Quick Take on Illinois Supreme Court Opinion Issued Thursday, December 5, 2024
A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Thursday, December 5.
People v. Molina, 2024 IL 129237
By Kerry J. Bryson, Office of the State Appellate Defender
Earlier this year, the Illinois Supreme Court decided People v. Redmond, 2024 IL 129201, holding that the odor of burnt cannabis emanating from a vehicle, alone, no longer provides probable cause to search in light of the legalization of recreational use of marijuana in Illinois. During briefing and argument in the Supreme Court, Redmond’s case was consolidated with People v. Molina, No. 129237, which presented nearly the same question, the only difference being that Molina involved the odor of raw cannabis. Today, in a divided opinion, the Court held that the odor of raw cannabis, standing alone, does provide probable cause to search a vehicle.
Vincent Molina was charged with a violation of 625 ILCS 5/11-502.15, which prohibits possession of cannabis in a motor vehicle unless it is stored in a “sealed, odor-proof, child-resistant” container). Molina filed a motion to suppress. At the hearing on that motion, Trooper Ryan Wagand testified that Molina was a passenger in a vehicle stopped for speeding in December 2020. During the stop, Wagand smelled the odor of raw cannabis emanating from the vehicle and conducted a non-consensual, warrantless search based solely on that smell. Wagand discovered several rolled joints in the vehicle’s center console, as well as a plastic container in the glove box that had suspected cannabis in it. The circuit court granted the motion to suppress, holding that in light of legalization, the odor of raw cannabis is insufficient to establish probable cause. But the appellate court reversed, holding that the smell of raw cannabis alone provides probable cause because, even post-legalization, the manner of possession, transportation, and consumption remains regulated.
The Supreme Court majority agreed with the appellate court. Notably, the majority opinion in Molina and the opinion in Redmond, overlap significantly, in particular the sections discussing the law as it relates to the constitutional protections against unreasonable searches, probable cause, and the evolution of cannabis law in Illinois. See Molina, 2024 IL 129237, ¶¶16-40, Redmond, 2024 IL 129201, ¶¶20-43. In Molina, however, the Court went on to consider the interplay between two statutory provisions covering possession of cannabis within a motor vehicle.
410 ILCS 705/10-35(a)(2)(D) requires cannabis possessed in a vehicle to be in a “reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving,” and 625 ILCS 5/11-502.15(b) and (c) require cannabis possessed in a vehicle to be in a “sealed, odor-proof, child-resistant” container. Molina argued that the two provisions could not be harmonized and that the odor-proof container requirement in the Vehicle Code was invalid because it was preempted by the enactment of Section 10-35(a)(2)(D) in the Cannabis Regulation and Tax Act. Applying fundamental principles of statutory construction, however, the Court concluded that the legislature intended both of these provisions to be effective and thus the odor-proof container requirement was upheld. (In footnote 7, the Court noted that the legislature has considered amending the Vehicle Code to eliminate the odor-proof container requirement and/or the use of odor as the sole basis for a search and suggested that, if such an amendment is made, the legislature should also consider amending the Regulation Act for the sake of consistency.)
In light of the validity of the odor-proof container requirement, the Court held that an officer who is trained to distinguish between the smell of burnt cannabis and raw cannabis, and who smells the odor of raw cannabis coming from a vehicle, has at least a reasonable belief that raw cannabis is in the vehicle and is stored in a container that is not odor-proof. And, because storage of cannabis in a vehicle in a non-odor-proof container violates Section 11-502.15 of the Vehicle Code, a warrantless search is justified by the odor of raw cannabis alone. In reaching this conclusion, the Court observed that different inferences arise from the odor of burnt cannabis, which may suggest either prior or current cannabis use, and the odor of raw cannabis, which “strongly indicates the current presence of cannabis,” and suggests a near certainty that cannabis is being possessed in violation of the odor-proof container requirement.
Justice O’Brien authored a dissent, joined by Justice Theis. The dissent saw no reason to distinguish between the odors of burnt and raw cannabis in the probable cause analysis, noting that because cannabis is generally legal in either form, “there is a low degree of suspicion that attaches to its odor.” Because cannabis is an organic matter, and “organic matter smells,” the odor of raw cannabis could be present on a person or in a vehicle through prior contact and does not necessarily indicate its current presence. The dissent would have treated the odor of raw cannabis like the odors of burnt cannabis and of alcohol and would have held that, absent additional factors, odor alone is not sufficiently inculpatory to provide probable cause for a warrantless search.
Justice Holder White took no part in the decision.