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Smell Of Marijuana No Longer Probable Cause In Illinois

The smell of raw marijuana, since legalization, doesn’t give probable cause for warrantless search, a court ruled Friday

National Cannabis Industry Association

The smell of marijuana, since legalization, does not give probable cause for officers to do a warrantless search during traffic stops in Illinois.

Whiteside County court Judge Daniel P. Dalton made the ruling on Friday, reports WCIS.

Illinois legalized adult possession of limited amounts of cannabis in June of 2019, reports WREX. But pot-hating Illinois police officers still used the odor of cannabis as a basis to search motor vehicles during traffic stops.

Cops Think This Smell Ruling Stinks

Local law enforcement officials complain this common-sense ruling could cause issues when officers stop people who have recently smoked weed. Marijuana advocates say the ruling underlines the legal nature of Cannabis. They believe it will curb abuses by law enforcement where they use the weed as an excuse to violate people’s rights.

“In Illinois, you can transport legally cannabis as long as it’s on odorless container well that right there on its face means that you shouldn’t be able to smell it,” bellyaches Sangamon County Sheriff Jack Campbell.

Campbell seems to believe we live in a perfect world. You know the one I mean. This is a place where folks won’t ever be curious about the smell of their newly purchased herb. And they’ll never ever crack open the container for a sniff.

But Sheriff Campbell said this will only create more problems for law enforcement trying to stop those driving while impaired.

“If you can smell it that tells law enforcement that’s there’s either cannabis being consumed in the car and often times the smell of burnt or unburnt or raw cannabis is difficult to tell the difference in.”

Illinois Sheriffs Association Is Not Happy

The Illinois Sheriffs Association claim they see many people “driving under the influence of marijuana.” They want you to believe this is a big problem.

“We don’t know how much is in a vehicle, “said Jim Kaitschuk, executive director for ISA. “It can smell pretty strong regardless of the amount. I find it problematic.

“I think roads will become less safe because of action like this,” Kaitschuk said.

Whiteside County Man Beats The Charges

It all started when a state trooper stopped an Illinois man for speeding. 

On December 3, 2020, an Illinois State Trooper stopped a 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.

But Molina fought the law, and Molina won.

The defendant’s lawyers filed a motion to suppress the evidence. The question facing the Court was whether to use the odor of raw cannabis as a basis for police to search a motor vehicle. This, of course, is in light of the recent legalization of possession of cannabis.

‘A Number Of Wholly Innocent Reasons’ For Smell

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 Appeal

The state of Illinois can appeal the decision.

“You may very well run into a situation where not only does the owner of the vehicle have raw cannabis, but they also have burnt so how are we supposed to make a distinction there,” said Kaitschuk.

Well, Jim… where do we start? It would be pretty easy for any competent officer to “make that distinction,” sir. That would be because they are two different and distinct smells. Two words for you buddy: Officer Training. Two more: Take it.

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