The Cole Memo

In this episode of The Cole Memo, Cole Preston breaks down the Illinois Supreme Court’s landmark decision that the smell of burnt cannabis is no longer enough for police to search a vehicle. Joined by criminal defense attorneys Evan Bruno and Bob Galhotra, the trio dives deep into the implications of this ruling, the key legal distinctions between burnt and raw cannabis odors, and what remains unresolved with the upcoming Molina case.

Tune in as they explore the ripple effects this decision may have on law enforcement discretion, public policy, and how cannabis-using adults in Illinois navigate these laws.

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Links mentioned during show

• You can watch my MiniDoc here
• Illinois Supreme Court: Burnt Cannabis Odor Insufficient for Search, Unburnt Odor Decision to Come
• Legal weed’s first year in Chicago: High arrest rates for Black people, a boutique experience for others
• University of Illinois: Arrests for cannabis continue in Illinois
• Episode 49 – Defense Attorneys Discuss Cannabis Odor & Illinois Supreme Court Case
• Episode 47 – Illinois Supreme Court Debates Searches Based Solely on Cannabis Smell

The auto-generated transcript is available below.

in today’s episode we’ll be talking about the smell that comes from smoking marijuana is not enough probable cause for police to search a vehicle the Illinois Supreme Court rules in what now becomes the law of the land of Lincoln Police will not be allowed to search a vehicle based solely on the smell of burnt cannabis the Illinois Supreme Court made that ruling yesterday citing the changes in the state’s cannabis law which was legalized uh nearly 5 years ago to do that I’ll be joined by legal experts that are refined in the details of this case it may go without saying but nothing in today’s episode should be constituted as legal advice enjoy the episode I’m Cole Preston and today I’m at Blue Island beer company for the premiere of my mini documentary on legalization policy in Illinois even I’m not even us [Music] to I’ve been following cannabis policy since colorful Colorado legalized it all the way back in the day and when my home state of Illinois decided to legalize it I just became an amor I wondered what would it actually look [Music] like if you’d like to see how Illinois fell short in achieving meaningful reform in their cannabis policy you can watch my mini do now at Co memo.com Min do [Music] all right thank you folks for tuning in to the Cole memo have you been seeing all of the smoke around the Illinois Supreme Court’s ruling on the odor of burnt cannabis today we’ll be breaking down how we got here what the decision means and of course the big the big picture thing is the fact that there are some questions that remain and future rulings could still shift policy and the discretion that law enforcement has in interactions that that we have with them to help us understand I’m joined by two legal experts attorney Bruno welcome back to the show can you please introduce yourself to my audience thanks Cole I’m Evan Bruno I’m with Bruno law offices in Urbana Illinois where I specialize in criminal defense including cannabis cases you can find us at Bruno law offices for any criminal or traffic cases and this is kind of a pet interest of mine so happy to be here thanks for having me back yeah and attorney Bob galra thank you for joining me back on the show please introduce yourself to my audience hi Cole thanks for having me back I’m Bob Galhotra from Galhotra law I specialize in criminal defense law I’ve been a Cook County lawyer uh for 34 years and for the last four years I’ve been going to other parts of the state as well I’m also a Advocate adjunct faculty member at Chicago Kent College of Law well I want to thank you both for your time and uh more importantly for what you do attorney Bruno do you want to kick us off with a recap of how we got to where we are today and what we’re even talking about sure thanks so the question the big question here is when an officer smells cannabis in a motor vehicle can the officer search the vehicle based on the smell of cannabis that’s a very big question and then that question kind of can get broken down into smaller questions within questions which is what I we’re going to talk about today with this new Supreme Court case just zooming out even further the fourth amendment protects people from unreasonable searches and seizures it’s been long held throughout the entire United States from a Supreme Court decision that a vehicle is special because they’re they can move around and they’re often police police often encounter vehicles on the roadway when they can be moved uh the Supreme Court held long ago that the police don’t need a warrant to search your vehicle all they need is probable cause if it’s your home they need probable cause and then they need to take the probable cause to a judge and get a warrant to search your house the warrant doesn’t apply to Vehicles so police can search Vehicles if they have problem cause what is problem cause it’s basically a good reason to