Does Cannabis Still Matter as Probable Cause?

BY JUDGE JAMES SIMONIAN

Arecent appellate ruling that would have been unthinkable a few years ago proves something entirely expected: the ever-changing legal status of small amounts of cannabis affects more than just its possession.

In 2020, Illinois legalized the possession of small amounts of cannabis, or marijuana, in most circumstances. Now, there are 19 other states including Washington, D.C. that have essentially legalized recreational marijuana use within limits.

Most earlier Illinois precedent comes from cases decided at a time when cannabis was illegal and criminal. A few years ago, cases confronted issues posed by the newer statute which made small amounts of cannabis illegal but decriminalized. That important distinction changed little in search-and-seizure cases. Now that small amounts of cannabis are essentially legalized, however, even more precedent may change.

The recent appellate court case of People v. Stribling, 1 affirmed a trial

1 2022 IL App (3d) 210098. Since this was written, another vehicle search based upon “burnt cannabis” was suppressed and affirmed by the same appellate district. See People v. Redmond, 2022 IL

App (3d) 210524. court order suppressing the fruits of a vehicle search based upon the smell of burnt cannabis, a search which not long ago would have been upheld easily. The court reasoned that since cannabis is now legal in small quantities in most circumstances, the analysis must change because its precedent was based on pre-legalization fact patterns and law.2 Judge James Simonian Is this search based upon the smell of burnt cannabis something has been an that obviously deserves another look associate following cannabis legalization? Is judge in Lake County since 2010 and is it an interesting ruling of one appellate district on an issue that has not been ruled upon by the Illinois currently Supreme Court since the legalization assigned to of small amounts of cannabis? Is it the Misdemeanor/ Traffic Division. In addition to private practice, he served in the Lake a fact-based inquiry which must be analyzed by the circumstances and the precedent in effect when made? County State’s Attorney’s Office “Yes” to all of the above so far, since as chief of the Drug Prosecutions decades of appellate precedent have Division. He is also a member of the Docket Editorial Board. 2 See id., ¶ 15.

taught us that small changes of fact and law can have a big impact in Fourth Amendment interpretation.

This article will survey the law on vehicle searches based on the smell of cannabis prior to legalization and look at the possibility of significant changes now that cannabis is legal in small quantities under most circumstances.

CANNABIS LAW GENERALLY

The Stribling opinion took a deep dive into the historical context of cannabis statutes in Illinois, some of which this article will utilize.

Our state first made cannabis illegal in 1931, with the modern Cannabis Control Act3 passed in 1978 providing for the structure of today’s laws on cannabis possession and delivery/ intent to deliver. In 2014, the State of Illinois legalized the possession of cannabis for people to whom the State had granted a license to use cannabis for medical purposes. In 2016, Illinois decriminalized the possession of less than 10 grams of cannabis, which kept it still illegal but a “civil law violation.”

Then, in 2020, Illinois legalized small “user amount” possessions of cannabis under most circumstances for Illinois residents 21 and older by amending the Cannabis Control Act to include exceptions for Personal Use of Cannabis, 410 ILCS 705/10-5 and a possession limit (30 grams generally), 410 ILCS 705/10-10. There are also limitations involving the prohibition of cannabis within schools, correctional facilities, day care and social service care facilities, among other places. See 410 ILCS 705/10-35, which also prohibits the use of cannabis in a public place or, relevant to the topic of this article, a motor vehicle.

VEHICLE SEARCHES BASED ON SMELL OF CANNABIS

Prior to 1985, the odor of cannabis alone had yet to be held sufficient by the Illinois Supreme Court as a basis to search a vehicle. But it was getting closer. For example, in 1970, the Second District reviewed a search which started with a vehicle already stopped and then investigated for petty traffic violations.4 While there was more to the search in Erb than just the “plain smell” of cannabis in a vehicle, the appellate court still believed that was enough.

3 See 720 ILCS 550/1, et seq. 4 See People v. Erb, 128 Ill.App.2d 128 (2d Dist. 1970). Truth is stranger than fiction, and precedent involving the smell of cannabis really comes from a defendant named “Erb.”

“Testimony of the ‘odor of marijuana emitting from the vehicle and from all of the persons,’ justified the further belief that more than a traffic violation was involved. Where the smell of contraband is established to the satisfaction of the court, it is a sufficient basis under proper circumstances for officers to believe that a crime is being committed in their presence.”5 Interestingly, the Erb court cited quite a bit of national precedent but few cases Decades of appellate from Illinois, since most of the Illinois precedent was precedent have taught cited by the defendants as support for their effort us that small changes to throw out the search. Two other appellate courts followed Erb to uphold a of fact and law can truck search based upon the smell of cannabis.6 Yet the have a big impact in Third District reached the opposite conclusion in other Fourth Amendment cases.7 It rejected the uncorroborated testimony of law interpretation. enforcement in the Argenian decision and reasoned “[t]o hold otherwise would be to give an unlimited license to any police officer to search and all vehicles merely on his uncorroborated testimony that he was an expert marijuana sniffer and that he smelled marijuana in the car.”8 The Illinois Supreme Court in 1985 resolved the conflict within the appellate courts on the issue in People v. Stout. 9 It found that the odor of cannabis alone may provide sufficient basis to search a vehicle since all possession of cannabis was illegal. This holding has never been overturned by the high court. In Stout, the arresting officer stopped the defendant’s vehicle for a petty traffic violation and testified that he detected the odor of “burning cannabis.” A subsequent search revealed cocaine among other drugs. The question was whether the officer had probable cause to search the vehicle without a warrant based solely upon the smell of “burning cannabis.” The Supreme Court began its analysis in Stout that probable cause must be determined from the standpoint of the arresting officer, with his skill and knowledge, and not that of the ordinary citizen. The Court also pointed out that vehicles, by their nature, are mobile and operated in plain view, thus distinct constitutionally from homes.10 5 Erb, 128 Ill.App.2d at 132. 6 See People v. Laird, 11 App.Dist.3d 414 (5th Dist. 1973) and People v. Loe, 16 Ill.App.3d 291 (3rd Dist. 1973). 7 See People v. Argenian, 97 Ill.App.3d 592 (3rd Dist. 1981) and People v. Wombacher, 104 Ill.App.3d 812 (3rd Dist. 1982 8 Argenian, 97 Ill.App.3d at 594. 9 People v. Stout, 106 Ill.2d 77 (1985). 10 Id. at 87.

