The Cole Memo

In this episode, we explore a groundbreaking Supreme Court case that questions the validity of using the scent of cannabis as the sole justification for searching a motor vehicle. Tune in as I provide you with an in-depth look at the riveting Supreme Court debate. While this footage isn’t exclusive to our podcast, we are one of the first to share it in its entirety, as far as I am aware.

In an episode that is now available for streaming here, I had the privilege of hosting two esteemed legal professionals on the show. Tune in to hear us collaborate to analyze the nuances of the oral arguments and share our perspectives on the potential outcome of this pivotal case.

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Links mentioned during show

• Illinois Supreme Court to determine if cannabis odor can be cause for vehicle search – CapitolNewsIllinois

The auto-generated transcript is available below.

for those of you currently tuned in to the Live premiere on YouTube I wanted to extend my gratitude for joining me live I hope you’re having a great evening thanks again for joining us in case you weren’t aware all of our episodes are available for free streaming on YouTube and several other platforms you can find most of those platforms at theol memo.com podcast to receive notifications for future live premieres be sure to subscribe to our YouTube channel at the po memo.com youube it’s a great way to interact with uh our fans and even myself while epis Premiere live for the public to watch in this episode we will be showcasing footage from the Illinois supreme court hearing on the topic of cannabis odor and whether the mere scent of cannabis can serve as a pretext for a vehicle search if you’re interested in a comprehensive recap of this hearing featuring insights from Li Ed attorneys you can catch that in episode 48 of this show the Cole memo podcast which is exclusively available on our patreon page you can access the episode now atth memo.com patreon once again that’s t h c l m m o.com p a o n today is January 11th 2024 and in this episode of the Cole memo I’m going to skip my Preamble and just let you know that if you’re not listening to this episode of the Cole memo on patreon then you’re listening to this episode later than our patrons you can become a patron at the co memo.com patreon it only costs $3 a month and you can get videos like these right off the wire as they say in the news business and it’s one of the best ways to support the show hey folks let’s Dive Right into to it you may have recently saw that we shared this Capital news Illinois reported that the Supreme Court the Illinois Supreme Court is going to determine if cannabis odor can be used as cause for a vehicle search this is a topic we have discussed at length on the Cole memo and my former show the Illinois podcast reporting by capital capital newws illinois.com says the Illinois Supreme Court heard arguments Wednesday as to whether the smell of cannabis alone is grounds for police officers to search a vehicle marking a test of the state’s 2020 recreational marijuana legalization law the court heard two Consolidated cases of individuals who were in vehicles that were searched after an officer use the smell of cannabis as probable cause folks we are going to watch this Supreme Court case in today’s episode it’ll be a bit of a lengthy one as a result of that before we do this I wanted to share with you a prediction that I received uh regarding this ruling I received a prediction by a legal expert that I trust that they expect a unfavorable Court ruling essentially they believe that the Illinois Supreme Court May permit using the smell of cannabis as ground for car searches uh more to follow on that I plan to bring that individual on the but they said they wanted to watch the ruling first I want to be very clear that I will be joined by the attorney that I just referenced who made a prediction and they told me that uh they they would like to speak to me but they want to see the video from the oral argument before they confirm their predictions so I just wanted to make sure that that was very clear that it sounds like they made that prediction based on just what they had heard about the case uh but before they join me on the podcast they will be reviewing the case itself so and when they said that I said wait a minute I I can watch the ruling and they said of course you can and so let’s watch it folks here is the Supreme Court ruling regarding uh cannabis and odor let’s check it out so we’re playing it right now call this morning is agenda number four number 12921 129 237 Consolidated cases people of the state of Illinois uh versus Don Redmond at all now we understand that this is a case a Consolidated case in which there were um different uh results in the appell court therefore uh we’re in unusual situation where the parties are not in a clear lines of who is the appal and who is the appellant um however the parties have graciously uh agreed discussed the issue and agreed how we will proceed today and um my understanding is that the first speakers we’ll just call it that way U will be Mr Merz and Mr Carmen and they will split their time for 15 minutes and then the next speaker will be Mitchell John net and then back to rebuttal the two lawyers will split up their time five minutes a piece I think that’s the agreement correct okay um First Council you made again good morning inmate please the court Council my name is James murtis I represent the defendant appellant Vincent Molina I’m honored this morning to be joined by my colleague Mr Bruce Carman uh Council for the defendant EP Darren Redmond in these Consolidated cases now before you on appeal the possession of cannabis has been legalized in the state of Illinois the order of marijuana is now an aroma of legality the order of cannabis emitting from a motor vehicle standing alone no longer provides a law enforcement officer with probable cause to believe that the vehicle contains evidence of a crime rather the order of cannabis now represents but one factor and the probable cause analysis I’ll briefly review the facts of the case below as to Mr Molina on December 3rd 2020 Mr Molina was a passenger in a motor vehicle traveling on Interstate 88 in rural Whiteside County ill line the vehicle was stopped for speeding after the traffic stopped Illinois State Police Trooper wend approached the vehicle on the passenger side the trooper smelled the odor of raw cannabis coming from the motor vehicle on that basis and on that basis alone the trooper asked Mr Molina to step outside of the vehicle and the trooper sech searched the vehicle Mr Molina filed a motion to suppress and in that motion argued that as a result of the legaliza legalization of the possession of cannabis the odor of cannabis no longer established probable cause with which to justify a vehicle search the trial court granted the motion to suppress and in his ruling his honor judge Dalton observed that to hold otherwise to to deny the motion to suppress would place a citizen in the untenable position of exercising his rights under the Cannabis regulation and Tax Act while forfeiting his rights under the Fourth Amendment of the United States Constitution in article one section six of the Illinois constitution May quick sorry Council what statute what statute are you relying on for your argument well principally your honor I I rely on the Fourth Amendment of the US Constitution tion in Article 1 Section 6 of the Illinois constitution with reference to uh the statutory scheme associated with the regulation of of of the the transportation of cannabis um we believe that the most recent X specifically um and I I refer to them as acts as opposed to the vehicle code the most recent acts the the Cannabis regulation Act and the compassionate use act are the acts uh that that are the most recent and the most cannabis specific acts and therefore they apply okay another question