The Cole Memo

In this episode, Attorneys Evan Bruno and Kulmeet Galhotra join me for a conversation about how cannabis odor is being used as a way to violate citizens’ Fourth Amendment rights. For our main topic in this episode, we recap oral arguments that were recently heard in the Illinois Supreme Court regarding this very issue.

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Links mentioned during show

• Visit Evan Bruno’s website here 
• Visit Kulmeet S. Galholtra’s website here
• During the episode I made a reference to ‘meaningful reform’, I was referencing this article by Attorney Bruno
• Episode 1 with Evan Bruno can be found here 
• Episode 2 with Evan Bruno can be found here 
• Episode 3 with Evan Bruno can be found here 
• Episode 1 with Kulmeet S. Galholtra can be found here
• Watch entire Illinois Supreme Court hearing here

The auto-generated transcript is available below.

in this episode of the cole memo I welcome back defense attorneys Evan Bruno and coal meat gtra if you’re a cannabis user in Illinois these names should be on your radar whether you’re a seasoned smoker or just an occasional user having access to legal representation in the context of using or possessing cannabis in Illinois is still crucial fortunately you can easily connect with these experienced defense attorneys through their respective websites which I’ve ConEd veniently Linked In the show notes for this episode as I said this is not the first time that I’ve connected with Evan and kolme for a podcast episode if you’re interested in diving deeper into their insights and expertise check out the show notes for links to our previous conversations these past episodes offer valuable discussions and information that can further inform your understanding of the legal landscape surrounding cannabis in Illinois stay informed stay connected and ensure you have the legal support you need when it matters most this is the Cole memo I am your host Cole Preston every episode is released in audio video and transcript format to find the transcript audio or video version of any episode please refer to the description of the episode that you’re listening to now within that description you can find a link that will take you to our website which will display the transcript for this episode and the platforms where you can find this episode in audio or video formats if you’re unable to locate the episode description on whichever platform you’re listening from Simply note the episode number and visit the memo.com from there you can find the corresponding episode and then you’ll be able to access the audio video and transcript version of that episode you might also find any links that we reference during the episode so that you might be able to do your own research those links I mentioned earlier for example will be found in the show notes for this episode if you’re not listening to this episode of the Cole memo on patreon then you are listening to this episode later than our patrons to become a patron go to the memo.com patreon once again that’s t h c o l e m M o.com p n it’s a great way to support our show it costs a lot to do this show from hosting to licensing and everything else subscribing on patreon only costs $3 a month and it allows you to get access to shows as they release and it’s a way to directly support this show this support this show is funded by listeners like you one of the best ways to support our show however is absolutely free subscribe to or follow our show leave us a positive review from wherever you’re listening to us from favorite this episode give it a thumbs up leave a comment or post a review your engagement and support is appreciated today is January 17th 2024 enjoy this episode of the Cole [Music] memo thank you both for coming back on to the show today and uh flip of a coin um either one of you please introduce yourself and importantly tell your audience where tell my audience where they can find you uh in case they need your services take it K well Bruno Evan should go first but anyway uh I’m K G hotra well known in the community as Bob Galhotra I’m a criminal defense attorney it’s my 33rd year practicing in Illinois uh and uh I’m a Adjunct professor at Chicago Kent College of Law and uh I do primarily criminal defense uh here up in Cook County and also in other counties throughout the state of Illinois I’m Evan Bruno of Bruno law offices in Urbana Illinois uh my firm all that we do is criminal defense and traffic defense all throughout Central Illinois um based in Champagne County but we do the whole um area mostly East Central Illinois um and uh there’s a few other lawyers here but I’m kind of uh I’ve taken a particular interest in this subject matter as you know Cole absolutely absolutely and folks if makes it easier on you we’ll have uh the links to each of their websites in the podcast description uh really quick maybe both of you or either of you can say it better myself but I just want to make it clear today that that everything we cover today we talk about is not legal advice uh we’re simply discussing what has occurred in Illinois would either of you like to add to what I’ve just said I mean I think that’s a great disclaimer to get real legal advice you should talk to a lawyer personally about your own personal situation and try not to draw too many conclusions from what we’re talking about because we’re not giving you legal advice we’re just discussing the law and uh from what I understand we’re going to discuss this Supreme Court opin uh Supreme Court argument that was just heard in the Redmond and Molina Consolidated cases yeah and if I could tag it right back to you cool me can you give us the history of uh how we got to this Supreme Court case and and I if if we could start in 2016 um like I was telling you before the show cannabis was decriminalized um it was decriminalized in uh 2016 but it wasn’t legalized and there are a couple of opinions that came out during that time period uh or or or actually spoke about events that occurred during that time period people versus Hill from the ill Supreme Court being that main decision so it was sort of suggesting that hey look you know recreational use and complete legalization which happened uh starting in 2020 January 1st of 2020 um although the law passed in 2019 uh that’s when it actually became legalized so um there was no provision uh I mean decriminalization means it’s still illegal it’s just we’re not going to charge you criminally legalization means you have an absolute right to have it um you know unless you’re under 21 or unless you have too much Etc um so yeah you know the medical use the compassionate use that began in 2013 uh prior to that it was completely illegal and then 2016 came the uh legal uh to decriminalization and then in 20120 is when we began legalization and recreational youth but since hell we really haven’t had a case from the Illinois Supreme Court to discuss um the uh landscape as it is now with complete uh legalization of recreational use Canabis yeah and specifically the the odor of cannabis it seems has come up as the core issue that that we’ll be discussing today absolutely yeah can can I add on to that and I don’t I don’t think cool meat would disagree with anything I’m saying here but and Cole you and I have talked before about um the difference between CRI decriminalization and legalization I it’s just semantics in a way but I kind of take the opposite of uh terminological approach from K I think uh decriminalization if I heard that and i’ you know I’d never thought about this before I would think