Raw marijuana smell enough for search, Illinois Supreme Court rules in Whiteside County case

The smell of raw marijuana alone is enough probable cause for an officer to search a vehicle, the Illinois Supreme Court ruled Thursday, reversing the decision of a Whiteside County judge and upholding the appellate court’s ruling.

The case stems from a traffic stop in December 2020 on Interstate 88 in Whiteside County where the car was pulled over for speeding and the Illinois State trooper initiated a search of the vehicle after smelling raw marijuana.

The trooper found Vincent E. Molina, 38, of Moline, who was a passenger in the car, had several joints of marijuana, court records show.

Molina was charged with misdemeanor possession of marijuana by a passenger. State law requires marijuana be in a sealed, odorless container while in a vehicle.

Molina’s attorney, James Mertes of Sterling, argued in a Whiteside County court filing that in the wake of Illinois’ legalization of marijuana, the trooper had no probable cause to search the vehicle because there are many lawful reasons person might smell like marijuana.

Mertes likened the situation to an officer smelling alcohol during a traffic stop.

“The smell of alcohol alone has never been found to justify a warrantless search of a vehicle,” he said in his brief.

While Rock Island County Associate Judge Daniel P. Dalton agreed with Mertes, the appellate court did not.

The appellate ruling recognized that changes in state law legalized the possession of small amounts of marijuana, but there remained “(1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess.”

The Illinois Supreme Court agreed, noting that because the law requires marijuana to be in an odorless container, the trooper’s ability to smell raw marijuana “would create at least a reasonable belief or fair probability that raw cannabis was in the vehicle stored in a container that was not odor-proof,” Justice P. Scott Neville Jr. wrote in the decision.

The decision was signed on to by three other justices. Justice Mary K. O’Brien dissented and Chief Justice Mary Jane Theis dissented. Justice Lisa Holder White did not participate in the decision.

Thursday’s ruling follows another decision in September by the high court that the smell of burnt cannabis, by contrast, is not enough probable cause to search 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,” Neville wrote.

The smell of raw marijuana, in contrast, “reliably points to when, where, and how the cannabis is possessed—namely, currently, in the vehicle, and not in an odor-proof container," and thus in violation of the law, Neville continued.

Neville noted the trooper in this case was trained in how to distinguish the smells of raw and burnt marijuana.

The decision also notes legislation filed in the Illinois Senate in January 2023 that, if passed, would have explicitly ruled out the smell of burnt or raw cannabis as probable cause for searching a vehicle or person, as well as another bill in the Illinois House that would have eliminated the odor-proof container requirement.

O’Brien, who wrote the dissent, said she disagreed that the smell of raw marijuana should be treated differently than burnt marijuana or alcohol.

“I dissent from the majority opinion simply to point out the absurdity of this inconsistency,” she said.

She said it “makes no sense” to conclude that raw cannabis is higher proof that a crime is taking place than burnt cannabis, which may suggest recent use.

“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,” she wrote in her dissent.

Mertes said he agreed with the dissent and they plan to file a petition with the U.S. Supreme Court, asking it to hear the case. He said he likes their odds that the federal court may consider the case because it involves Fourth Amendment issues and there is a divergence in how state courts treat marijuana where it is legal.

“This case isn’t ultimately about cannabis rights," he said. “In my interpretation, it’s really about our constitutional rights, not about whether cannabis should be legal or not. The issue is that some states have legalized cannabis and is the odor of that legal substance in a state where it’s been legalized the basis to search a motor vehicle.”