does does the Illinois vehicle code have any place in this in your analysis or or does the Cannabis act nullify the provisions of the Illinois vehicle code which may apply to this thank you your honor I I answer that question two ways first I think the government attempts to distract us with the the the issue of of the containers that are used for the purpose of Transportation of cannabis and and frankly whether the vehicle code prevails or whether the acts Prevail matters not to the Constitutional analysis that’s now before you however having said that the the Cannabis acts are more recent and they are more cannabis specific and therefore they connote a legislative intent that they would apply with respect to the transportation of cannabis Mr murdis is there any at vehicle code or cannabis act compassionate um use act that does not have an odor proof requirement uh the the vehicle code has the order prooof uh requirement but yes the Cannabis the the Cannabis act I I refer to the compassionate use act which would be the the medical cannabis act and then the subsequent legalization act neither one of them have an odor prooof requirement what do they say about how you are to store the Cannabis in cab in your vehicle does it speak to odor at all yes your honor specifically uh the those acts provide that in fact dealing with the recreational Cannabis act specifically at 410 ilcs 705 1035 b2d provides recreational Cannabis may be transported in a private vehicle if it is quote in a reasonably secured sealed container and reasonably inaccessible while the vehicle is moving neither that act nor the compassionate use act that include the language odor prooof and so reasonably sealed does that infer something with respect to the odor and what an officer should consider when determining whether or not he or she has probable cause no it does not for for multiple reasons first and foremost if it was a legislature’s intent um to to restrict the odor in a vehicle first of all I don’t think that that’s scientifically possible but but but we we’ll get to that as the second part of my my analysis of your question um the legislature does not include the words order proof within either one of those two provisions of the act the the word order does not appear in that it reasonably sealed reasonably inaccessible reasonably secured and sealed does not include any reference with respect to the term order but but having said that even if this court were to find that the uh the Cannabis must be transported in an odor-proof container um that wouldn’t that wouldn’t necessarily then lead to the result that if there is any order of cannabis in the motor vehicle that that warrants a vehical search uh the order of cannabis can exist even if cannabis is being transported in an order prooof container as his honor judge Dalton found in the court below uh it is common knowledge that the order of cannabis is strong it is pungent it can pervade and and permeate the the fabric of clothing it can it can uh it on the skin and and it can exist in the passenger compartment of a vehicle even if cannabis is being transported in the vehicle in an order prooof container or even if there’s no Canabis of any kind whatsoever in the vehicle so so Council obviously the statutes that we’re talking about um deal with a very specific um piece of the um uh Canabis act specifically concerns the legislature had for um people who are impaired driving in other words a possession is is uh not illegal but obvious concerns that the the legislature had about people using smoking or whatever using in the car or in fact transporting it and in many ways those uh statutes seem to be very similar to how for many many years the legislature had Lo has looked at alcohol uh not allowing alcohol consumption in a car not allowing um being very careful about how alcohol is regulated when it’s being transported again the idea that alcohol is legal but the concerns about traffic driving safety and impair drivers so why aren’t we looking at the alcohol cases and how courts have looked at those um and when they determine whether or not here there’s probable cause to search the car I think we absolutely can look to those alcohol cases and in fact in our initial brief we actually discussed those very cases um I believe and and as as we’ve argued in our brief that the order of cannabis is a factor that a police officer can consider in the probable cause calculus um just as the officer can consider the order of alcohol in the probable cause calculus your question calls upon us to focus on the very issue that’s before you now and that issue before you is whether or not the order of cannabis is the sole and exclusive factor to the exclusion of all other factors or whether in light of the legalization of cannabis the order of cannabis has now become one component of the overall calculus of the officer’s probable cause determination just as the officer may approach the vehicle and observe the order of alcohol and consider it that that odor of alcohol in her probable cause evaluation considering it with other factors for example impaired driving uh the presence of an open container in the vehicle other factors that the officer may consider in a DUI investigation for example so too can the officer consider the order of cannabis in the calculus so too can the officer consider the order of cannabis in the evaluation of whether there’s a basis to search the vehicle the difference between the government and our position is that the government argues in the brief that the the officer may consider the totality of the circumstances but then Narrows that totality of the circumstances down to one Circumstance the order of cannabis is the be all an end all of the probable cause determination so says the government and it’s the position of of the the appellant the defendant appellant that that is not the be all and end all the problem cause calcul Council it when you’re talking about other factors that they should or could have considered under these facts what are those other what are other facts or circumstances that this officer would have considered other than a strong odor of raw cannabis what else could he have considered none whatsoever and and that’s why this case is so important this is this is what what I used to refer to in law school as a clean case because it doesn’t involve any other factors the officer um had to his Avail when he made the determination to ask my client to step out of the vehicle the officer conceited in his testimony on the motion to suppress that the sole and exclusive basis for asking my client to exit the vehicle in searching the vehicle was the order of raw cannabis the officer admitted that there was no other basis upon which he searched the vehicle and it was that very testimony on which his honored judge Dalton relied in granting the defendant’s motion to suppressed there were no other circumstances that’s why suppression was warranted uh and and and that’s that’s really keying upon the issue that’s before you now now as this court is aware there’s been a sea change in the law since this court decided Stout way back in 1985 as the Third District recently apped in its stribling decision decided the end of 2022 Stout is no longer applicable to post legalization fact patterns this development comes as no surprise to our laws evolution in hill this court foreshadowed this morning’s argument Hill of course was a pre- legalization case there in hill this court addressed the impact of decriminalization in the probable cause analysis and this court observed quote decriminalization is not synonymous with legalization because cannabis remains unlawful to possess any amount of marijuana is considered contributed to this court in Hill it was axiomatic that when possession of cannabis was illegal the odor of it within a motor vehicle would establish probable cause with which to believe that illegal activity was occurring but under