Battle of the LCBF Bands

Hill urged the Illinois Supreme Court to recognize that since cannabis use was no longer a criminal activity, it was no longer contraband, and therefore insufficient to establish probable cause. Instead, Hill encouraged the Court to treat cannabis like alcohol, tobacco and guns. The Court addressed each of those alternatives.

Regarding the decriminalization of cannabis, Hill argued that the status of cannabis as contraband was changed by reducing its penalty for small amounts to a civil violation, while the State argued that it remains contraband. The Hill decision upheld the search because in 2017 any amount of cannabis was illegal, even if it had been decriminalized. The Hill Court harkened back nearly a century to the United States Supreme Court decision in Carroll v. United States, 21 which recognized the “automobile exception” to the search requirement, at a time when cars were about as new as i-phones are now. The offense addressed in Carroll, the illegal transportation of liquor possessed during Prohibition, was a federal misdemeanor punishable by fine only for the first offense. The Carroll Court rejected the argument that the character of the offense negated the necessity of arrest, since the contraband liquor had to be found and seized.22 Similarly, the Court in Hill found that nobody possesses a legitimate privacy interest in an item which is prohibited.23 For the same reason, the Court thus found that Hill’s argument regarding the decriminalization of small amount possession of cannabis was “fatally flawed.”24

The Court then turned to Hill’s argument that since medical users are capable of legally possessing cannabis, the officers needed more facts to suggest the cannabis was illegally owned or connected to another criminal activity before probable cause existed. The Court disagreed, reasoning that “such users must possess and use cannabis in accordance with the Act,”25 under the statute, no driver or passenger may possess medical cannabis in something other than a sealed, odor proof, and child-resistant medical cannabis container, and a violation of that provision is a Class A misdemeanor.26

The Supreme Court further concluded in Hill that its holding comported with its treatment of alcohol. 27 Alcohol, it points out, is lawful under some circumstances but remains unlawful under others, like possession by those under 21, or in the passenger area of a vehicle in other than its original, unopened container.28

21 Carroll v. United States, 267 U.S. 132 (1925). 22 See Carroll, 267 U.S. at 154. 23 Hill, 2020 IL 124595, at ¶ 29. 24 Id. at ¶ 31. 25 Id. at ¶¶ 32-34. 26 Id. at ¶ 34; see 625 ILCS 5/11-502.1 (b) and (c). 27 Id. at ¶ 36. One should note that the statutes regulating possession of medical cannabis and “adult use” cannabis within a vehicle are found next to the statute on Transportation or

Possession of Alcohol of Alcoholic Liquor in a motor vehicle.

See 625 ILCS 5/11-502, 502.1 and 502.15, which are sequential statutes. 28 Hill, 2020 IL 124595, at ¶ 36.

THE STRIBLING CASE ITSELF

Then came legalization. As of 2020, the possession of a small amount of cannabis is no longer unlawful generally. And that change led to the critical conclusion in Stribling: “We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with the supreme court’s holding in Hill and its treatment of the analogous situation regarding alcohol. … Thus, the supreme court’s holding in Stout is no longer applicable to post-legalization fact patterns.”29

Obviously, in light of legalization and the decision in Stribling, the legal landscape for a vehicle search based upon the smell of cannabis alone may have changed. But it is possible the analysis has not changed entirely. In Stribling, the facts of the 2020 stop are uncontroverted. The police officer stopped the defendant’s vehicle based on a violation of ordinary non-jailable traffic laws. The officer smelled a strong odor of burnt cannabis from inside the vehicle. The defendant/driver told the officer that someone had smoked inside the vehicle “a long time ago.” Based on these observations, the officer searched the vehicle and found an illegal weapon.30 The appellate court held that the smell of burnt cannabis coupled with the defendant/driver’s statement that “someone” smoked in the vehicle “a long time ago” was not enough to conclude there was a crime being committed in the officer’s presence, and thus there was no probable cause to search the vehicle.31

Importantly, the precise fact pattern presented in Stribling is critical to the Court’s decision. The appellate court found it decisive that it was legal to possess cannabis in small amounts, and that there was no reason to believe the driver was impaired, or that anyone in the car was currently smoking cannabis; there was no cannabis paraphernalia observed, and none of the vehicle occupants made any furtive movements.32 From the specific facts presented, the Court concluded “there was no evidence that would lead a reasonable officer to conclude that there was a substantial chance of criminal activity afoot.”33 It logically follows that the analysis, and outcome, easily could change based on different circumstances in a future case.

In a quizzical observation, the Court also appeared to find relevant that it is legal to have smoked cannabis and then drive as long as the concentration in the driver’s blood or urine did not pass the threshold amount.34 One might wonder why the Court found that technically correct observation relevant to its discussion within this search-and-seizure context, particularly since it then

29 Stribling, 2022 IL App (3d) 210098, at ¶ 29. 30 Id. at ¶ 4. 31 Id. at ¶ 28. 32 Id. 33 Id. 34 Id.