt cannabis did not give police probable cause to search a vehicle, but three months later ruled the smell of raw cannabis was probable cause for a search.

“This sets up a contradictory situation for law enforcement,” bill sponsor state Sen. Rachel Ventura, D-Joliet, told the committee.

Illinois law requires drivers to store cannabis in a “sealed, odor-proof, child-resistant cannabis container” when in a car, and it must be “reasonably inaccessible while the vehicle is moving.” When the smell of raw cannabis is detected, that indicates the statute is being violated, the court ruled in December.

“The odor of raw cannabis strongly suggests that the cannabis is not being possessed within the parameters of Illinois law,” Justice P. Scott Neville wrote in the court’s majority opinion in December. “And, unlike the odor of burnt cannabis, the odor of raw cannabis coming from a vehicle reliably points to when, where, and how the cannabis is possessed – namely, currently, in the vehicle, and not in an odor-proof container.”

Justice Mary Kay O’Brien wrote a dissenting opinion in the December ruling.

“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,” O’Brien wrote. “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.”

The American Civil Liberties Union of Illinois supports Ventura’s bill.

“Drivers and passengers are legally able to possess cannabis in our state,” Alexandra Block, director of the Criminal Legal System and Policing Project for the ACLU of Illinois, said in a statement. “This confusion over the odor of cannabis should not be a trigger for officers to continue to harass and delay motorists with intrusive searches.”

But law enforcement warned the bill jeopardizes public safety by making it harder for police to catch drug traffickers and drivers impaired by cannabis.

Illinois Sheriffs’ Association Executive Director Jim Kaitschuk provided the committee an odorless container with raw cannabis to demonstrate people can transport cannabis in compliance with the law.

“Through our training and experience, we can make this distinction” between burnt and raw cannabis, Kaitschuk said.

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