In 2020 Can Police Search Your Car If They Smell Marijuana?

Kane County Nuggets

After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis?

The Old “Smell Of Weed Rule” In Illinois Before Decriminalization Of 2020 The warrantless search of a car is authorized “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” People v. Stout, 106 Ill.2d 77, 88 (1985)

The question today, is if this rule survived the cannabis law change in 2020.

In This Episode…

“The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause.” — John “Jack” Duggan

Attorney John Duggan

Jack’s father is a retired Chicago Police Officer. Jack followed in his father’s footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.

Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters.

Jack Duggan’s Contact Information

782 Busse Highway Park Ridge, IL 60068 [e-mail]

http://www.johnmdugganlaw.com/

Attorney Jeff Hall

“I basically call it the ‘sniff and search’ statute.” — Jeff Hall

“I basically call it the ‘sniff and search’ statute.” – Jeff Hall

Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver’s License & FOID Card Reinstatement’s.

He began his legal career as an Assistant State’s Attorney in Tazewell County, IL.

Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a “Zero Tolerance” state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving.

Jeff Hall’s Contact Information

316 SW Washington Street, Suite 1A Peoria, IL 61602

[e-mail]

http://www.centralillinoislawyers.com/

Links & Resources

• Cannabis Regulation and Tax Act
• Cannabis Control Act
• Illinois Vehicle Code
• The Sniff & Search Law – 625 ILCS 5/11-502.15

What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits?

410 ILCS 705/10-10. Possession Limit.

“(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows:

(1) 30 grams of cannabis flower; (2) no more than 500 milligrams of THC contained in cannabis-infused product; (3) 5 grams of cannabis concentrate; and (4) for registered qualifying patients…”

Strict Prohibition of Cannabis Possession For Those Under 21

410 ILCS 705/10-15. Persons under 21 years of age.

“(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act. (c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.” Further Limitations And Prohibition Of Cannabis In Certain Places

410 ILCS 705/1-35. Limitations and penalties.

“a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct… (2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or… (3) using cannabis: (D) in any motor vehicle; (F)…in any public place; or (G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act… 4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;” The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis…

720 ILCS 550/4. Cannabis Control Act.

“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to: (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony; (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.” Delivery And Possession With Intent To Deliver Cannabis Remains Illegal

720 ILCS 550/5. Cannabis Control Act.

“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor; (b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor; (c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony; (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony for which a fine not to exceed $50,000 may be imposed; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 2 felony for which a fine not to exceed $100,000 may be imposed; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony for which a fine not to exceed $150,000 may be imposed; The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI’s

625 ILCS 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.

“(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.” The “Sniff & Search” Law – 625 ILCS 5/11-501.15

625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle.

“(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State. (b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a Class A misdemeanor. “Can’t Miss” Moments From Episode 745

✓ An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off? (Go to 4:46)

✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? (Go to 5:42)

✓ There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50)

✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? (Go to 11:50)

✓ How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis? (Go to 22:01)

✓ How a “sealed, odor-proof, child-resistant cannabis container” can be the difference between wide spread car searches in Illinois and/or very limited ones. (Go to 24:50)

✓ Urban Dictionary defines “hotboxing” as, “n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect.” (Go to 34:20)

See Also

You may also want to check out…

• People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) (odor of cannabis indicative of criminal activity)
• Episode 556 – Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule
• Episode 509 – In re O.S., 2018 IL App (1st) 171765 (June) (1st District also says smell of weed rule is still valid)
• Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th District says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched)
• Episode 621 – People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant)
• Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
• Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing)
• Episode 015 – People v. Abdur-Rhamim, 2014 IL App (3d) 130558 (August) (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?)
• Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident
• Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law
• Episode 251 – With Jeffrey Hall – On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law
• Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search