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Illinois Judge Rules Weed Odor is Not Probable Cause For Searches

· Nov 24, 2021

An Illinois judge ruled last week that the odor of raw cannabis is not sufficient grounds for police to search a vehicle without a warrant during a traffic stop.

Daniel J. Dalton, Associate Judge of the 14th Judicial Circuit, issued the ruling in response to a motion to suppress evidence in the case of Vincent Molina, a medicinal cannabis patient arrested for marijuana possession last year.

In December 2020, Molina was a passenger in a vehicle traveling on Interstate 88 in Whiteside County, a rural area of northwestern Illinois, when it was pulled over for speeding by a state trooper. After claiming that he smelled raw cannabis, the trooper performed a search of the vehicle and arrested Molina for misdemeanor cannabis possession after discovering 2.6 grams of flower.

Molina was arrested despite the decriminalization of small amounts of cannabis in Illinois in 2019 with the passage of the Illinois Cannabis Regulation and Tax Act. The law also legalized regulated sales of adult-use cannabis, which began in the state in January 2020.

James Mertes, an attorney specializing in criminal and constitutional law who is representing Molina in the case, said in a telephone interview that his client was accused of possessing cannabis that “was not being transported in accordance with the law.”

Mertes argued in court that the search was unconstitutional because the trooper did not have probable cause to search based solely on the aroma of marijuana.

“In order to search a vehicle, of course, a police officer must have probable cause to believe that a crime is occurring,” he explained. “The odor of raw cannabis no longer provides that probable cause to believe a crime is occurring, because there is just as much probable cause to believe that no crime is occurring when the officer smells raw cannabis.”

The judge agreed, ruling in a decision handed down on Friday that “the court finds the odor of raw cannabis alone is insufficient to establish probable cause,” according to local media reports.

Dalton found that the law enforcement officer “did not indicate any other reason for his suspicions or his search other than the smell of raw cannabis” and noted that “Molina did provide a medical use license to (the trooper) prior to the search of the vehicle.”

“There are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis,” he wrote in his decision.

Dalton added that to rule otherwise would subject “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.”

“This was a momentous decision,” Mertes told reporters after Dalton handed down his ruling.

“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.”

Although the state has the option of appealing Dalton’s decision, Mertes believes the ruling could set a precedent for similar cases.

“It does have significant impact in shaping the law and I think it’s a logical extension of the law in light of the fact that cannabis possession has been decriminalized in the state of Illinois,” he told High Times.

“The decision of whether to appeal today’s ruling belongs to the government,” Mertes said. “If the state does appeal, we will continue to vigorously defend the constitutional rights of our client at the appellate levels.”

After Dalton granted the motion to suppress the evidence, Molina said that he is “honored to have been part of such an important decision.” 

“This case was much more important than me,” he added. “It was about our right to be free from unreasonable searches for legal conduct. I am just grateful to have been a part of protecting that right.”

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An Illinois judge ruled last week that the odor of raw cannabis is not sufficient grounds for police to search a vehicle without a warrant during a traffic stop.

Daniel J. Dalton, Associate Judge of the 14th Judicial Circuit, issued the ruling in response to a motion to suppress evidence in the case of Vincent Molina, a medicinal cannabis patient arrested for marijuana possession last year.

In December 2020, Molina was a passenger in a vehicle traveling on Interstate 88 in Whiteside County, a rural area of northwestern Illinois, when it was pulled over for speeding by a state trooper. After claiming that he smelled raw cannabis, the trooper performed a search of the vehicle and arrested Molina for misdemeanor cannabis possession after discovering 2.6 grams of flower.

Molina was arrested despite the decriminalization of small amounts of cannabis in Illinois in 2019 with the passage of the Illinois Cannabis Regulation and Tax Act. The law also legalized regulated sales of adult-use cannabis, which began in the state in January 2020.

James Mertes, an attorney specializing in criminal and constitutional law who is representing Molina in the case, said in a telephone interview that his client was accused of possessing cannabis that “was not being transported in accordance with the law.”

Mertes argued in court that the search was unconstitutional because the trooper did not have probable cause to search based solely on the aroma of marijuana.

“In order to search a vehicle, of course, a police officer must have probable cause to believe that a crime is occurring,” he explained. “The odor of raw cannabis no longer provides that probable cause to believe a crime is occurring, because there is just as much probable cause to believe that no crime is occurring when the officer smells raw cannabis.”

The judge agreed, ruling in a decision handed down on Friday that “the court finds the odor of raw cannabis alone is insufficient to establish probable cause,” according to local media reports.

Dalton found that the law enforcement officer “did not indicate any other reason for his suspicions or his search other than the smell of raw cannabis” and noted that “Molina did provide a medical use license to (the trooper) prior to the search of the vehicle.”

“There are a number of wholly innocent reasons a person or the vehicle in which they are in may smell of raw cannabis,” he wrote in his decision.

Dalton added that to rule otherwise would subject “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.”

“This was a momentous decision,” Mertes told reporters after Dalton handed down his ruling.

“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.”

Although the state has the option of appealing Dalton’s decision, Mertes believes the ruling could set a precedent for similar cases.

“It does have significant impact in shaping the law and I think it’s a logical extension of the law in light of the fact that cannabis possession has been decriminalized in the state of Illinois,” he told High Times.

“The decision of whether to appeal today’s ruling belongs to the government,” Mertes said. “If the state does appeal, we will continue to vigorously defend the constitutional rights of our client at the appellate levels.”

After Dalton granted the motion to suppress the evidence, Molina said that he is “honored to have been part of such an important decision.” 

“This case was much more important than me,” he added. “It was about our right to be free from unreasonable searches for legal conduct. I am just grateful to have been a part of protecting that right.”