decriminalization would mean we’re no longer going to rely on the criminal laws and enforcement mechanism for this and we’ve talked about you know the legalization of cannabis the law passed in 2019 that went into effect in 2020 did not repeal a single criminal law for cannabis it just kind of extended a tight rope out over the existing criminal laws and said as long as you walk this tight RPP you don’t fall off it you don’t do anything um outside of this narrow boundary uh then you can legally use or possess cannabis but it it it always strikes me the wrong way as saying we’ve decriminalized cannab abis without repealing a single criminal law regarding cannabis and I’ve taken the position that it’s it’s almost easier now to get in trouble criminal trouble for cannabis than it ever has been in a lot of ways um and obviously one of the big reasons for that is uh the same moment in time that cannabis was legalized in Illinois in January 1st 2020 it became a criminal violation to have the odor of cannabis so it would be like legalizing uh guns but criminalizing the odor of steel or Gun oil uh it’s it’s kind of an indirect way of legalizing it but not really um and so and again it’s just semantics but um it seems like we’re not going to have what I would consider legalized fully legalized fully decriminalized cannabis um until we break down a few more of those uh criminal ways that people can get in trouble for it um and obviously it’s a segue probably into the odor prooof container rule yeah I mean the odor prooof container rule really is at the heart of the uh Molina decision right because you know in Molina you’ve got this car that’s uh the traveling and it gets pulled over because um I I think the driver was feeding so the officer comes up to the passenger side and this is a guy who’s got a medical license and it’s becomes known to the officer prior to the search but based on the smell and uh you know of course the stop was based on the feeding he searches and finds in the console some some joints that are in a box and he finds tupperware container in the glove compartment which had some cannabis in it right so now this person’s a medical card holder the whole issue is whether or not it’s in an odor-proof container if he had gone to a dispensary uh and and and gotten the the Cannabis and it was in a sealed container it may or may not still have produced some smell that’s really the issue right right somebody can be in complete compliance with the law but the law that was broken in this Molina case was happening was having um was violating the vehicle code by not having it in an odor-proof container that was a violation I wanted to ask you about that it’s a subject I’ve talked to both of you about um having cannabis and odor-proof container and like you said maybe if he had it in a dispense if he would have purchased it or they purchased it from a dispensary uh they still would have ran into that issue can you both of you because again I’ve talked to both of you about this illustrate what you meant by that because most people think hey if I bought it from the dispensary I’m okay well you know I I know Evan Evan can confirm this and um we don’t really believe there is such a thing as an odor-proof container that’s really the problem I think that that was the thrust of the argument behind uh the bill that the Illinois State Bar Association um sponsored that Evan had drafted which was to remove that word from the Illinois vehicle code so fine it has to be in you know a sealed or resealable container that’s in accessible but this odor prooof language is a bar that’s just very difficult to to uh you know Ascend to and and then you’ve got opinions also where if a canine which has a nose that is much more sensitive than the human nose smells it that’s also considered to be not an odor-proof container because well if the dog could smell it then it’s not odor prooof so that’s the it’s a catch 22 in Illinois and you know counties that enforce it and some counties where they look at this as a reason to have their pretextual searches and find whatever they may want to find or even subject your vehicle to forfeiture Evan I’m sorry no I I and even taking a step back the perversity of the odor prooof rule can’t be understated because first of all practically speaking there are not odor prooof containers if you walk into a dispensary any dispensary you it smells like cannabis and people don’t think about it but they’re not packaging cannabis there it’s not like they get a truckload of raw cannabis flour and they open a big bag and they start pting it in the containers and then it’s sealed the containers come to the dispensary sealed the odor-proof containers required by law come to the dispensary sealed at least every dispensary I’m familiar with so these the reason why a dispensary smells strongly of cannabis is because all of the containers that the Cannabis has been delivered to the dispensary are not odor prooof so that’s that’s a first point of view a first point and then if you go to the dispensary and you buy a container of cannabis flour and you put it in your glove box or you put it in your living room you can your living room or your glove box will smell like cannabis it’s this is demonstrable anyone with 30 bucks can go test this themselves zooming out even further what’s incredibly perverse about this rule is the bar is unreasonably high on purpose think about the rule the legislature passed the legalization of cannabis and then they said we’re going to make it a crime if you fail to conceal the odor of cannabis from law enforcement why would they ever do that why would they why would any reasonable legislature who’s thinking about what they’re doing ever criminalize someone’s failure to conceal the presence of cannabis from law enforcement I think and I have this on good authority that the reason is because God forbid the legalization of cannabis takes away the tool from law enforcement officers that they can use the OD of cannabis to search cars that was a major sticking point in the discussions in Springfield between the Union uh the the police uh trade unions and the police lobbying groups and uh the legalization groups was you know all right if this is going to happen if the title wave of legalization is coming to Illinois at least give us this at least don’t take away our tool to be able to use the odor of cannabis to search these cars and that is the only explanation a logical person can come up with when trying to figure out why would the government why would the state of Illinois want motorists to conceal the presence of cannabis from a cop you’d think that if it’s about safety roadway safety impaired motorists you’d think the last thing they’d want is for or a cop coming up to a window to not be able to tell if there’s cannabis in the car except they said it’s a crime if that cop can tell with his nose that there’s cannabis in the car it’s a crime you’ve committed a crime right they do that that’s an interesting layer to this that I think is not being discussed not only is it a means to get into your vehicle and arguably violate your rights but it is a crime yeah just absolutely and you know Cole here’s the other thing right you know in some of these cases in Molina there actually was Cannabis in the compartment whatever you know the whatever small amount uh in Redmond there was you know a small amount of cannabis as well right like maybe a gram or something like that what about all those other situations where they do a search and they don’t find anything right nobody gets charged the people