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Illinois Judge Rules Weed Odor is Not Probable Cause For Searches |

Last week, an Illinois judge decided that the mere odour of raw marijuana is insufficient to allow police to stop a vehicle for a traffic violation without a warrant.

The ruling was issued by Daniel J. Dalton (Associate Judge, 14th Judicial Circuit) in response to Vincent Molina’s motion to suppress evidence. Vincent Molina is a medical cannabis patient who was arrested last year for possession of marijuana.

Molina was a passenger on a car that was traveling along Interstate 88 through Whiteside County. This rural region is in northwest Illinois. A trooper pulled the vehicle over for speeding in December 2020. Molina claimed he smelled raw marijuana. The trooper then searched the vehicle and arrested him for misdemeanor cannabis possession. He had also found 2.6g of flower.

Molina was taken into custody despite Illinois having decriminalized small amounts cannabis. The Illinois Cannabis Regulation and Tax Act of 2019 made it possible for Molina to be arrested. It also allowed for the legalization of adult-use marijuana, as well as regulated sales. The state began selling it in January 2020.

Court declares warrantless search unconstitutional

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 stated in court the search was illegal because the trooper didn’t have probable cause for the search solely based upon the smell 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 Chronic News.

“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.”