that very same logic now that the possession of cannabis has become legal the odor of it within a motor vehicle by itself no longer establishes probable cause to believe that illegal activity is occurring now that is the Salient wisdom of Hilt May to a question about the odor uh idea uh again the statute makes it clear that the use I think it’s the verb of marijuana in a vehicle is illegal and you’re saying that um the smell alone uh is not sufficient to um be the basis of the pro problem cause that this person was using marijuana in the car correct right tell me why you say that I mean is that a scientific kind of basis that um you know this smell of uh marijuana smell of cannabis lasts x amount of hours there’s a difference uh something like that why why do we assume why are you saying that the smell of marijuana when uh the in a car when someone’s driving down the highway uh is not of significant um evidentiary weight to be at least prob that they have recently used it in the car why not thank you honor as his honor judge Dalton found the order of cannabis is particularly pungent the order of cannabis is pervasive and that it it it can exist on a person without that person having recently consumed cannabis or without that person having consumed or possessed it at all for example a person who sets foot in a dispensary will smell of cannabis notwithstanding that he or she may not have cannabis within his this is someone who’s been driving on the highway for some time for example the one person said they were driving from De MO to Chicago they were in the car a long time uh because it’s somewhere in the middle of the state when they got sto so they they they had the pungent smell on them in that moment why isn’t it reasonable for the police officer to at least have probable cause to say that pungent odor in this moment they’ve been in a car for a long time this car therefore more probably than not they were using marijuana in this car which is against the law because as as honor judge Dalton found and and as this Court suggested in Hill when when the the court must focus on the plausibility of an innocent exclamation a person can have the order of cannabis on his person without having recently consumed cannabis or without having possessed or consumed cannabis whatsoever for example if I visit a friend who’s a smoker and and I sit with my friend in a closed quarters and my friend smokes cigarettes and I leave and I’m driving home I’m going to smell of cigarettes even though I is there any EV scientific evidence to tell us how long that lingers I you can see I I can see an argument saying In This Moment he’s been in a car for hours coming from De Mo and there’s a strong smell doesn’t that at least give us some indication that it um this person was using uh in this car is there why why aren’t the two ideas closely linked where does it come from this idea that it could have happened hours and days before where does that come from the the most accurate answer that I can give you your honor um is that it might and and I want to explain why it is that I answer that way because it is a factor that the officer can consider in the probable cause calculus but your honor when when when you asked me that question you addressed other factors that also existed not just the smell but for example in the in the case of Mr Redmond he was traveling from De Moine to Chicago how long had he been in the vehicle does the officer know how long he’s been in the vehicle there are other factors that that that your honor asked me about in the probable cause calculus so uh as judge Dalton said it is common knowledge that that marijuana’s odor is pungent it is pervasive it permeates the skin it permeates the clothes and it lasts on an individual and it can be very strong on an individual for an extended period of time without establishing that that person possessed or consumed cannabis that said if if there are other factors at play for example if the officer sees smoke wafting out of the vehicle and perhaps sees ashes uh uh in the vehicle and and perhaps a a a a burning uh joint uh then the officer would have a additional factors the court the officer could consider in the probable cause calculus thank you very much sir councilor I have a question that suggest follows up on that so your argument is saying that under no circumstances if there is a strong pungent odor of marijuana coming from a from the car that the officer without anything else can never stop that driver is that what your argument is that my argument is absolutely that that that the odor alone and and it’s not how strong they cannot use that as probable cause is that your argument my argument is that the the old factory senses are incapable of differentiating that’s not what I ask I am asking whether you’re are just real straightforward under your argument the way I understand it you’re saying that a strong odor of cannabis alone coming from a vehicle is Never Enough for an office for probable cause to stop a driver that’s your argument absolutely yes okay thank you Mr C thank you very much may it please the court my name is Bruce Carman and I’m going to scrap my argument and just start answering judge Justice Tyson uh question about can can the older of pro can the older of cannabis ever alone cause Pro be be sufficient for probable cause and the short answer to that is it depends and the reason that it depends is because probable cause deals in probabilities not possibilities under Stout we didn’t have to worry about possibilities or probabilities because there was no circumstance under which one could legally possessed cannabis and so that would give an officer probable cause to search a vehicle however once we get to the legislative amendments uh now it becomes one possibility among many and the court has suggested for example that the if the odor is so strong that there couldn’t be any other conclusion but that someone was smoking cannabis in the vehicle I can see that as a possibility a possibility but there are so many other possibilities for example if one’s driving from De Mo to Chicago and stops for gas one can step out if if you’re across the ISA border that is uh you could step out of your vehicle and smoke cannabis it wouldn’t be illegal under those is there a concern about impaired driving is driving all of this I mean that’s the concern I mean marijuana in your home wherever at the gas station that that’s legal but there’s a real concern that that I think even that everyone Embraces that we we don’t want people who are really really high driving down our highways we’re very worried about that agreed your honor and that is why it was so critical in the Redmond side of the case that judge Dalton found there was in fact the trooper testified that there was no evidence of impairment there no evidence that anybody had recently smoked cannabis in the car except for the smell no other basis didn’t find any papers didn’t find large amounts of cannabis no evidence at all so now we’re in the totality of the circumstan of situation and what counil let me ask you a question so we know that cannabis has been legalized but is there still a limit to how much cannabis you can have in your possession does that play into our analysis here so are we dealing with a situation where if the odor of cannabis cannot constitute the odor of cannabis alone cannot constitute probable cause a person can carry a truckload of cannabis down the highway and because the officer only has the odor that person can’t be stopped stop Yes search no can’t be searched unless you can unless you have some reason other than the odor of cannabis to believe that criminal activity is foot and and forgive me for sounding too much like our former President Clinton but the key word here is is the probable cause is what reasonable officer believes criminal activity is a foot not might be a foot not could be a foot and that’s the that’s the key here with the legislative