drive away there’s no forfeiture but there’s been this huge inconvenience just because you’re a consumer of cannabis in the state of Illinois it basically puts it it really you you almost lose your rights in some respect the way the law is being enforced in certain parts of Illinois if you’re a canonist consumer yeah it’s crazy it’s crazy um and this might be a good way to segue over to the the supreme court hearing um but one really quick Evan I just wanted to uh clarify are you I know we’ve heard those things before but I just wanted to clarify since you were just you know giving testimony um in Springfield did you hear any of those concerns from law enforcement like hey how are we going to get into the vehicles type talk uh um no the so the there’s was kind of two layers to the bill the original bill that I drafted the the original thing was a simple line through the word zor proof yeah and the words so there was C medical cannabis container and cannabis container in the Laine I said well what is a cannabis container why are we confusing it let’s just draw a line through overproof and line through cannabis container it’s got to be in a sealed resealable child resistant container that is reasonably inaccessible that’s a nice safety measure if we’re worried about people driving down the road using cannabis the there was an add-on that said the odor of cannabis cannot be probable cause to search a vehicle so then the the argument in Springfield kind of became about more about that second part about you know how are we to enforce um impaired driving this takes the tool away from the police what if they smell cannabis and you know he gave some exam I gave some examples where you know uh it’s not um it’s still the Fourth Amendment it’s still probable cause based on the totality of the circumstance ances but it can’t just be the odor of cannabis so if it’s the odor of cannabis and there’s a bunch of 20 year olds in the car none of them are allowed to have cannabis then that’s another fact if it’s the odor of cannabis and wow this guy was driving 15 miles hour down the interstate his eyes are bloodshot and glassy and he can barely make eye contact that’s those are other facts so it’s it’s just a question of um is it just cannabis because that’s the rule now or should it be cannabis God forbid we ask police officer to point to one other thing just one other thing that raises his suspicion and that came up at the hearing he said well the guy’s coming from IA a known there a known drug Corridor so um yeah and and I that’s exactly it there should be something else to corroborate usage if you will in Redmond there was a strong of burnt cannabis but you know when the cop uh went to pull the guy over he pulled over right away the guy wasn’t uh you know moving around in his car there were no fic movements um when the cop approached well I don’t know I don’t know if he was a trooper when he when the law enforcement officer approached the vehicle and went and looked into the window you didn’t see anything like you know big blood smoking or you know smoldering whatever you want to call it he didn’t see anything in plain view he just smelled it he didn’t see like a big puff of smoke being blown in his face or anything like that so I mean based on that you know um you know the guy didn’t have a license and he didn’t have registration you know good rule of thumb it’s good to have your license on you when you get pulled over so he was asked to get out of the vehicle and when he stepped out uh even though there were no signs of impairment they did a search and that’s probably why the uh trial court in Redmond sustained the motion to suppress you know H that’s exactly why because it was just the smell of marijuana that there smell of cannabis that’s it and one of the things that I was really disappointed at didn’t get really flushed out at the hearing is a different you know okay let’s go along with the idea that we’re very worried about people driving High impaired drivers smoking while they’re driving down the road and they’re they might get in accidents they might endanger other people I I can accept all that but there’s a difference between a police officer doing a DUI investigation a sobriety investigation and toss in a car those are two totally different things if the cons if if you smell the odor of burnt cannabis it is not a fourth it’s not the same level of Fourth Amendment um question for an officer to say look look buddy your car reeks of burnt cannabis it smells like you’ve just been smoking I’m going to have you step out of the car and do some field sobriety tests for Me Maybe I’m going to ask you some more questions when was the last time you smoked cannabis um maybe I’m going to look a little more carefully at your eyes or you know there’s plenty of police officer can do to check sobriety but it’s like the Supreme Court at least in the hearing or or it’s like The Advocates in the Supreme Court in the hearing almost looked at it as well that’s the same thing as just saying step out of the car I’m now going to search your vehicle yeah it’s two totally different things one is looking for whether someone’s driving impaired the other one is searching property to contraband they’re not the same thing so there’s plenty of situations you can think of where one might be appropriate and the other might not be and we got we got to separate the two and the general assembly you know has done things to to create this whole uh or or to account for people who are too high when they’re driving by having the five nanogram and 10 nanogram for uh recreational and medical users respectively right for having those levels in case that that kind of t HC is in their system and uh you know there’s the implied consent laws where you know if you don’t give up your um biological sample whether it’s blood or urine I’m not sure I think they use blood primarily for this kind of testing if you don’t give it up then you know you your license is suspended for a period of time Etc so there there is a mechanism to deal with people who are impaired who drive uh impaired on cannabis that’s there and this search and seizure stuff that Evan and I are talking about has got nothing to do with it because that’s more about recovering large quantities of cannabis for interdiction um and also by you know in Chicago this is primarily used as a means to take weapons off the street to recover weapons you know the the whole idea if they smell cannabis it’s not to to charge you with cannabis possession it’s to search the vehicle to find if there’s any other um contraband there any Contraband because I really don’t think cannabis is contraband in Illinois anymore unless it’s too much right and then somewhere along the line civil asset for forfeiture probably comes into play um absolutely depending on the kind of vehicle um and you know the state police uh the the the law is written such that they get the Lion Share of the proceeds from the forfeitures so they’ve got a profit motive there’s definitely a monetary incentive uh for law enforcement in executing warrantless searches of vehicles based on the smell of marijuana alone period well let’s get right into the uh Supreme Court case you’ve kind of mentioned it I just want to do a brief uh so you said one of them was people ver there’s two cases people vers Redmond you describe Bina the other on you know this the Supreme Court took this case because of the five judicial districts in um Illinois two of them had a conflict the other ones hadn’t really spoken about this issue yet so it was the Third District