The Supreme Court also addressed the important issue of detection of “burnt,” “burning” or “fresh” cannabis by the witness, usually a police officer. It held there is no quantifiable qualification which is a prerequisite to such detection. ‘[T]his court will not bite at the defendant’s lure to define the exact number of training hours or employment years necessary to render an officer’s belief reliable. As stated earlier, what constitutes probable cause for searches and seizures must be determined from the standpoint of the officer, with his skill and knowledge being taken into account, and the subsequent credibility determinations must be made by the trial court.”11 In Stout, the Court ruled for the first time in Illinois that a qualified arresting officer does not need corroboration to search a vehicle based upon the probable cause of “burning” cannabis.

The Second District appellate court relied on Stout in its decision to uphold a search involving a patrolman’s detection of “fresh cannabis” within a vehicle in People v. Smith. 12 As in Stout, the Smith court summarized, “there was no corroboration of the officer’s olfactory evidence,”13 unbothered by the fear expressed by the now-overruled Third District in Argenian. The Second District then held fresh cannabis was certainly indicative of a crime 11 Id. (emphasis in original). 12 People v. Smith, 2012 IL App (2d) 120307. 13 Smith, 2012 IL App (2d) 120307, at ¶ 14.

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847-577-4476 | 800-419-7606 thegoodlawgroup.com • info@TheGoodLawGroup.com 209 W. Madison Street, Suite 1, Waukegan, IL 60085 since (then) all possessions of cannabis were illegal. The Stribling court noted that after Stout, Illinois courts continued to recognize that the smell of burnt or raw cannabis emanating from a vehicle provided probable cause to search the vehicle, if detected by an officer familiar with and trained in the detection of cannabis.14

THE ILLINOIS SUPREME COURT AFTER DECRIMINALIZATION OF CANNABIS

The Illinois Supreme Court again heard a case involving the smell of cannabis inside a vehicle in People v. Hill, 15 where the arresting officer smelled “raw” cannabis. The defendant/driver denied having or smoking cannabis, but the officer smelled a strong odor of “raw,” or fresh, cannabis. In the back seat the officer said he saw a “bud.”16 At the Supreme Court, the defendant argued that the changing legalization of medical cannabis and decriminalization of small amounts of cannabis altered the police power to conduct a warrantless search of a vehicle solely based on the odor of raw cannabis. The Court agreed that the changing law “somewhat altered the status of cannabis as contraband,” but it was still equated with illegality.17 Decriminalization is different than legalization, it pointed out. The Hill Court further observed that medical marijuana users must possess and use cannabis in accordance with that statute, which required a sealed, tamper-evident container.18 The degree of suspicion attached to even a non-criminal act still allowed a reasonable officer to conclude sometimes, considering all of the surrounding circumstances, that there is a substantial chance of criminal activity.

In the path to its ruling justifying a search based upon the smell of cannabis within the vehicle in this 2017 incident, the Court in Hill noted probable cause is a pragmatic, nontechnical analysis of “everyday life on which reasonable and prudent persons – not legal technicians – act.”19 Also, probable cause deals with probabilities, not certainties, and “does not require an officer to rule out any innocent explanations for suspicious facts. … it requires only that the facts available to the officer … would warrant a reasonable man to believe there is a reasonable probability that certain items may be contraband or stolen property or useful as evidence of a crime.”20

14 Stribling, 2022 IL App (3d) 210098, at ¶ 15. 15 People v. Hill, 2020 IL 124595. 16 “Bud” was not defined in Hill, but rather by the Stribling court reciting the facts in Hill. The “bud” is the ingestible end-product of the cannabis growing cycle. Perhaps the Stribling court believed it needed a definition. Or, perhaps it just wanted to quote from a law review article entitled “Patenting Marijuana Strains:

Baking Up Patent Protection for Growers in the Legal Fog of this Budding Industry, 23 J. Intell. Prop. L. 169, 178 (2015)” 17 Hill, 2020 IL 124595, at ¶ 19. 18 625 ILCS 5/11-502.1. That odor proof container requirement remains today, even after legalization, for all those possessing any amount of cannabis within a vehicle. See 625 ILCS 5/11502.15. 19 Hill, 2020 IL 124595, at ¶ 23. 20 Id.