In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03)

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

Charges

Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time.

Facts

During the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm.

The minor was a passenger in the car in the front seat. They parked in front of the building. The car was running. The windows were up. The rear seat passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle.

The officer's car pulled up diagonally in front of them. The driver was asked for his license and registration. The police asked the driver to roll down his window first, and that’s when the smell was even stronger.

Another officer then opened the door on the passenger side. The respondent got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket.

There is a no parking sign.

The Odor Of Cannabis

The officer said he smelled cannabis coming from the car parked in a no parking zone.

When the got to the car windows and started interacting with the passengers they again smelled an even stronger smell of marijuana. They also saw that the person sitting behind the respondent had a hand-rolled cigar in his ear.

See Also

• Episode 015 - People v. Abdur-Rhamim - Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?
• Episode 340 - Interview With Kim Bilbrey - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant 
• Episode 276 - People v. Kavanaugh - You Just Can’t Ignore The Stench Of Weed…And An Accident

Discovery Of The Gun

As the respondent got out of the car, he reached for his right jacket pocket. The officer said, "Don’t do that."

The officer touched the pocket, immediately realized it was a gun, and arrested the respondent. In the rear seat, a partially smoked hand-rolled blunt was recovered.

Issue

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

The minor submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal activity.”

The Roll Up Was A Stop

Upon review, we agree with the parties.

The manner in which the police vehicle was positioned effectively blocked the idling car from driving away from the scene. In addition, we find the positioning of the officers around the idling vehicle further supports the conclusion that respondent and the other occupants were subject to an immediate seizure.

The seizure was initiated after he observed the vehicle stopped in a no parking zone and smelled cannabis coming from the direction of the idling vehicle. Upon making those two aforementioned observations— the location of the stopped vehicle and the smell emanating from that vehicle—that's when one officer instructed his partners to “put a stop” to the vehicle.

The Law On The Odor

It is well established that distinctive odors can be “persuasive evidence” of criminal activity. People v. Stout, 106 Ill. 2d 77, 87 (1985).

More specifically, Illinois courts have repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle will provide police officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle and all persons seated therein. See, e.g., id.; People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Hansen, 326 Ill. App. 3d 610, 615 (2001); People v. Boyd, 298 Ill. App. 3d 1118, 1122 (1998).

Such searches are justified pursuant to the “automobile exception” to the warrant requirement, which is derived from the recognition that there is a diminished expectation of privacy with respect to automobiles. Stout, 106 Ill. 2d at 86.

Defendant's Argument

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4).

See Also

Episode 207 - Interview With Ken Wang - Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law

Episode 251 - Interview With Jeffrey Hall -  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Analysis

The recent amendment to the Cannabis Control Act simply treats the possession of “not more than 10 grams of any substance containing cannabis” as a “civil law violation” punishable by a fine. Id. § 4(a).

It is still very much "unlawful for any person knowingly to possess cannabis."

Decriminalization Not Legalization

Because decriminalization is not synonymous with legalization, even though possession of less than 10 grams of cannabis is no longer a crime in Illinois, it remains illegal.

In This Case...

The record establishes that at the time of the seizure, the police had smelled the distinctive odor of marijuana coming from the direction of a car that was idling in a no parking zone.

Given that Illinois prohibits the knowing possession of marijuana and prohibits operating a vehicle while impaired and under the influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and provided the officers with reasonable suspicion to believe that criminal activity was afoot.

When the officers approached the idling vehicle and spoke to the occupants through lowered windows, the odor of marijuana became more apparent. In addition, an officer was able to see a marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided the officers with probable cause to search the vehicle and the vehicle’s occupants.

Holding

We therefore conclude that case law holding that the odor of marijuana is indicative of criminal activity remains viable notwithstanding the recent decriminalization of the possession of not more than 10 grams of marijuana.

Applying the aforementioned viable legal precedent, we further find that the search and seizure of respondent did not run afoul of the fourth amendment.

Accordingly, we find that the circuit court properly denied respondent’s motion to suppress.