Amendment could you address that the issue that we’ spoke of a little bit earlier with uh your co-consul here um the the legislature is real careful about what they’re talking about in terms of automobiles for all the reasons we’ve talked about here including the transportation that you can’t just have a truckload of marijuana right pocket full of marijuana in a car uh it has to be kept in a ve a secure place let’s put it that way um how does that fit in the analysis well it it fits in the analysis this way I I agree with Mr murdis that the statute does not require the packaging of cannabis to be owner proof it requires it to be reasonably secured and not available to the driver well that doesn’t answer the question of what odors are emanating from the vehicle uh and let me switch gears on you a little bit your honor um can’t W Factory senses aren’t like the other senses Stout came out of the what call is called the plain sense Doctrine which is you have to plainly sense see hear something for there to be probable cause smell is not like that you can’t take a picture of a smell like you can objects that you see in plain sight you can’t record on an audio a sound you might have heard for example someone showing evidence of impairing smell is entirely subjective in fact in this day of age and I think I argue this in my brief in the day of age of covid there are people who have no sense of smell at all or have impaired senses of smell it’s also possible to confuse when when you’re in an open air situation to confuse the odor of cannabis with something else so we have to be a little bit careful in locking in the idea of probable cause just because you smell something that you think might be cannabis officer could be wrong um in the last minute or so that I have here for less than a minute or so I wanted to tie in my argument to the ACLU and NAC cdl’s argument could you I’m sorry council could you bring your remarks to the close thank you good morning your honors uh councils um May it please the court I am Assistant Attorney General Mitchell NES on behalf of the people probable cause the search a vehicle is met when an officer has a reasonable belief considering the totality of circumstances that a search of that automobile May uncover criminal activity that inquiry inquiry necessarily starts and is dependent on what constitutes criminal activity and is therefore a state-by-state proposition here Illinois requires that a person transporting cannabis in a vehicle stores that cannabis in an odor-proof container and prohibits the use of cannabis in any vehicle given that that is the state of the law an officer who detects the odor of bra or smoked cannabis emitting from a vehicle has probable cause to search that vehicle because a reasonable person would believe uh that that the search of the vehicle May un lead May um lead to the a violation of those two specific crimes um defendants argument effectively urges Court to ignore the vehicle codes odor proof Provisions either implicitly or explicitly um and this court simply can’t do that Council if if the order is emanated from the person you know just read you know police reports that say you know he smelled strongly of cannabis how does that play into the odor-proof Container when the smell isn’t coming from a container or coming from an object but coming from the person itself himself or herself sure so it’s important to distinguish the two cases here one dealt with raw cannabis in which uh there were certainly no testimony that testimony that the smell came from the person the officer testified that it came from the car the second case dealt with smoked cannabis which I think is probably closer to your hypothetical which also was not the testimony in this case here the testimony here was that uh the officer in in Mr Redmond’s case approach the vehicle but I asked my question to you was if it came from a person if the smell was coming from a person as opposed to an object how does that play into even the vehicle code where there is no um prohibition against having the smell on the person um so that isn’t illegal itself so how does that establish probable cost to Surge sure so I think all of the acts prohibit the use of marijuana in a vehicle and that someone smells like a vehicle is certainly one factor of the total the circumstances that Canabis has been used recently and if person is traveling in a car that it may it may lead a reasonable officer officer to suspect that the canidates was used to but your argument is that it doesn’t it’s not one of a factors that it is the factor that gives rise to probable cause smoked cannabis yes I I do I think it is important to point out can you say that raw cannabis can’t be on a person it’s an organic material it’s like if you touched an onion or you know somebody you know was working somewhere and handled it handed it to somebody I mean can you say scientifically that it doesn’t cling to the person then the raw cannabis no but what’s what’s important to remember that the standard here is not scientific proof of the crime it’s not correct it is reasonable probability is an officer’s reasonable belief that a crime may be committed so the fact that there are innocent explanations for for possible innocent explanations for a fact that an officer observes does not mean that there’s not probable cause and so in those cases sure I guess a person could smell like rock cannabis although there’s been no scientific testimony that a person could smell like rock cannabis such that an officer would be able to detect it but that’s just one of an innocent explanations uh that this court has said um an officer does not need to um or problem cause is not met because there are hypothetical in in innocent explanations counil me that you’re proposing does it only apply to people in vehicles or does it apply to people wherever they are if I’m just walking down the street and I smell like cannabis can the offic search me uh that would be certainly that would be a different case the the probable cause analysis comes down to the crime that’s being suspected and here uh the crimes that were being suspected of were transporting cannabis in a vehicle and a non-odor prooof container and using cannabis in a vehicle so so I wouldn’t give the officer probable cause if I’m just walking down the street and I smell like canvas search me this court would have no reason to answer that question yes in ADV eventual opinion that’s a different case that would I’m not feeling let’s just assume it is but that’s what they’re proposing they’re saying it doesn’t give you probable cause to search you’re saying you can search a vehicle but you can’t search a person is that right because the crime here is smoking a vehicle or or using cannabis in a vehicle and so if a person smells like cannabis while they’re in a vehicle that’s some evidence that they use that cannabis while in the vehicle if there was a similar crime that prohibited the the use of cannabis while walking in a public place and I’m not familiar enough to speak on the entire scheme of the cannabis laws in Illinois then that’s a different question so it’s not the smell alone we’re not the state you know Stout was decided on the fact that cannabis was Contraband in every circumstance and so that’s why in every circumstance smell of cannabis allowed a surge that’s no longer the case cannabis is no longer Contraband in every circumstance but that doesn’t absolve a person from following the laws that are in place and so if it is a if you are prohibited from using cannabis in a vehicle and the smell of cannabis uh in that in that vehicle on the person in the vehicle is uh would lead a reasonable person to believe that the Cannabis was used in the vehicle then that provides probable cause to search a vehicle to uncover criminal activity do we have any um uh alcohol cases that would support your position again I think they seem very similar uh if the uh police