which um uh ruled on an opinion from Henry County that’s along the I 8 core if you Redmond case and then Molina which was from Whiteside County and Molina was the uh that was Third District so it’s a conflict between the third and fourth district and Evan forgive me I did the districts change is the fourth district now the fifth district or something yes yeah so that makes it even more they shifted yeah yeah but the bottom line is there was a um conflict among the two districts and the Supreme Court wants to try to resolve this conflict about whether or not smell alone is sufficient and the way this case came up wasn’t typical because in other states stes the way the can the way the cases come up uh as I’ve seen have been uh in many cases based on k9ine Snips and canine’s being trained for cannabis detection as well as other drugs and then therefore if you have an alert at but cannabis is now legal in the state for example in Colorado is that drug sniff good enough uh even if something else is searched so that’s the way the the issue presented itself initially here we’ve got violations of the vehicle code which pertain to having the uh cannabis in an odor prooof container that’s really the Touchstone of both of these cases yeah yeah and um I’ve got our first time stamp pulled up which I think is very very relevant it has to do with the analogy between uh cannabis smell cases to alcohol cases but before we get to that specifically um I’m not a legal professional at all and I think people know that um but I wanted to make that clear I just H watching this from a Layman’s point of view I like that this is it seems the defense is arguing a constitutional argument what’s just I’m curious just on the the way that this that they started like were as I would say as an unprofessional person I really did I dug it I loved it um but as a professional were you like yes that’s how I would have approached it it’s all a constitutional argument at bottom the search the fourth amendment is at the bottom of all of this the question is whether you know in the Fourth Amendment basically boil it down prevent protects people from unreasonable searches and seizures in the vehicle context it’s well recognized you don’t need a warrant to search a vehicle that’s being driven down the road if you have probable cause you don’t need to get probable cause and then go to a judge you can just search it right then and there if you have probable cause and probable cause for uh to believe that a crime is being committed and there will be evidence of that crime in the vehicle and the you know we’re kind of indirectly getting to it but one of the weird things about the Redmond case where it’s the burnt cannabis and again this is something the Supreme Court kind of glossed over is if the Cannabis has been burnt presumably being consumed having been consumed um what evidence might there be of the crime from searching the car wouldn’t the crime be the DUI driving under the influence in the Molina case where the container was at issue raw cannabis the evidence of the crime would be we look in the car and we find the Cannabis and look aha it’s not in a sealed resealable child resistant odor-proof container that’s inaccessible but the reason why they need the probable cause in the first place is the Fourth Amendment so it’s a constitutional fourth am Amendment issue in both cases it’s just what is the how do you pierce through the fourth amendment in Redmond it was the older of burnt cannabis and Molina it was the order of raw cannabis if we’re assuming that the officers knew the difference between the two yeah I mean constitutionally speaking right all searches have to be reasonable so the issue is is it reasonable to search a vehicle that smells like cannabis where cannabis is legal in the state that’s really the issue right right and and and the burnt versus unburnt uh I think they came to almost um what one would consider to be um the the answer was not intuitive at all it was counterintuitive what the answer was in this argument at least right where and and I think there aren’t portions that you want to play Cole so maybe that’s segue into that yeah uh I’ll start start with the one that you just mentioned which is the idea of unburnt versus uh raw cannabis so I’m just pulling that up right now and uh we will share our screen for playback ask you because I’m not real clear are there any circumstances and the audio is a bit quiet I’ll boost it post- production just wanted to say it for you if you’re having trouble listening it listening to it 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 is driving a vehicle and I think that whether the SM 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 can cannabis then the officer does have probable cause to Surge correct because I because it would lead an officer to have it would lead to 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 prooof container and that is the criminal violation that issue here so so I’m still I’m confused WR uh so the strong smell of burnt cannabis is not enough on its own to support prob cause for the crime of use but the smell of raw cannabis much less pungent is is prob cause on its own to um support the um may I say support I’m obviously shorthanded but to prob caus 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 so and to say really quick this is a debate I’ve had with my parents for years they’ve come into my room and they’re like why are you smoking a joint in here and it’s like no I rolled a joint in here do you want to smell what it smells like if I smoke to join in here sorry I just had to insert a little bit of humor what what I’ll say is Evan and I I think may have an expert witness for our next case yes you do it sounds like you do yeah they can’t tell the difference um which I think was your point and and waned me to cue that that clip up um thoughts on that before I I wanted to also segue to the idea of of you know the analogy to alcohol cases with smell but any thoughts as I pull that up yeah I I mean you know in that underlying opinion uh the stribbling case uh I’m sorry the Molina case Justice stigman actually uh discusses whether or not there should be an analogy to alcohol and he kind of throws it out the window and says no that’s that’s stupid I mean that’s they’re just so different you know that uh uh you know he he he thinks that they are not really commensurable the comparison to alcohol and uh I don’t know do do you remember that that section of the opinion Evan well vaguely but I I tend to agree with that in the sense that um I me just practically speaking how many times in your life has show someone shown up to a party with alcohol and you’ve said ah smells like some good alcohol you’ve got there you got to crack it open and then you can smell it and even if someone’s sitting at a table with a glass of vodka pure vodka or whiskey or Burg you know Tequila whatever you got to get kind of close to smell it it just behaves differently than cannabis and um it is unlawful in Illinois to have an to drive around with an opened container of alcohol that usually is like uh you got a bottle you’ve cracked taken a swig you put the cat back on you usually can’t smell it um I don’t think it’s a great analogy I think the better analogy is the odor of alcohol and the odor of burnt cannabis if an an officer pulls someone over and they smell the odor of alcohol and they’ll always write in the police report I smell the strong odor of an alcoholic beverage on the motorist’s on the driver’s breath coming back to the point that’s a great reason