In the Director’s Chair

proceeded to knock down the straw man, stating “the evidence presented does not show that the officer had any concerns with the defendant’s blood concentration or any impaired driving.”35 If the officer had noticed reasonable grounds of impairment by cannabis in addition to the smell of cannabis, it is possible the detainment and search would be constitutionally valid, regardless of the driver’s eventual guilt or innocence of the DUI (Cannabis) charge.

The opinion also failed to address the fact that it remains illegal to possess cannabis in a motor vehicle under most conditions.36 That is legally relevant to a Fourth Amendment analysis since, if the trier of fact believed the officer smelled fresh cannabis within the vehicle, that may be probable cause for the search, since possession of cannabis today still must be in an odor-proof container. Similar to a broken seal of a bottle of liquor, the amount of alcohol/cannabis may be legal, but the method of transportation within a vehicle would be illegal and allow for the search.

Still, the stipulated facts of Stribling were for “burnt,” i.e, already smoked and not fresh or burning, cannabis. So, is the lesson of Stribling then that the aroma of “burnt” cannabis is irrelevant but fresh cannabis possibly may be relevant? It is hard to reconcile this opinion and the statute criminalizing possession of cannabis in a vehicle without concluding that the Stribling court believes

35 Id. 36 See Possession of Cannabis in Motor Vehicle, 625 ILCS 5/11-502.15, which is a Class A misdemeanor. the exception allowing for vehicle searches upon smell of cannabis hinges upon the distinction between “burnt” and “fresh” cannabis.

Moreover, the holding of Stribling might be reexamined. The Stribling court asserted that it applied Hill and its reasoning, but also concluded that “the supreme court’s holding in Stout is no longer applicable to post-legalization fact patterns.”37 In fact, the officer in Hill detected “raw” cannabis. But Stout involved detection of “burning” cannabis, which was held to justify the search, and it is still illegal to smoke cannabis within a vehicle.38 So does Stout really not apply to post-legalization fact patterns?

Stribling, of course, is just one opinion from one appellate panel under one set of factual circumstances. Once additional courts, including the Illinois Supreme Court, weigh in, we may get a more definitive answer. When a state Supreme Court in a state that has legalized recreational cannabis use decides a case like this, moreover, it is entirely possible that the United States Supreme Court will weigh in. Until then, certainly, we will likely see a number of decisions where small changes in the operative facts yield a wide variety of results.

37 Stribling, 2022 IL App (3d) 210098, at ¶ 29. 38 Even the law that limited penalties on simple possession reiterated that same law keeps it illegal to smoke cannabis within a vehicle: 410 ILCS 705/10-35(a) (3) (D).

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