officer has a basis to stop a car and the person driving has a strong smell of alcohol about him do do we have cases that explain what whether that’s prob cause to search the car or not sure so the again I’ll I’ll distinguish between the raw and the smoked cannabis scenarios uh as to the alcohol cases are distinguishable from the raw cannabis situations because these the regulatory schemes amongst the two are different alcohol uh the closest analogy for alcohol would be the that you cannot have an open container in a car but that doesn’t say that you can’t have alcohol it doesn’t mandate that you you transport alcohol in a waterproof container and so in open so you could so it’s not illegal to drink bodka driving down the road no it certainly is but you you know the smell of alcohol alone does not prove that one has an open container in the car you know a person can just smell like alcohol without having an open container in the car so is there is there there a statute in the vehicle code prohibiting the use of alcohol as there’s a statute here prohibiting the use of cannabis in a vehicle sure so that would go to the smoked the the but is there anything about alcohol use of alcohol in the vehicle yeah I’m I’m I’m certain it’s prohibited either in the vehicle code or some other criminal code you cannot use it use alcohol while driving and are there any cases to talk about when a car stop and police officers smell alcohol about the person yes um that they do they have the right then to search the car no this court has never said that the smell of alcohol alone allows an officer to search a car based on the a suspicion of any number of alcohol violations that would go towards the use of cannabis in the vehicle which is Mr Redmond’s case uh and so in those situations as as Mr Redman pointed out um the smell of alcohol smell of cannabis is one of the the toal of totality of the circumstances which would lead an officer may lead an officer to suspect a violation of the code so again what’s important here as to why why not adopt the the um analysis that’s been proposed here totality of the circumstances yeah I this is one factor I certainly think the court can do that as it relates to the use as it relates to the smell of smoked cannabis smoked cannabis can be one of several factors as I highlight for Mr Edmund’s case that led this officer uh to suspect that the person had used marijuana in the car so you’re you’re conceding that the the case here I forgot if it’s thread matter which one what it is the one where there’s um burnt marijuana you’re conceding that that’s the case in which the analysis should be totality of the circumstances are you conceding that I yes I think both are the totality of circumstances is applies to both the smoked handis yes in those cases so it’s not directly before this court because there were additional circumstances beyond beyond the smell of cannabis alone in hill this court said the same thing basically that because there were other circumstances that led the officer to suspect a violation of the vehicle code we are not really going to address the question of whether the smell of smoke tanamis alone is sufficient this court the same is true here there were there were additional circumstances in Mr Redmond’s case that led the officer to suspect a violation what was that uh that you pointed out some in your in your questions to Mr Redmond um so is Mr redond theis the case where the license plan is dag and that’s why he was stopped Mr I don’t remember what that do the initial stop though there was no uh there’s certainly no argument that the initial stop was invalid But but so he get stopped for had a dangling uh license plate I think that’s what meant need and then uh stopped the officer interviews the uh driver he smells smoke as him to get out of the car then the officer later asked what other circumstances led him to um have probable cause to uh search the car and I think believe this is the case where he said well I80 is a known draic trug route is is that are those the factors that so the factors I highlight I highlight my brief and this is you know an object uh a test based on objective factors not necessarily what he testified to and the facts that I believe led to probable cause in this case are that he said that he was traveling from De Moine to Chicago he was arrested or or he was pulled over in Henry County which is directly in the middle uh he said he’d been driving for hours whether he had stopped is is was certainly not part of the testimony uh the officer removed him from the car and testified that he continued to smell marijuana from the car itself not from just the person I think that’s an obviously an important factor in determining whether uh cannabis was used around him suck to him or used in the vehicle uh he also testified that there was a strong smell of cannabis suggesting that it had that it at a minimum had been smoked recently although again there’s no scientific testimony on this at the trial court level I think we can all assume the strong smell would be would would um is reasonable to assume that it’s been used recently and then that it came from the car uh and so because it is a violation of the law to use cannabis in a vehicle those factors I think lead a reasonable person to believe that Mr redond had violated the law against using cannabis in a be and how is raw cannabis different so raw cannabis is different because the statute at play is different so it what’s really important here is looking at what the crime is what the crime being alleged is it’s not simply you know no longer is it just Contraband such that it that is the kind of blanket violation that cannabis is contraband and therefore the smell violates here as the the officer even testify it is again the vehicle code prohibits the transportation of cannabis in a vehicle unless it is unless it is in an odor prooof container and so for raw cannabis because raw cannabis the smell of raw Canabis wouldn’t lead someone to think that the Cannabis has been smoked uh the difference obviously between smoked and raw is clear there but raw cannabis would lead a reasonable person to uh suspect a violation of the odor proof requirement found in the vehicle code because necessarily the smell of raw cannabis emitting from a vehicle is not being carried in the odor-proof container it’s obviously proof that there’s cannabis in the vehicle and then that you can smell it is is indication that it’s not being transferred or transported an order prooof container um Mr Molina now suggests that Mr Molina would prefer that the OD prooof container requirement not exist and so does his best to ignore it he said in opening here that it is impossible to comply with the odor prooof container uh certainly is forfeited any argument that it is impossible to comply with and I also there was there’s no testimony that it is impossible to imply to comply with the OD proof requirement uh provision and that’s clearly not the legislator’s belief because they enacted the odor proof requirement in 2019 at the exact same time that they put in place the the now full legalization system in the Cannabis act so when they when they enacted the Cannabis act and said you know cannabis is largely legal they also amended the vehicle code and included for the first time the order proof requirement so it’s clearly the general assembly’s belief that someone can comply with that requirement I would also point out the odor proof requirement it’s not the only place the O proof requirement is found it actually is in the Cannabis act the Cannabis act requires dispensaries to sell cannabis and package it in odor prooof containers when it’s at the initial point of sale so clearly the legislature believes that this is a possible uh um it is possible to contain your cannabis and old container um but Council what about the language in the medical cannabis act that doesn’t say OD approve right so that that would