to do a field sobriety investigation but if you P if I’ve never in my entire career seen a police report that says I pulled over the driver I smelled the strong odor of an alcoholic beverage on his breath I removed him from the car and I searched the car two totally different things and it seems like in that clip you just played there’s kind of a conflation of again what do we do if we smell burnt cannabis meaning the might be High versus what do we do if we smell raw cannabis meaning it might be in the wrong container so I think that’s the when you try to use alcohol as a comparison um it only applies in that limited way yeah here’s here’s what uh um Justice stagman said in in um the Molina opinion defendant also argues that cannabis should be treated like alcohol pointing out that the smell of alcohol alone has never been held to provide will cause for a vehicle search the implication of defendant’s argument is that because cannabis an intoxicating drug has been legalized and regulated Illinois case law for another intoxicating drug specifically alcohol should control over established precedent we disagree and note the defendant provides No Authority for us to conclude otherwise alcohol is regulated differently than cannabis it’s not illegal to possess more than 30 grams of alcohol similarly no statutes like the um statute which requ which which I think speaks to having uh cannabis uh open OD in a non-odor prooof container um there’s no requirement that alcohol be in an odor prooof container just that it be sealed uh and not open um so you know it all I think comes back to and if you read that if you read the Molina opinion San’s basically saying Hey general assembly it was at the same time that you did this uh legalization of cannabis and uh recreational Cannabis that you also change the vehicle code and put the odor prooof language in there you did it at the same time we assume you dummies meant to do this and at the more specific law controls so hey guess what if you smell it in a vehicle it’s not an odor-proof container so um nobody ever told us no hearing was held below that this stuff always smells it doesn’t matter if it’s sealed or not that there’s no such thing as an odor-proof container that’s just not in the record below and if the judge is doing all these musings about well you could have worked at a dispensary and you got it on your clothes and now you smell like it you know that’s all great and dandy but that’s not in that’s not actually inevident so we can’t go on that it be two things one I’m sorry aan no no go ahead please it tells me two things one we got to change the law on odor proof and get that language out of the law one um and uh two if we don’t do that then in the trial courts lawyers have to present testimony about how this stuff smell whether or not it’s in a container because there’s no such thing as an OD prooof container can I do some interviewing here for a second Cole yeah so Bob here’s what I’ve been chewing on say you present such testimony at a hearing you have an expert witness come in maybe you have people who work at a Spencer come in what is the hook legally wouldn’t the judge say okay so you’re telling me that there’s no such thing as an odor-proof container what do I do with that as a judge what does a judge do with that say does he invalidate the law or is a violation of the rational basis test it it seems like at the end of the day the judge would conclude maybe there’s no such thing as an not prooof container and so if I’m being as if for True Fidelity to the letter of the law I still find that it was a violation of the law and therefore probable cause maybe it’s an impossibility defense right may maybe it’s sort of a possibility defense they there’s no way you can comply with the law even if you wanted to you know I would think that would be the hook that might be a defense to a charge for a criminal charge for um illegal transportation of cannabis not in the right container I still think a C is going to say well what am I supposed to do I got a good faith defense for why I search the car the law says this I’m not I you know I don’t have the capacity on the road side to be you know testing out whether there’s such thing as an OD prooof container all I know is I smell cannabis which just comes back to your point that we got to change that law that Law’s got to go yeah so if your viewers are out there or your listeners call and they live in Illinois they should call their State Rep and say let’s change this law because it’s stupid and the Senate pass it on a bipartisan basis right it’s just it’s we got to revive it you know and that was brought up during the hearing I thought it was interesting to see uh and just for context am I correct in saying the person that was featured in the clip that that we did just play was the states legal the Attorney General Assistant Attorney General his last name is NES yeah gotcha yeah they made that uh clear uh because cuz he was trying to argue that the General Assembly knew what they were doing in 2019 and they made the conscious decision to include that language uh and I know the one of the justices asked but isn’t there some movement at the wasn’t there movement at the Senate level and um it was interesting that that exchange so okay what I also want to point out on that for whatever it’s worth is that one of the things that the Assistant Attorney General said was the General Assembly put in the language odor prooof so this therefore shows that they certainly the general assembly thinks there’s such thing as an odor-proof container um great argument in the context that it was made uh factually not you know doesn’t carry any weight in my mind I don’t think the general assembly did fact finding in that sense I think the the law enforcement Lobby wanted that in there and it got in there and no one really thought twice about it um certainly the people who voted for that probably didn’t uh realize that there’s not really such thing as an odor-proof container before they voted on it yeah and and I think the the the difference between the Cannabis Control Act and the um compassionate use Act and the language used there and the vehicle code I I think it’s just you know I think the the general assembly uh there’s a lot of bills out there and I don’t think they were aware of this conflict that they need to resolve I don’t think they knew I don’t think they did it consciously I really don’t yeah yeah well it’s saying that would be to pretend that these legislatur sat down and wrote All 600 Pages or or however long and we we know that that’s not always the case I don’t mean to paint with a broad brush but that’s not sausage making it at its highest form right um here’s an interesting point that I want to underscore and I know again this this case surrounds concerns around intoxicated driving but I think this is an interesting uh point in the case that was made um and I think it’s worth some discussion here so 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 officer 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-er prooof container and using cannabis in a vehicle so so it wouldn’t give the officer probable cause if I’m just walking down the street and I smelled like canvas to search me this court would have no reason to answer that question yes uh in eventual opinion that’s a different case that would I’m not familiar 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 so you want to take that Bob because I got a thought on that yeah yeah I mean you know PE Gott nille interjects this whole idea about okay what