think that there’s evidence of a crime inside whatever they want to search and so if it’s your vehicle the police need some good reason to think that if they search vehicle they’ll find evidence of crime so that’s a basic overview back before 2013 and this is laid out in the Supreme Court’s recent case of Redmond that we’re going to talk about today back before 2013 there was no such thing as any legal cannabis in Illinois and so it was very simple if the police officer smells cannabis whether it’s burnt raw whatever uh that’s enough reason to think that there might be evidence of a cannabis crime in your car and so the police can search without a warrant and they can just talk your card 2013 Illinois became a medical cannabis State and so that question became a little murkier if an officer smells cannabis in a vehicle is that good reason to think that a crime has been committed maybe the person has lawfully used or possessed cannabis so the question became a little murkier then fast forward to uh legalization and uh we now have this question of can if an officer smells cannabis uh is that good reason to think that the person’s committed a crime when marijuana was recently legalized I say recently but it’s been a few years now the bill was passed in 2019 went into effect January 1st of 2020 at that same time the legislature added a new rule to the vehicle code that makes it a crime to transport cannabis in a vehicle not in an odor-proof container so if an officer smells cannabis in your vehicle I’m oversimplifying but if an officer the Theory goes if an officer smells cannabis in your motor vehicle the only reason he could smell that is if it is not in an odor-proof container which would be a criminal offense so the officer can search the vehicle for evidence of the crime of having the Cannabis in the wrong container side note that odor-proof language was added at the behests of the sheriff’s Association law enforcement Lobby essentially because God forbid the legalization of cannabis took away the tool to allow officers to search Vehicles based on the smell of canvas because that is uh that gets the smell of cannabis has gotten a lot of police into a lot of cars and so they didn’t want to lose that tool so they added the odor prooof language now now is where the question kind of splits into two if an officer smells cannabis coming from a motor vehicle as the driver rolls down the window on the side of the road there’s now this question of well if you smell burnt cannabis meaning maybe your jacket smells of burnt cannabis or the interior of the car smells of burnt cannabis well that’s not this The Logical syllogism doesn’t necessarily work now that it must you must have cannabis that’s not in a notor prooof container because the officer theoretically is smelling the shadow of cannabis cannabis is gone there’s no cannabis in the car the officer is smelling smoke essentially uh the smell of burnt cannabis and so therefore uh it’s not necessarily probable cause to get into the car when the Supreme Court took up this question they accepted two cases for review one was a case out of the fourth district called Molina the the other one was a case uh the case that they just decided the other day called Redmond and that was out of the second or third District it was out of the third third thanks Bob so it Redmond from go had to do with burnt cannabis the officer said I smell burnt cannabis and the guy was nervous and he was in a he was coming from De Moine which is apparently a high crime City according to the cop um obviously that’s the reputation everyone thinks of when they think of De Mo they think of this high crime area that’s sarcasm uh but then also he’s in a drug the guy’s driving on a drug Corridor and by that he meant Interstate 80 which is one of the busiest roads in the whole state uh and so he searched the car but primarily based on the smell of burnt cannabis the other case Molina was a case where the officer said I smell raw cannabis and the appell court Molina said that’s okay to search because if it’s raw cannabis that you’re smelling then it must be giving off an odor that you can detect and if you can detect the odor it’s not an odor-proof container so you can search and Redmond the Appel Court said the odor of burnt cannabis is not enough these other factors that the officer pointed to not enough invalid search in Redmond based on burnt cannabis fourth district Appel Court said valid search in m based on Raw cannabis because it must not be in an odor-proof container the Supreme Court took both those cases to review at the same time they heard oral arguments in one sitting for both cases and the Illinois Supreme Court released its decision just a few days ago in Redmond the burnt cannabis case and said smell of burnt cannabis alone is not sufficient probable cost to search a car and and they got there by basically saying that this cop in Redmond this other stuff he pointed to the guy was nervous he was coming from De Mo that that that’s not enough to get you into the problem cause territory and uh now we await the decision of Molina