go to uh defendant to try and Sid up the OD proof container requirement now wants this court to Simply overrule and and strike down the odor prooof container requirement by arguing that these two these these These regimes are in conflict with each other uh if you yet to hear an argument as to why they are actually in conflict with each other he simply presumes as much and then argues that one is more specific than the other one should apply right I mean one says odor proof one says reasonably secured sealed container right is there a difference I don’t so that they’re written differently does not mean they’re in Conflict my question is is there a difference between an odor prooof container and a container that’s reasonably sealed and secured I think it is a reasonable assumption to make that a container that is reasonably sealed would be odor prooof we don’t have testimony on that from you know a scientific expert so I can’t say with certainty that that would be the case but I certainly do think that the Cannabis Act and the medical acts uh requirements that something be and a sealed or resealable container are not in conflict with the vehicle codes enactment that it being an odor prooof container I think the vehicle codes language is simply an additional you know more specific step to to the to the container you’re supposed to be carrying your cannabis in so I I do not think they’re in Conflict just because they’re written somewhat differently and I think the general assembly as I discussed uh was of the same belief when they enacted these Provisions in the same the exact same bill they put them in the same bill um there’s been some discussion briefs about the fact that the Senate passed legislation that now says that you know takes away the odor prooof requirement what should we infer from that I I realize that’s not the law matter but what if anything should we infer from that I would infer from that that the current Senate believes that the OD proof requirement uh should not be in place it it certainly means nothing with regard to what the 2019 2020 and 2021 assemblies believed with regard to whether these statutes were in conflict with each other I think well I guess I’m wondering if the medical cannabis act um requirement does not require odor proof but now the Senate is taking that out is that an inference um can we draw the inference that they believe that odor proof is required right now and we’re going to get rid of that certainly I would I would say that they understand that that is what is written in the law yes I mean clearly that is what the law says is that the vehicle code says that cannabis must be transported in an odor prooof container this current Senate by trying to uh by trying to resend that provision you know is someone acknowledging that that is the way the law is written and that’s not necessarily what Mr Molina’s point is Mr Molina’s point is that that is the way the law is written but it’s written in and in such a way that it’s a conflict with the with the medical acts um which I I you know disagree with because that the two statutes are written differently does not mean they’re in conflict with each other um I would just want to go back to one thing Justice Ty asked um uh Mr Molina’s attorney which was about essentially about standards proof and and probabilities and you know probable cause despite its name is not actually require probability in the sense that uh something be more probable than not it simply it simply requires a reasonable belief that there’s criminal activity of foot and so there’s not a 51% you know this is the most likely thing therefore a probably cause exists this court has very clearly said that that is not the case uh and so probability is is a certainly built into the word probable cause but it is not necessarily the test that is used the test that is used is what a reasonable person would believe based on the facts of circumstances considering potential innocent explanations uh and then considering all that within the totality Council I just want to ask you because I’m not real clear are there any circumstances where the odor of cannabis alone is probable cause to Surge if if the odor is a raw cannabis and it’s uh and the person who driving a you and I think that whether the small cannabis issue is is certainly a closer call closer to the smell of alcohol not necessarily before this court but um I can see that the the smell of cannabis so if a person is driving a vehicle and the officer smells raw cannabis then the officer does have will cause to Surge correct because I because it would lead an officer to have it would lead a reasonable person to believe that the that there’s cannabis in the vehicle and that because it is odorous that it is not in an odor-proof container and that is the criminal violation that issue here so so I’m still I’m confused you uh so the strong smell of burnt cannabis is not enough on its own to support probable cause for the crime of use but the smell of raw cannabis much less pungent is is probable cause on its own just um support the um may I say support I’m obviously short-handed but the problem call to believe that a violation of the uh transporting in a container is is that what you’re saying confused at all I think you yes I think that is correct that the these are these are not only are they different I mean these are tricky Consolidated cases because they’re different smok and raw cannabis and then there’s different what if it’s really strong smell of bird that doesn’t lead to some kind of Suspicion I to use that word but I mean the probable probability of um uh failure to have have a container could that related in any way so in the brief I do argue that the smell of the tricky part is that the word strong is already another Factor on top of the smell and so the strong smell of cannabis is different than the smell of smoked the strong smell of smoked Canabis is different than the smell of smoked cannabis so the strong smell of cannabis it would be now that’s two factors right you have the strong smell and and smoke okay so burnt cannabis you’re stopped and the officer smells burnt cannabis in your opinion well your argument is that that alone is insufficient to Surge the vehicle I think that’s correct though it’s not necessarily before this court because there were addition this this court doesn’t have to answer the question here because there were additional circumstances in this case which I believe led to the problem cause Okay questions thank you very much coun for this court to accept the government’s presumed distinction between the treatment of raw cannabis and the treatment of smoked cannabis this court would have to first find that the Illinois legislature legalized the use of cannabis the possession of cannabis provided that that cannabis has already been smoked no no no not just you smoking in a vehicle that I mean the concern here let’s go back to where we I start concern here is the safety of the public driving down the highway and impaired uh drivers and we’re concerned about drunk drivers and we’re concerned about high drivers so this is narrow to what is happening inside this car so I ask you to at least uh limit your um remarks to the vehicle part of it absolutely yes uh your your honor is absolutely correct that is the concern is it not the concern is that we don’t want impaired drivers operating motor vehicles under the influence of cannabis or while consuming cannabis and your honor has repeatedly asked it both myself my colleague Mr Carmen and my opponent um questions regarding the alcohol statutes and the interplay of them and and how we should look at them for guidance as to how we treat cannabis and I’ve agreed with your honor in response to your Honor’s question of me that I think that that’s a perfectly appropriate comparison um and and I was listening carefully to my opponent when my opponent was answering your questions on this very issue you