about outside the vehicle right and um you know uh I I think uh the attorney general concedes that point uh I don’t know Evan Maybe have more specific point than I had on it so I’ll start from the back back and go forwards the assistant AG in that argument said well the crime here is using cannabis in a vehicle but that’s maybe he misspoke but really the crime is the container and the container only does apply in a vehicle it’s under the vehicle code I think everyone agrees on that but what jusis Neville’s question hit me with for the first time I hadn’t thought about is if the AG is saying that the odor of burnt cannabis is also probable cause to search a car then it would follow that the odor of burnt cannabis setting inside a container because it’s burnt the odor of burnt cannabis should be probable caused to search someone walking down the street because you’re not allowed to smoke cannabis on the sidewalk you’re not allowed to smoke cannabis in a public place so when the AG says when the Attorney General says the odor of burnt cannabis is probably cause to search a car because you’re not allowed to smoke cannabis in a car it would then make sense that hey if cops walking down the aisle on an Amtrak train he smells burnt cannabis shouldn’t he be able to search the passenger who smells like burnt cannabis hey you’re not allowed to smoke on an Amtrak not allowed to smoke on a bus you’re not allowed to smoke in a a public library so if you really extend that argument out yeah I mean it should the the state’s argument should be that look the smell of burnt cannabis means that you’ve been using it and if you’re in a place where you can’t be using it whether it’s the inside of a car or whether it’s in a public library or you know Sports Arena then we could search you so I don’t know if anyone if any of the justices picked up on that but that is a very sweeping argument um and I think it was a really good question I’m glad it got asked right and one pertains to searches of a vehicle not really searches of a person and uh you know when you search a person obviously there’s other things uh that can that can turn up it could be additional narcotics it could be illegal narcotics or it could be a weapon that you’re not supposed to have or it could be something as um uh you know it could be some documents you have that you shouldn’t have on your person maybe a fraudulent ID there all sorts of things that can be recovered in the search yeah well said and like you say it really seems to center around the in the vehicle you C you can’t do it in a vehicle you can’t you can only do it in a house you can’t do it with a mouse you can do it with I’m sorry it’s Sam I Am uh stupid joke here I’ve got another uh clip here uh that I thought was interesting it wasn’t one that that you had timestamped um it was one about they got into a debate at the end about the strong smell versus the slight smell and I just want to play an excerpt of that moment cuz I thought it was interesting cuz again it it took me back it almost triggered some PTSD for me uh with my younger days trying to explain no it’s the Cannabis was not burnt in this place it was simply prepared um so here’s the clip is the smell of the Cannabis and the very very strong smell of cannabis is there a difference between those is the radiation 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 kmen 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 so I just thought it was interesting that that was even a a question but I can get from a Layman’s standpoint who doesn’t know the difference between burnt and raw cannabis how it could be what is the difference is there one you know yeah strong and just just the smell and the strong smell I mean I don’t think there’s any really way to rate it right I mean I remember you know this this of course speaks to my generation but you know there was there was weed and then there was skunk weed you know which really smelled that was those were the two levels of weed there was weed and then skunk uh but I don’t think that even dispensaries uh where cannabis is sold these days rap the smell of it I think uh maybe the you know INT in terms of intensity they’re obviously they rate it on uh other things that they test for that are much more uh important I suppose like thca and Etc yeah so oh go ahead there’s the idea and I think this came up with the argument a little bit that quantity of Canabis is going to translate like a perfect line you know perfect graph line for the more you have the stronger the smell is and there’s some mention about well we’re worried about the big quantities of cannabis the traffickers practically speaking if you are a drug trafficker and you’re moving pounds of cannabis you’re going to put it in a vacuum sealed bag you’re going to cover it with axle Grease You’re going to put it in two more bags you’re going to make sure it doesn’t smell the people who are getting their cars tossed for the smell of cannabis I would guess I don’t have empirical evidence but I would guess that they’re almost exclusively personal use guys who have some buds they put them in a Ziploc bag and seal it and throw it in the glove box or in the center console it’s in their pocket um the it’s an asinine idea that you know the stronger the smell the more likely it is going to be some real drug trafficker moving a large weight and a lot of times uh and Evan knows this too but in in large trafficking cases you know uh obviously you can search a a commercial vehicle we’re talking about personal vehicles that are being used to ship pounds of uh cannabis you know usually it’s not the trooper that smells anything it’s usually their dog that smells something you know and under the current law the smell by the dog also means it’s not in an odor-proof container so green light to search the entire vehicle guys yeah and I’ve interviewed several Law Enforcement Officers currently and formerly uh employed on the service I don’t know what the technical term is and they’ve all conceded to me that if such a Vice and odor-proof container did exist well their canines would be rendered ineffective and they would no longer use them but that’s not the case so it’s just interesting to hear it from the other side of the table right I mean the state troopers are saying that they’re not imprinting their dogs for cannabis anymore they’re they’re phasing them out um so I mean you know drug interdiction you know interdicting for meth retinol opioids whatever that’s still fair game I mean the only thing we’re talking about right now is whether or not an alert by a dog that’s trained in cannabis is fair when cannabis is legal yeah well said well um any any other thoughts on this I wanted to talk about next next steps and what that might look like but I just in case we didn’t touch any bases that that maybe you had uh wanted to touch regarding this case um well I mean I I don’t know if Evan agrees with me on this but based and and to the extent that you can tell the way a case is going by the questions posed by the justices I I’m not very happy about the way that whole argument went and I think that’s why I first when we first talked Cole about this uh I was U I was a little um concerned about what the actual outcome in this case and the Court’s U overemphasis of traffic safety and roadway safety I think um was not uh handled uh as well as it could have been by pointing out the distinction that Evan and I pointed out earlier with respect to um tried and tested ways of determining through field sobriety tests and others whether or not somebody’s impaired