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Raw Cannabis Odor No Longer Cause for Vehicle Search in Illinois

· Nov 22, 2021
To rule otherwise, Dalton contended, 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 Cann ...

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An Illinois judge last week ruled that the odor of unburnt cannabis does not give probable cause to police for a warrantless search during traffic stops, WREX reports. In the ruling, Judge Daniel P. Dalton said, “there are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis … the court finds the odor of raw cannabis alone is insufficient to establish probable cause….”

To rule otherwise, Dalton contended, 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.” — Dalton via WREX

The case stems from a December 2020 traffic stop in Whiteside County when an Illinois State Trooper stopped a vehicle for speeding and, after smelling the odor of raw cannabis, searched the vehicle and arrested the passenger for just over two grams of cannabis. Cannabis has been legal for adults in Illinois since 2019.

Dalton noted that the passenger also provided a valid medical cannabis ID prior to the search of the vehicle.

Attorney James Mertes, who represented the defendant, described Dalton’s decision as “momentous.”

“It represents an important and necessary expansion of our constitutional protections,” he said in the report. “Today’s decision protects citizens from unreasonable searches based upon conduct that is no longer illegal.”

Illinois Sheriffs Association Executive Director Jim Kaitschuk told WICS that the decision “will become less safe” because of the decision.

“We don’t know how much is in a vehicle,” Kaitschuk said in the report. “I mean it can smell pretty strong regardless of the amount I find it problematic…”

The state can still appeal the decision.