asked him about a container of alcohol in the vehicle is it your your honorable recall you asked of him can a person use alcohol while driving down the road and the answer was well no there are some restrictions on use of of of alcohol well I want to be more precise in response to that um illegal transportation of alcohol is comprised of the transportation of alcohol within the passenger compartment of a motor vehicle when there’s a broken seal when when when the container of alcohol is open and in fact uh in response to the Court’s question with respect to whether there’s any uh jurist Prudence or any any case law on the issue um we cite within our brief a case that deals with the issue of the strong order of alcohol coupled with an officer’s observation of an open container of alcohol in a brown bag so there was an additional factor and and and that’s that’s ultimately the argument here the argument is that the officer can consider the totality of the circumstances when determining what weight to be placed on the order of cannabis whether it’s raw or whether it’s smoked that that that is a a distinction of very little constitutional importance that our government is attempting to distract the court to focusing on in the issue of whether or not the the law requires that the the Cannabis be in an OD prooof container or reasonably secured container we can focus on that issue but ultimately that’s not really the issue before you because whether it’s in an order prooof container doesn’t respond to the question of whether or not the order of cannabis connotes unlawful Transportation it is a factor that the officer can consider in the probable cause calculus whether the Cannabis is raw whether the Cannabis odor is is is burnt cannabis uh is is a distinction of of of little to no constitutional importance to this Court’s determination once cannabis was legalized it wasn’t legalized provided it was smoked only once cannabis was legalized the order of cannabis in a motor vehicle whether it’s burnt or whether it’s raw must be only a factor in the probable cause analysis it is not the be all and endall it the the government essentially concedes that it’s a totality the circumstances analysis in response to your Honor’s question with respect to the person walking down the street and I realize that’s not a person driving but there are restrictions in the the recreational Cannabis act that prohibit someone from consuming cannabis in a public place but the government concedes if the officer is walking down the street and smells someone um who who smells of cannabis the officer doesn’t have a basis to stop and search that individual notwithstanding the smell well I think that conceived the point Council and that calculus is the smell of the Cannabis and the very very strong smell of cannabis is there a difference between those is the gradiation of that smell make a distinction that changes the calculus in and of itself no and the reason is because the the detection of the old factory senses as Mr Carmen argued is is highly subjective invariable uh and and so the smell alone without more is not sufficient I gave the example of the the strong smell of burnt cannabis coupled with smoke wafting out of the vehicle or perhaps ashes burning in the vehicle that would be additional circumstances that would go into the probable cause calculus that might establish probable cause um but the smell alone simply can’t be a basis uh for a search thank thank very much kaso roners we’ve been dealing with some large questions questions today but because of Mr ness’s argument I have to deal with some small ones uh he has suggested that this case is different than the average Burke cannabis case because there are other factors well I would direct him to judge Dalton’s opinion because judge Dalton dealt with each and every one of those factors judge Dalton said there’s no evidence of impairment judge Dalton completely dismissed the idea and I admit that I wrote about it somewhat mockingly in my reply brief the idea that de Mo to Chicago is a major drug Corridor um I’ve been doing cannabis trafficking cases for 23 years and that’s the first time I’ve heard that one I’ve heard about California I’ve heard about Arizona I’ve heard about Colorado but I’ve never known the Iowa uh to be a major source of drug trafficking there’s also the officer taking into consideration my client’s living and driving plans about how he was staying in De Mo again I don’t because of Co I don’t know how that really plays into everything but this court reviews in motion suppressed this court reviews the factual conclusions of the trial court on a manifest weight of the evidence standard and there is no evidence at least based on Judge Dalton’s opinion that any of these things really played into the trooper comes’ determination to search the vehicle in fact I asked the trooper I said you’re really doing this because you spelled cannabis aren’t you and he said that was the major reason that I did this and I think the court uh the Court’s opinion excuse me the trial Court’s opinion suggests that it there really wasn’t any other reason the reason was because he smelled it and he thought again because Stout hadn’t been changed or Hill hadn’t been changed that’s he he problem we still had probable cause and we really haven’t talked about Council the good faith exception what’s what role does that play I don’t think there is a good faith exception in this circumstance because the legislature enacted the cannibis act in 2020 I believe became effective in early 2021 this search took place almost a year I think after that law took forc police officers knew at that point that the possession of or or should or should know by that point that the smell of cannabis isn’t the same as it was prior to in the hill and stout era uh the last thing I’d like to say and I know I don’t have a lot of time here is that this whole idea of plain smell is just a treasure Trove of pretext and unfortunately racial discrimination uh the statistics quoted by the ACLU in their reply are are staggering uh with respect to the disperate uh stop and search of vehicles driven by people of color rather than by uh Caucasians and it shows that this court needs to be cautious with allowing something as subjective as Al Factory senses to allow officers to search vehicles on on a pretex and and I think uh J Justice Ty was very apt in pointing out I think uh that my client was stopped because he had a dangling license plate while my client also is African-American and that’s why it’s it’s very important that this court proceed very cautiously in trying to expand in like expand how cannabis is used as a pretext excuse me the smell of cannabis is used as a pretext for searching vehicles of people of color and other minorities I think that’s repard thank you honor thank you very much and thank you all three lawyers for your vigorous arguments we appreciate it very much on this interesting question this case um should I get the number 129 2011 129 237 agenda number four people of the state of Illinois versus um uh Redmond and Molina Consolidated will be taken under advisement thank you well that was truly riveting I hope you guys found as much entertainment in that as I did I I think it’s interesting that the attorneys uh are making this a constitutional argument I am no attorney but I feel like this is this is exactly what I would think is a constitutional argument these uh this is just a clear violation of our fourth amendment rights when you say that odor itself is a factor that’s that it’s a crime um I like that the uh defense made the point that odor prooof is scientifically impossible uh exactly it is and I think it’s interesting that they brought up the fact that dispensaries are required to sell the products in odor-proof packaging I think it’d be interesting if the attorneys brought in an unopened package from a dispensary and passed it to the Supreme Court Justices