People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36)
A strong indication from the 3rd district on what the smell of weed means for a car search.
Defendant Jeremiah Paige Rice was charged with one count of unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (methamphetamine possession) and was given 11 years.
Illinois State Police stopped defendant headed west on Interstate 80 for traveling 75 miles per hour in a 70-mile-per-hour zone. Defendant’s car had valid plates and was registered as a rental vehicle out of New Mexico.
When he stopped defendant, the driver of the vehicle had rolled his window down and was showing his hands.
Trooper smelled a strong odor of burnt cannabis when he approached the passenger side window of defendant’s vehicle.
Defendant provided his identification and rental agreement for the vehicle. Defendant was cooperative and handled himself in a calm and collected manner. Trooper took defendant’s documents and returned to his squad car. After running a background check, he reported that defendant’s driver’s license was valid. He then decided to run defendant’s criminal history.
Trooper called for backup because he planned to execute a search of the vehicle.
He did not observe any weapons or drugs in plain view inside the car. Based on the smell of cannabis, he believed that he had probable cause to search the vehicle for drugs. After backup arrived, Trooper asked defendant to exit the vehicle.
He escorted him to the back of the vehicle and informed him that he was going to conduct a search of his person. Trooper located a bulge in defendant’s right pants pocket, which he believed to be contraband. He pulled out a plastic bag of a leafy substance that looked like cannabis.
Trooper placed defendant in handcuffs and put him in the squad car.
Officers searched defendant’s vehicle and found two sealed envelopes containing $37,000 in U.S. currency. During a second search of the vehicle at the police station, investigators recovered a small shoe care kit. A plastic bag inside the shoe care kit contained 1300 multicolored pills that tested positive for methamphetamine.
Life Goes To Hell In 11 Minutes
The stop lasted approximately 11 minutes from the moment Trooper turned on his emergency lights to the time he ordered defendant out of the car.
Defendant filed a motion to quash the arrest and suppress evidence. He argued that since possession of less than 10 grams of cannabis was no longer a criminal offense under section 4 of the Act, Trooper did not have probable cause to search defendant’s vehicle based on the smell of burnt cannabis alone.
The issue is whether an officer can form probable cause to believe a crime has been committed in possessing cannabis based solely on the smell of burnt cannabis without some further evidence as to the weight of the cannabis given the change in the law.
Trial Court Ruling
“[I]t appears to the court that it’s still good law that smelling the odor of burnt cannabis gives the officer probable cause to search the vehicle, whether he finds five grams of cannabis or five tons of cannabis.”
Defendant argues on appeal that in light of the recent amendment to section 4 of the Act, the smell of burnt cannabis alone no longer provides a reasonable belief that a crime has occurred sufficient to support probable cause.
He maintains that the odor of cannabis can no longer serve as a ground for probable cause or reasonable suspicion of criminal activity in light of the recent amendment to the Act decriminalizing the possession of small amounts of cannabis. See Pub. Act 99-697, §40 (eff. July 29, 2016) (decriminalizing the possession of not more than 10 grams of cannabis by categorizing it as a “civil law violation” punishable by a fine ranging from $100 to $200).
Under the automobile exception, police officers may search a vehicle without a warrant where probable cause exists to believe the vehicle contains evidence of criminal activity subject to seizure. People v. James, 163 Ill. 2d 302, 312 (1994). Probable cause means that there is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized. Maryland v. Pringle, 540 U.S. 366, 371 (2003).
In determining whether probable cause exists, a law enforcement officer may rely on training and experience to draw inferences and make certain deductions. Ornelas v. United States, 517 U.S. 690, 700 (1996). Probable cause exists when the facts known to the arresting officer at the time are sufficient to lead a reasonable person to believe that the defendant is engaged in criminal activity. Jones, 215 Ill. 2d at 273-74.
The Smell of Weed
It is well established that the distinctive odor of cannabis can be persuasive evidence of criminal activity. See People v. Stout, 106 Ill. 2d 77, 87 (1985). In Stout, our supreme court held that when an officer detects an odor of a controlled substance, the officer has probable cause to conduct a search of a vehicle if testimony has been elicited that the officer has training and experience in the detection of controlled substances.
Since then, Illinois courts have repeatedly recognized that the smell of burnt cannabis emanating from a vehicle will provide officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle. See People v. Weaver, 2013 IL App (3d) 130054, ¶ 32. This principle has been extended to include searches of the driver and any passengers. People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Strong, 215 Ill. App. 3d 484, 489-90 (1991).
Still Associated With Criminal Activity
The majority of jurisdictions have found that decriminalization is not synonymous with legalization and that the odor of cannabis remains indicative of criminal activity despite the passage of statutes decriminalizing the possession of small amounts of marijuana. See In re O.S., 2018 IL App (1st) 171765, ¶ 28.
Although defendant contends that Illinois has decriminalized small quantities of cannabis, marijuana possession remains unlawful under the Act. Section 4, as amended, states that “[i]t is unlawful for any person knowingly to possess cannabis.” 720 ILCS 550/4. As noted in In re O.S., “decriminalization is not synonymous with legalization.” In re O.S., 2018 IL App (1st) 171765, ¶ 29.
Decriminalization Not Legalization
Under Illinois law, the knowing possession of cannabis is still a criminal offense and possession of more than 10 grams remains an unlawful act subject to criminal penalties.
Here, the officers searched defendant’s vehicle because Trooper detected the odor of cannabis. As we have stated, the odor of cannabis as indicative of criminal activity remains viable notwithstanding the legislature’s decriminalization of the possession of a small amount of marijuana. Once Trooper identified the odor of burnt cannabis, probable cause for the search existed. Thus, the trial court properly concluded that the search was justified and denied defendant’s motion to suppress.
Conviction of Bureau County is affirmed.
- 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 556 – Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule
- Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing)
- Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
- Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana
- 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