and we’ll get into this a little bit later but theoretically the Supreme Court’s going to couch that one in terms of the odor of bra cannabis and we’ll have to wait and see what they say in that case so that’s kind of how we got here I left a lot of important stuff out but I think for purposes of this conversation that kind of gets us to where we need to be to start our discussion on this topic yeah and Bob I’ll pass it over to you if you have something to say but I just want to say I’m really glad we’re having this conversation because you know there was some early reporting on this issue that caused a lot of people to celebrate I think a bit prematurely um they thought both of these issues were being addressed when uh attorney gohra you’re about to probably make clear uh the Supreme Court made very clear in their ruling that they would be uh ruling on the Molina case separately um so I’m glad that we can come together to have this fact based discussion because Frank I think we’re dealing with enough confusion and apathy around cannabis policy and and of itself something we talked about last time I’m like how can we get energy behind homegrown stuff like this because people are just like it’s legal what’s the big deal you know so we’re dealing with enough enough apathy so I think it’s important to like I say make it clear what they’ve ruled on and what they haven’t ruled on with that pass it over to you attorney Gyra anything to add or take from there yeah yeah thanks Cole you know as uh Evan Evan gave a really great background history of of the Cannabis law and how the fourth amendment applies to vehicle searches and um the Supreme Court seems to have gone ahead and continued with this dichotomy between burnt cannabis and raw cannabis you know Redman did involve burnt cannabis but I have this section regarding the actual observations regarding that in the case and I’m quoting from paragraphs 8 and nine and here as this was the testimony that came out at the hearing on the motion to suppress when Colmes the the officer approached he smelled the odor of burnt cannabis emitting from the vehicle during the states examination Colmes testified that the odor was very strong he also testified he asked Redmond the defendant about the odor and Redmond denied having smoked cannabis in the vehicle his examination the vehicle didn’t reveal anything that was lit or currently emitting an odor of cannabis from the vehicle so nothing smoking Colmes was also agreed that he did not see any cannabis in plain view comes had Redmond come out of the vehicle seated him in the squad car and then comes could still smell the odor of burnt cannabis in the vehicle but he couldn’t recall smelling the odor of burnt cannabis on Redmond’s person and comes admitted he saw no signs of Redmond being impaired so Redmond didn’t look stoned he couldn’t find any pipes or any spit joint or anything like that the car smelled of burnt cannabis but he couldn’t tell whether it was coming from him or the car or what and then uh they find raw cannabis in here you know I mean the arrest is for raw cannabis so the judge rules that you know this is not reasonable uh this is not problem cost to search the vehicle and find the raw cannabis and find um uh and charge somebody for possession of cannabis uh in a motor vehicle so it’s suppressed and the Supreme Court as you know as Evan just explained uh said that that under the totality of the circumstances the smell alone is not enough and the other reasons the officer gave weren’t very good either but having said that they made it very clear that um they weren’t talking about raw cannabis and there’s a particular footnote where they bring out in Redmond the Supreme Court says we are uh yeah I I think that’s it Redmond does not contest the validity of the odor-proof container requirement in Molina uh a case dealing with an officer’s detection of the odor of raw cannabis coming from a vehicle we address the validity of the odor proof container requirement so here we go putting on our C uh getting my crystal ball out and speculating on what the Supreme Court’s going to do one what it could do is it could go along with the argument that was presented by the uh defendants by the appes in the uh Molina case because they won below but the appell Court Justice stigman reversed the motion to suppress and there they argue that when they amended the Cannabis Control Act and the compassionate use of medical cannabis the medical act when they did that they implicitly had to have taken out the odor prooof requirement because it’s just not consistent they could read that into the law but I really really doubt it a lot of times what the Supreme Court will do is say hey legislature this is the way you wrote the law you know it’s on you to change it we’re just interpreting what you wrote V and that really is sort of the gist I think of the appell at court in the forth district and the way they presented it in Molina um you know Justice stigman says that an officer who smells cannabis in a vehicle he has just stopped is almost certain to discover a violation