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Blog Relating to Smell of Cannabis for PC

Terry Dodds Feb. 21, 2022

Recently while reading an email that I receive daily from the Illinois State Bar Association I was alerted to a case that caught my attention written about by Alfonso Cerna of WQAB8 News, located in Moline, IL, and owned by TEGNA Inc. Mr. Cerna was writing about a case he was covering in the Circuit Court of Whiteside County titled People v. Vincent Molina.

As reported by Mr. Cerna, Mr. Molina was a passenger in a motor vehicle being driven by Kayla Cervantes, which was stopped for a traffic violation. During the traffic encounter with Ms. Cervantes, Illinois State Trooper Wagand apparently detected the smell of raw cannabis. According to the article, Trooper Wagand used the odor he smelled as the basis to conduct a search the vehicle driven by Ms. Cervantes, despite the fact that Mr. Molina produced a copy of his Illinois medical cannabis registration card. The search led to Molina’s arrest for a misdemeanor amount of cannabis.

Molina’s attorneys, James Mertes and Nicholas Rude filed a Motion to Suppress the cannabis seized, arguing that the evidence seized was secured as a result of an illegal search, and therefore fruit of the poisonous tree. Mr. Cerna reported that Mertes and Rude argued that the odor of cannabis alone “could not be used as a basis for police to search vehicles after the recent decriminalization of cannabis.”

This is the correct ruling and is analogous to the already well-established rule often repeated in DUI cases that the “odor of alcohol” alone is not enough to establish probable cause. It is also a welcome change. As a criminal defense attorney that has been practicing law now for over 20 years, I cannot begin to tell you about the countless number of probable cause statements that I’ve read that begin with an officer smelling the “strong and distinct odor of raw (or burnt) cannabis emanating from the vehicle.”

In the State of Illinois, possession of certain amounts of weed is no longer criminal. Therefore, the smell of burnt or raw cannabis on someone really should no longer shock the conscious; just like those all-too familiar human ashtrays we sometimes come into contact with while out in public. The judge here made the correct ruling, especially since Mr. Molina was a passenger. In his Order, Associate Judge for the Fourteenth Judicial Circuit, Daniel P. Dalton, ruled that the search could not withstand Constitutional scrutiny, primarily because of the many lawful ways the odor of raw cannabis might transfer to a wholly innocent law-abiding citizen while coming into contact with cannabis that is lawfully possessed. In Mr. Molina’s case, Trooper Wagand’s training should have told him to make a mental note of the fact that Mr. Molina was likely high and went about his other business related to the traffic stop—maybe even while jokingly suggesting to Mr. Molina that he was probably feeling pretty good. His training most certainly should have instructed him that he had no probable cause to arrest the man. Now that ISP has been put on notice—continuing to detain citizens for the mere smell of raw or burnt cannabis quite possibly could put the organization in jeopardy of civil litigation.