Redmond involved an individual who was not impaired Molina involved a pater where where it was the passenger who had the weed okay there was no impairment in either of those cases I don’t know why impairments an issue that’s a brilliant point that I didn’t even I think you actually did make that point when we last spoke and yeah I think that should be more at the Forefront of this conversation Evan any thoughts I regretfully believe that as long long as it remains a crime to have cannabis in a non-or prooof container that I think Molina got it right if we’re talking about the smell of rock cannabis um I don’t know how it’s very pretty unambiguous you know the it’s got to be in an not prooof container if the officer can smell raw cannabis in a vehicle there’s some cannabis in there it’s not a not prooof container and that’s setting aside whether officers are properly trained or able to distinguish between burnt and unburnt cannabis my biggest fear is that they the Supreme Court is going to they took a dumb case they they took a case where there’s burnt cannabis on one in one they took two cases burnt cannabis in one case uh unburnt cannabis in the other case container at issue in this case driving impaired to the issue in this case so so it’s going to be difficult for them to draw write coherent opinion either way what I’m worried about is that um they’re going to render some opinion that is the product of simply not having been properly educated by The Advocates about what are the issues here no one in that argument mentioned the difference between a field sobriety investigation and a vehicle search like the justices were not well served in terms of framing the issues so I’m worried that they’re going to write an opinion that is difficult to fix through simple legislation and that is going to be overly Broad and it’s going to be based on the fear of impaired drivers and it’s going to basically say regardless of the state of cannabis or container rules um because it’s a danger to drive impaired and it will always be a d it will always be illegal to drive impaired police can always search that’s what I that’s my biggest worry of the case and if they say that the odor of cannabis is probably cause to search a car setting aside the container just because it might be a DUI it’s going to be really hard to fix that through legislation so that’s my fear so on that happy note yeah well that’s actually what I was going to ask you about next steps so from what I understand you know these rulings could come out within the next three months give or take am I right on that from based on what you what you all hear um and yeah my follow-up question to that would be well if we don’t get a favorable ruling maybe then we could just bring your your law back your bill back up rather and hope hope that it gets signed into law but you’re saying that maybe if we do get an unfavorable ruling that could even become more complicated this right so damn that’s our fear that’s our fear yeah because don’t forget the Supreme Court probably has an idea of what those what the legislation would have been too because and I’m not trying to beat a dead horse but because the bill that struck the word odor proof was just it was a simple clean bill you know Pro prohibiting the odor of cannabis doesn’t serve any interest um odor prooof containers aren’t a real thing and what’s the government’s interest in prohibiting odor prooof containers this is just a trojan horse to get past the fourth amendment to search cars if if the Supreme Court writes an opinion that says no no no this is about traffic safety it’s going to be a lot harder to get the Senators and the representatives to sign onto a bill that undoes that because then everyone’s going to say you’re trying to undo this safety thing that the Supreme Court did and just politically it’s going to be uh step backwards gotcha yeah the sausage is it’s ugly watching that sausage get made yeah well um any other any other bases you want to cover in terms of what the future could could look like with it I mean ultimately we’re just waiting for ruling right and that could or could that could or could not complicate things moving forward if we want to actually substantially address this I guess what I haven’t asked yet sorry I’m kind of thinking out loud is if they ruled favorably and by that I mean in in towards the defense not towards the state um would that mean this like what what would that mean potentially well I mean what that would mean is that they would need something more than just a smell of cannabis to search a vehicle that would mean that they would need uh some other information maybe a tip that this car is traveling with cannabis uh maybe something in plain view uh maybe something in response to uh roadside questioning about where you’re coming from how long youve been on the road where you go to that kind of stuff so without without that additional uh without any other additional information the smell alone would be insufficient if if if the uh uh the prevailing parties are the defendants in this case gotcha gotcha well I think we’ve covered all of our bases on this I just have two unrelated questions uh to this to this case that just kind of were brought up through the course of this uh discussion but before I officially close this any other bases that we wanted to cover uh with regard to this Supreme Court cour case and and odor of cannabis that we haven’t discussed yet just wanted to give you the space feel like we’ve pretty much you know obvious obviously there are other interesting issues in this in this space Also and and that Al that has to do with uh the industrial hemp act and and a lot of you know a lot of THD a laden Delta 8 or Delta 9 below 3% THC I was going to ask you that I got this from a hemp store this is thca it’s just like weed you would get at a store but it’s it’s hemp so as far as hemp goes it doesn’t have to be transported in an odor-proof container obviously this isn’t part of this case but it’s just like you say it adds a layer of nuance to that this is weed smells like it smokes like it but doesn’t have to be transported like it because it has this little sticker on it yeah that true well well not just the sticker it’s it’s hemp well no but is that not cannabis it’s not because under the industrial hemp act it’s excluded as cannabis if the THC at a certain point in its growth is less than .3% and and the state has to prove I believe at trial that it has more than .3% to be cannabis and to be subject to the Cannabis Control Act and uh attorney gtra one of the attorneys you know uh Tom Howard recently came on my show and and talked about this issue because he’s a license holder and he very much sees it as competition to his business because people are literally just selling weed out of storefronts and I guess to put it in a bottle for folks that are wondering if you’ve ever made Edibles the reason you have to decarb decarb your weed is because weed in and of itself is mostly thca that’s THC and its acidic form you have to activate it by by heating it and that’s when it becomes Delta 9 THC which is illegal so so that’s an that’s a point that never got brought up at the it’s not even in the record in the either of these two appeals but you’d think that does that smell the same as weed it is weed in fact the point that Tom Howard makes they sell thca flour at the dispensary so it’s just another Wrinkle In the case if that’s legal to have and it smells like cannabis and it’s in a car then that’s another potential explanation for why an officer might smell weed