of the vehicle code that provision that says it has to be in an odor-proof container because the law clearly states that when cannabis is transported Ed in a private vehicle the Cannabis must be stored in a sealed odor-proof container in other words the Cannabis should be undetectable by smell by a police officer so those are the two possibilities that I’m seeing either they’ve gotta say hey legislature it’s on you go ahead and change that part right or uh they’re going to have to say that you know we’re going to read into the law that this odor prooof requirement is uh not really availing and one of the problems was in Sagan’s opinion he uh you know he not only agreed that the statute itself still required it to be odor prooof and it was still on the books but he also said the judge went out of his way to to you know say well it could have been this or it could have been that it could have been a guy that works at a cultivation Center and so now he smells like raw and he also kind of posited the you know the theory that you know there’s a lot of ways that people could could smell um you know there he he basically went out and considered things that were never presented in testimony at the hearing so it could be the Supreme Court will give a green light to hey based on this record we can’t do it but why don’t you guys go out there and put some experts on and have them testify we’re not telling you what to do but if we had facts in front of us maybe we would look at this differently so uh and you know there is a big economic aspect to this of course because uh it’s a it’s a u multi-million dollar industry in the state of Illinois and if there are large large amounts of raw cannabis being transported on the interstate highways you know the government wants to and I think the Judiciary is going to allow the government to have some say in control over that the interesting thing is this applies to passenger vehicles so we’re not talking about large semi-trucks loaded with weed where they really don’t kind of expectations like that you know you can’t put a dog on it they’re not allowed to have any of that kind of stuff it’s some of the laws are different on on Commercial transport but but this is going to affect private movement of cannabis among states as well and you know small scale stuff yeah yeah um attorney Bruno did you have anything to add on that I I I totally agree with what Bob said it’s uh I could not have better articulated I think the possibilities as to what the Supreme Court might say in the Molina on the odor-proof container requirement I think the most likely thing they’re going to do is affirm the fourth District’s decision where it said we’re talking raw cannabis and you can smell it it’s not an OD prooof container that’s easy I don’t think they’re going to bend over backwards to uh make it easier for people to transport cannabis or kind of interpret the implicit overruling of the odor-proof container requirement it’s not like that’s some ancient law that’s been around since the 20s and that people forgot about and then they legalize cannabis this is a new law that was passed alongside the legalization of cannabis you got to if you’re the Supreme Court you have to assume that the legislature knew what it was doing when they chose to put the word odor prooof in uh the law uh so I think that kind of sets us up right now for this the tale of two cases here is raw cannabis versus burnt cannabis my hope when they took these cases is that this wouldn’t all hinge on some cop saying trust me I smell raw cannabis or trust me I smelled burnt cannabis but just looking at Redmond you know the I think it’s maybe the first uh yeah so the very first sentence of Redmond whether a police officer’s detection of the odor of burnt cannabis uh is probable cause and they could not be more clear throughout this opinion that we’re talking about burnt cannabis here we’re not talking about cannabis so just looking at half the picture here just looking at this one opinion and not the other opinion I don’t know how they could possibly now decide Molina and saying Molina well you know it’s kind of not really reliable to have cops making the distinction between burnt cannabis and raw cannabis they clearly based on Redmond think that police are equipped and can be trusted to to testify accurately about whether the smell that they smelled was burnt cannabis or whether it was raw cannabis so they’re kind of just saying you know if a cop says he smelled burnt cannabis or if a cop says he smelled raw cannabis we’ll just take that at face value and proceed accordingly which I think is I think that’s gonna problem and it’s kind of silly because when you look at the facts in redond right I mean the cop is smelling uh burnt cannabis but they discover raw cannabis right and no roaches you know so I mean how reliable is that you know either um but yeah I definitely they’re going down two different roads now um and what I was thinking about Bob and you might have some thoughts on this is uh I’m kind of fast forwarding to a potential hearing on a motion to suppress evidence