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The case stems from a 2020 traffic stop in Whiteside County when
a trooper said he smelled fresh cannabis, conducted a search of
the vehicle and found several joints of marijuana in a cardboard
box. Victor Molina of Moline was a passenger in the car and was
charged with misdemeanor possession of marijuana by a passenger.
Molina’s attorney James Mertes argued to the Illinois Supreme
Court that the case has nothing to do with the right to use
marijuana.
“Ultimately this comes down to our Fourth Amendment rights, it
is an issue of privacy,” said Mertes. “A lot of people have
viewed this case as being about cannabis rights. I’ve never
viewed it as that, it is more important than that. It’s a case
about our constitutional rights."
The 4-2 majority opinion, written by Justice P. Scott Neville
Jr., highlighted a 2019 law that stipulates that marijuana in a
car must be transported in a sealed, odor-proof container.
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If a police officer can smell raw cannabis, it is “almost
certain” that the cannabis is not in an odor-proof container,
which is a violation of state law, Neville reasoned.
The ruling follows another decision in September by the high
court that the smell of burnt cannabis is not enough probable
cause to search a vehicle.
The disparity, that the smell of unsmoked marijuana is
justification for a warrantless search, while the smell of
smoked pot is not, “defies logic,” Justice Mary O’Brien wrote in
her dissent.
Mertes said he will appeal the decision.
Recreational marijuana has been legal since 2020 in Illinois,
but it is illegal to smoke or consume cannabis in a moving car.
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