right might smell the odor of cannabis say no no no you smell cannabis it’s not an odor-proof container or you smell whatever we’re calling it but it’s industrial that’s like saying I have a pet skunk in the back of my car that’s that’s another possible explanation for why you smell what you smell well and to quote the state I recently attended a and then we’ll close with my other two quick points uh the the state recently uh said and by the state I mean the Cannabis regulation oversight officer who was appointed by JB pritzer said that local law enforcement has been hesitant to deal with people that have been caught with what they claim is hemp they don’t know what to do with it so they just send them on their way and I’m just thinking that’s kind of a win for once for once police aren’t able to harass you just because you say it’s hemp you know and then they’re like oh gosh I don’t want to go to the links of having to prove that you know so yeah actually I raised it in one of my cases involving two pounds yeah it begs the question why are we doing any of this you know like what’s the point it’s like we’re because it’s a billion dollar industry for the state and because the state wants to protect its uh Revenue stream that it’s getting from the legalized sale at dispensaries that’s why Bob look at you being all reasonable and r no that’s actually one of the two things I wanted to bring up in closing so the first thing was what what uh cool meat just brought up which is I’ve asked cool meat and I think I’ve even asked you attorney Bruno like what’s the outlook on repealing the Cannabis Control Act of 1978 what’s the outlook on making things like homow legal and removing Arcane ideas of of possession limits Bob do you still feel like the chances are low because that’s a competitor to the Revenue stream big time there’s no way the general assembly is going to fall for that what about you attorney Bruno do you think the meaningful reform as you refer to it as is is seen as a uh is seen as competition to the bottom line of the state and these operators I of course yeah it would have been easier to do 10 years ago than it is now yeah yeah well my last question is about the 0.0 the point the 5 nanogram uh per se limit and I’m just curious is a legal professional what you think about this clip this is a person that was involved in drafting that law and this is what they had to say about uh the the 0.5 nanogram standard let me make sure I’m DUI correct yes yeah so this person users yep yep so here we go still an element and it continues to be major problem uh uh intoxication driving well intoxicated with cannabis cuz we don’t have a 08 nor do we have technology to even enforce that if we did have any kind of standardization so there’s no there’s no Pur limit Illinois actually has a per se limit but we literally made it up we made up the per limit it’s not based on 50 60 years of driving wall and toxicated with alcohol that we know 0.08 is the average and yet we all know somebody who’s 90 or 100 pounds who drinks one beer and can’t drive and we also know people who drink 12 packs and are just fine because the body absorbs alcohol differently same with cannabis some people that are regular users are not necessarily impaired even if they’re using quite a bit so that was a person that was in you may recognize that as State Representative Bob Morgan uh who’s been involved and as he said we literally made up the P the per se limit I’m just curious as a legal professional like do you have any thoughts on that like does that ever does that inform maybe like how you might defend individuals in the future if it’s liter just made up well I I think they borrowed it from another state actually I think it’s point0 I think it’s 0.5 in Colorado you’re correct right correct they look to other states to see how to do it the bottom line is um that you know unlike with alcohol they really haven’t done research on what it what happens to people who smoke uh and then dry they haven’t done any test like they have with alcohol alcohol impairment and uh so there needs to be uh more money put into doing that kind of research to have uh better data for implementing policy uh on these issues uh we just don’t have it yet I think I think to some extent we’re still in sort of the infancy stage of um or at least the toddler years we’re we’re still in those I think when it comes to cannabis usage and and and the INF infancy when it comes to the cases and the legal opinions out there interpreting a four-year-old statue I would also say impairment well aside from alcohol impairment is always kind of made up you know if you don’t have a prescription for Aderall but you’re pulled over and you have Aderall in your blood it’s a DUI even though no one has ever claimed that Aderall impairs one’s ability to drive it probably makes it better um impairment it’s not necessar neily about impairment it’s about setting some punishment for uh doing something naughty and driving is kind of a vehicle for enforcement that’s before that before that it was per se Evan right I5 it’s like if you had anything in your bloodstream boom it’s a DUI which also meant if you had an accident it’s a reckless homicide right and that that was true you know with cannabis it can be a month or more while it’s in your blood and there were cases like that in Champagne County fatal DUIs were no one no evidence whatsoever of any present impairment but sorry you smoked a joint two weeks ago you’re going down people there are people prisoned for that still so w it was a per se violation you didn’t have they didn’t have to prove impairment right now there’s 0 five which you know is is a light years away from from not having to prove anything right yeah well here’s an interesting question to close on that I didn’t think of until just now you’re you’re almost arguing your way out of a job by pushing to address these Lang this language are is it do you fight for this just because your heart’s in the right place or like you know because most would most people would think that after legalization the job of a cannabis defense attorney would go out the door but no you still got a lot of work to do I’m just curious what makes you want to address this language well I mean I think you can go first I hadn’t thought of that it’s kind of a softball question I’m gonna back off I’m gonna back off on all this now no it’s I yeah it might not be it might be in my interest that more people get pulled over and get their cars searched and they find guns and drugs but um at some point you got to kind of focus on the bigger picture and try to do the right thing uh I’ll still have cases there’ll still be crimes um but when I go to bed at night I’m happier knowing that I try to do something towards the the right thing then maybe that I miss out on a couple cases yeah pretty well said huh Co me anything to add before we close cool I don’t all I mean you know we we we we try to fight as defense lawyers for what’s fair you know and uh it just seems to be able to legally purchase something and then be subject to search because you legally purchase something which is in a container that’s not really odor proof that’s unfair and that should be changed yep well folks um I hope you found as much value in this conversation as I did I think Bruno and gtra are two names that you want to keep in the back of your mind uh if you choose to use cannabis at all in the state of Illinois judging off the nuances uh that that were discussed in today’s conversation um take care everybody and we’ll see you on the next episode