and asked them if they could smell it because they probably will be able to uh if you’ve ever been to an Illinois dispensary it if you’ve ever been to a dispensary period but I’d like to make the point specifically about Illinois since this is the context of this conversation if you’ve ever been to an Illinois dispensary you know that it does smell like cannabis and if you know anything about the rules and regulations you also know that cannabis is not packaged at the dispensary this means that the Cannabis products that are at the dispensary are not odor proof meaning that the moment you leave the dispensary and get in your vehicle by the way that the state is arguing you are immediately out of compliance with the law because you need an not aprof container but no such container exists I’d be interesting to see the defense ask the state uh you know which container could we use um I think it was I think it’s an interesting question how does hemp play into this hemp doesn’t require a odor-proof packaging there’s no there’s nothing that spells out that hemp must be packaged in odor prooof packaging and it is cannabis it smells just like cannabis and it’ just be interesting to see uh how that is uh if that’s a factor or if that’s anything that that they should consider um the idea of a secure place having it reasonably secured I thought that was an interesting discussion and uh interestingly as they noted uh that start I mean it is defined in the medical cannabis law it sounds like but the vehicle code part of this conversation which brings in the odor proof language was as I understand it a a a a result of the Cannabis regulation and tax act in other words if if I could remind you all cannabis was decriminalized small amounts before 2019 and this meant that by the color of the law then if you had like a an eighth in your front pocket you could see me displaying my front pocket and an officer discovered that on you you would be issued a citation right um nowadays if you had a dime bag in your front pocket as you just heard the the state argue uh that is out of compliance with the law and it is improper transportation of cannabis because it must be in a sealed OD prooof container so if you just had it in a baggie in your front pocket that’s actually a crime now from what I understand it is a class A misdemeanor uh I do believe and so it’s it’s not just that it’s you it’s being used as a pretext to search your vehicle and violate your fourth and fifth amendment rights but it is uh yeah it’s a crime crime in in of itself so I think it’d be interesting if they brought cannabis into the court I thought it was interesting that they brought up around 31 minutes in the smell of alcohol alone uh cannot be used as a pretext to search a vehicle and that alcohol is not required to be an odor-proof containers I feel like since the the the judges are so are are really looking for an analogy here there it is if you’re looking for some analogy I thought it was very very interesting to hear them debate the smell of raw cannabis versus smoked cannabis I know that what I’m about to say is anecdotal but try explaining that to my mom I used I used to get in trouble all the time uh my mom would accuse me of smoking weed in the house when really I just prepared the weed in the house like maybe I rolled a joint and to a Layman they cannot tell the difference between smoked and raw cannabis besides the fact if there is like literally a haze in the room then they know you know it’s smoked cannabis but most people cannot tell you the difference between raw cannabis and smoked cannabis and I’d love to hear an officer tell me the difference because of course they’re not allowed to use cannabis so how how would they know the difference between raw and smoked cannabis I also thought it was interesting that they were debating the idea of the odor of cannabis and the strong odor of cannabis it’s like these subjective things and I thought that uh the defense attorney even though they seemingly like put down this argument um I thought it was a great argument to say that the old factory senses are not enough to determine whether or not a crime has occurred in other words just me smelling isn’t enough to determine oh yes you smoked within the last x amount of hours or that you even smoked at all it’s just subjective you could be smelling a skunk on the roadside for example now I know that the the state argued that they brought the individual out of the car and they still smelled uh cannabis coming from out of the car I mean that that’s completely possible you know I’ve talked to attorneys that have purchased cannabis left it in their truck went grocery shopping and when they got back in their truck their entire vehicle rre of cannabis I mean did they use the Cannabis no so that that’s a big hole the last thought I had um that was a big hole in that logic in my opinion the last thought that I had was the idea of the current Senate trying to address this and the state’s response seemingly putting that down it’s like the current Senate seems to be acknowledging that this is an issue that needs to be addressed and he just didn’t seem to have a very good response to that he really leaned on the fact that the the 2019 General Assembly knew what they were doing uh they they obviously knew what they were doing if they added this language as something to the effect of what he said um you know I I just don’t know that was around 40 minutes in I tried to take some notes on where the timing was I just disagree if the Senate is looking at removing it I think that above all else I think the the two most powerful points are that the Senate is has in the past tried to remove this language from the law but also the fact that odor prooof is impossible to comply with and you need to look no further than the dispensaries themselves here’s what I’m going to ask you if the operators cannot comply with this regulation how is a normal person supposed to why does that fall on a normal person again the products sold in Illinois dispensaries are not odor prooof and they can’t be I mean look I’ve talked to several officers that work with Kines and they all admit that there is no such thing as an OD prooof container if there was k9’s would no longer be effective it would it would essentially undermine the entire concept of using a k9 uh unit to detect things via smell if there was such a thing as an odor-proof container uh cartels would be pioneering that invention to and they would be able to avoid smell detection ask any K9 unit especially ones with a lot of history there’s very little that a dog can’t smell and uh frankly a allowing a person to say that they smelled something is just again I think it’s dangerous precedent and I think these attorneys are arguing their case well um I will reiterate that I spoke to another attorney about this and uh they told me that they wanted to review uh the oral arguments first but that they they wanted to watch the oral arguments to confirm their prediction but their prediction was that they did not think the court would issue a favorable opinion for the defense bar which is really unfortunate to hear I think to put that in simpler terms uh it sounds like it’s not going to go in the way of uh cannabis consumers uh essentially they believe that Illinois Supreme Court May permit using the smell of cannabis as grounds for car searches um after they review the oral arguments they told me they they would be up for a podcast so stay tuned for that we’ll get into uh some of the questions I asked and and maybe see what a legal professional thinks about these things folks I hope you found as much value in this episode of the Cole memo as I did stay tuned on the uh on this case I will do my best to keep you all apprised of uh the details that come out so until then stay safe stay responsible transport that cannabis in an OD prooof container otherwise the uh State’s going to come and get you take care