and the question asked the officer is uh you know can you a series of questions aimed at can you describe the difference in odor between burnt and raw uh what day was it at the Academy where they gave you training on the difference between the smell of burnt and raw do you personally smoke canvas do you have what are you how have you been taught a smell who taught you what smells you know what the smell is burnt and what the smell of raw and if I was a if I was running uh the police academy or if I was making sure that my uh deputies were up to speed and well trained and well prepared to uh justify their searches I’d probably start having sessions where we burn some cannabis and everyone gets to smell it and then we take some raw cannabis and everyone gets to smell it maybe they do that now but what it looks like the Supreme Court is setting up here is it’s now going to be critically important in any cannabis odor search case for the cop to be able to persuasively tell the judge no no I smell I smell raw cannabis and I know the difference yeah yeah just fra because you can’t capture that on a body cam video it’s you know it’s uh one of these things where it’s usually just a trust me I know the difference judge and I want to pass it over to you Bob but to that point you know just to illustrate it a little bit maybe for listeners that don’t understand you know with other crimes let’s say I I got into an altercation on the motor I’m going to give you an extreme example I got into an altercation which ended up with me uh throwing somebody at another’s another person’s vehicle so not only do they have this on footage but they have like Photo evidence of the damage I did to their car these are things you can bring into the courtroom and prove your case even though you may not have seen it for yourself you can’t really pull a vehicle into the courtroom and have the jury come over and be like or you know what the judge I guess it’s just not like a replicable if for lack of better words uh crime you know like you said it’s not it’s not something that you can demonstrate like photograph or you know showing a video or playing a tape or even showing some sort of scientific measurement you know like a year analysis indicating the level of alcohol or something like that there’s no objective really way of doing it unfortunately in some districts there are cases which hold that uh um probable cause I’m quoting from people versus Williams the 2013 case um based on the sense of smell may not be as as those were probable causes based on what’s visually observed those involving quote an individual sense of smell can be the most persuasive character particularly in cases involving cannabis and uh that was a little quotation from the people versus hill case and um you know Hill was another Supreme Court opinion that was the one that came out after medical um the medical Act was approved and after decriminalization but before it was legalized recreationally um so there was you know there was this Stout case which had to do with the smell of uh cannabis burnt cannabis and then there was also Hill which had to do with the smell of cannabis as well and in in Hill I think they found cannabis and uh and cocaine during the search a small amount not a large and that’s a small point I want to try to do a brief recap of where we stand right now but that’s a small point I wanted to just make as well um you just pointed out you know Illinois decriminalized in 2016 Evan an example you had given me in the past is like if for example I had this joint and it wasn’t half smoked it was a full joint and I had it in my front pocket then it would have been hey Cole it’s a decriminalize that that’s a citable offense what are you doing $100 to $200 citation get out of here you know um but now it’s if I have a joint in my front pocket or just not in an odor-proof container it is a class A misdemeanor with up to a year uh in jail and prison possibly and fines you know am I correct on that like in the year up to 364 days in jail yeah yeah so just one more example of it’s in a lot of ways easier to get in trouble for cannabis now than it was before they legalized it so another if this is a good time just another thing that’s actually just occurring to me right now is the how how problematic it is to draw this very important legal legal distinction between the odor of burnt cannabis and raw cannabis burnt cannabis is uh almost a little old school a lot of people who use cannabis now use a vape pen or a vaporizer that doesn’t burn it with fire and it might also have some blueberry flavor in it and the smells we it’s not this binary one smell and then another smell there’s kind of a Continuum there and so if someone’s driving down the road uh you know and they hit a resin vape pen that doesn’t have flavor in it I’m going It might smell exactly like raw cannabis uh and so it’s just the it it’s when I said before this came out I’m worried they’re going to screw this all up this is kind of what I was worried about this kind of naive Foundation upon which they’re building this important Fourth