This morning, the Illinois Supreme Court ruled raw cannabis aroma alone is sufficient probable cause for a warrantless search of a vehicle “based on the stringent ‘odor-proof’ container requirement in the Vehicle Code.”

The issue presented in the case, People v. Molina, was whether Illinois State Police trooper Ryan Wagand had probable cause to search the vehicle Vincent Molina was a passenger in after Wagand smelled the odor of raw cannabis coming from the vehicle. Wagand conducted a search of the vehicle based solely on the odor of raw cannabis coming from the vehicle. Wagand suspected that there was cannabis in the vehicle that was not in an odor-proof container, which is a requirement of the Illinois Vehicle Code (prohibiting the possession of cannabis in a motor vehicle upon a highway unless it is stored in a “sealed, odor-proof, child-resistant cannabis container”). Wagand’s search uncovered improperly stored cannabis, and Molina was charged with a violation.

The conclusion on the ruling for People v. Molina stated, “In sum, we hold that the odor of raw cannabis coming from a vehicle being operated on an Illinois highway, alone, is sufficient to provide police officers, who are trained and experienced in distinguishing between burnt and raw cannabis, with probable cause to perform a warrantless search of a vehicle. Our finding of probable cause is consistent with the Vehicle Code’s odor-proof container requirement. In other words, an officer trained and experienced in distinguishing between burnt and raw cannabis who smells the odor of raw cannabis in a vehicle stopped on the highway would logically suspect that there is cannabis in the vehicle that is not properly contained as required by the Vehicle Code. Therefore, the circuit court erred when it granted the motion suppressing the raw cannabis confiscated from Molina. Accordingly, we affirm the appellate court’s decision reversing the trial court’s order suppressing the evidence seized in the warrantless search of Molina’s car.”

Justice P. Scott Neville, Jr. delivered the judgment of the court, with opinion. Justices David K. Overstreet, Joy Virginia Cunningham, and Elizabeth M. Rochford concurred in the judgment and opinion. Justice Mary Kay O’Brien dissented, with opinion, joined by Chief Justice Mary Jane Theis. Justice Lisa Holder White took no part in the decision.

O’Brien’s dissent in part, stated, “It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption. If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.” O’Brien referenced precedent in a case involving the smell of alcohol and the recently decided People v. Redmond case in which the Illinois Supreme Court held that the odor of burnt cannabis, standing alone, was insufficient to provide probable cause for a warrantless search of a vehicle.

O’Brien’s dissent continued, stating, “It (the raw smell of cannabis) can easily permeate one’s hair and clothing in a manner similar to a burnt compound of the same material. So, common sense would indicate that a sober person can come into contact with an alcoholic beverage through drinking it or having some spill on his clothing and that odor would remain with him for a period of time. The same is true of raw cannabis. A person coming into contact with raw cannabis, through touch or simple proximity, or possibly by opening and resealing the odor-proof container, would also carry that odor with him for a period of time even if the person did not possess the raw cannabis on his person or in his vehicle in violation of the odor-proof requirement.”

Lastly, O’Brien stated, “We have concluded that neither the odor of alcohol nor the odor of burnt cannabis, absent any other factor, is sufficient to establish probable cause to search a vehicle. We should reach the same conclusion as to raw cannabis: the odor of raw cannabis, absent any other factor, is not a sufficiently inculpatory fact that reliably points to when, where, or how the cannabis was possessed.”

The difference in the conflicting decisions in People v. Redmond and People v. Molina, which had been consolidated for oral arguments in January, solely hinged on Illinois’ “odor-proof, child-resistant cannabis container” language in the Illinois Motor Vehicle Code, which states, “No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a secured, sealed or resealable, odor-proof, child-resistant cannabis container that is inaccessible.”

The majority ruling stated, “We recognize the difference in our probable cause analysis based on the odor of burnt cannabis and the odor of raw cannabis. In Redmond, we held that ‘the odor of burnt cannabis, alone, is insufficient to provide probable cause for police officers to perform a warrantless search of a vehicle.’ In doing so, we compared the odor of burnt cannabis to the odor of alcohol because the possession of both cannabis and alcohol is lawful under some circumstances and unlawful under other circumstances. There is a key distinction between the odor of alcohol and the odor of cannabis; namely, alcohol, unlike cannabis, does not have a raw and burnt form.”

The majority ruling continued, “The comparison between the odor of alcohol and the odor of burnt cannabis was appropriate in Redmond because both strongly indicate that the substances have been or are being consumed…On the other hand, the odor of raw cannabis coming from a vehicle strongly indicates the current presence of cannabis. And when the odor of raw cannabis comes from a vehicle driven on an Illinois highway, it is almost certain that the cannabis is being possessed in violation of the Vehicle Code’s odor-proof container requirement. It is unclear what other inference an officer could draw upon the detection of the odor of raw cannabis other than that the odor is coming from cannabis currently possessed in the vehicle. In short, while cannabis is legal to possess generally, it is illegal to possess in a vehicle on an Illinois highway unless in an odor-proof container. The odor of raw cannabis strongly suggests that the cannabis is not being possessed within the parameters of Illinois law. And, unlike the odor of burnt cannabis, the odor of raw cannabis coming from a vehicle reliably points to when, where, and how the cannabis is possessed—namely, currently, in the vehicle, and not in an odor-proof container.”

The decision summarized this point by stating that the “different inferences arise depending on whether the odor of burnt or raw cannabis is detected. The odor of burnt cannabis suggests prior or current cannabis use, and the odor of raw cannabis suggests that cannabis is currently possessed in the area where the odor is detected. Different laws are implicated based on those inferences.”

The majority ruling also disagreed with the trial court’s reliance on the “many innocent reasons” a person or vehicle may smell like raw cannabis, stating, “The trial court found, without evidence in the record, that the officer did not have probable cause because a person (1) may work at a cannabis cultivation facility or a dispensary or (2) cultivate plants for medical use. While we discussed in Hill an officer’s duty to consider ‘the plausibility of an innocent explanation,’ we also made it clear that ‘probable cause does not require an officer to rule out any innocent explanations for suspicious facts.’ Here, there was no evidence that Trooper Wagand discovered any innocent explanation for the odor of raw cannabis. And based on Hill, he was not required to rule out the possibility of hypothetical innocent explanations before proceeding to search the vehicle Molina was in.”

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