Amendment decision and it’s just this idea that not only is there there’s only two two cannabis smells that can can exist burnt and raw and then the silliness of thinking that you know Joe Deputy from some rural County on the interst you know and some the side of the road’s going to be able to tell the difference um it it’s just seems like it’s shortsighted and uh one of the problems is that the the Supreme Court took a case that didn’t have really good evidence presented in the trial court for either case I don’t think uh this might have been a case where the Supreme Court should have said that’s an interesting issue fourth district and second district um we’re going to sit back and wait and see a little bit more maybe some clever lawyer out there will actually call in an expert uh make a record at a motion of press hearing and then we’ll be able to actually have some real science or some real facts to make our decision on um but they’ve kind of been underserved I think and and I don’t want to throw any shade on the on the lawyers involved at the lower level I mean usually you’re not it’s anticipating that the Supreme Court’s going to decide your case when you’re at the trial court level but uh it would have been really nice to see some expert testimony in one of these cases it could be even be someone who sells uh you know who works at a um dispensary a dispensary and says look I I spend all day every day at a dispensary I’m also a personal user I’m familiar with all of our products and the packaging and you know ask questions and make a record of the fact that you know you can buy this stuff in the store packaging fresh off the shelf and it still smells uh you you know there vape pens that burn or vaporize at a very low heat so it does you know there’s not like the smokiness Incorporated in so it’s kind of indistinguishable but they went a different route and kind of looked at this as much more simple so yeah very very and I think it’s always important to understand to to your point I wish that one of the you know I don’t know how Poss this is probably not possible in the court process but it’s like let’s take a field trip let’s go to a dispensary we don’t even have to buy anything let’s just step inside and you will smell you will smell the Cannabis and I think an important point that actually not a lot of people know even like a lot of cannabis users that listen to this show um they’re not packing that stuff in the dispensary it comes prepacked which means that it comes in containers that are not odor prooof I mean that’s just that’s just a right right universally too not like one out of 10 packages you can smell but all of them are non order prooof I’ve interviewed K9 officers on this show that worked in the border and also just in in the State uh there’s no such thing as odor-proof container you can you can Google it and don’t get me wrong there are certain containers that do a better job of mitigating smells um but ultimately a canine um there’s just no such thing as odor prooof you know and I think that’s that’s a big big issue with this I I think there’s actually an opinion from the forth District that says that well it wasn’t an odor-proof container because the dog the canine smelled it literally I mean not even like human smell yeah I mean it’s even gone to the level of if a dog can smell it it’s not in an odor-proof container right right exactly now I wanted to just ask you both because we kind of got into it and I just wanted to recap you know as we stated this these cases were Consolidated the Chicago Tribune uh reported in a somewhat unusual move the court Consolidated two cases with opposite appalling rulings on the issue then severed them for its rulings so we’ve kind of we’ve established that is it is it our speculation that you you know they’ve they’ve ruled that the smell of burnt cannabis cannot be used in and of itself um but are we thinking that we’re not going to see a let’s call it a favorable ruling with regard to the odor-proof container in other words do you think they’re going to say the law is clear the legislature wrote it the way they did and and this is it and I think a more interesting question Cole is whether they’ll issue that opinion before the legislature wraps up its legislative session because I think uh Sen Venturas Bill may still be pending which I think changes the odor proof requirement am I right on that Evan I don’t know what the status of that bill is but yeah but I I think there may be some Bill still pending that changed the O uh odor proof requirement in the vehicle code which would be the quickest easiest solution to um to the Molina case and it would it would resolve the whole Molina issue yeah I agree and to your point Evan I am not exactly sure where it stands right now um but to uh to your point as well Bob it was in House Bill 2911 and it aimed to remove the odor-proof container it had just Struck it from the law I believe Evan you helped you were instrumental in creating that language um however Jim kek representative of the Illinois sheriff’s Association opposed this changed arguing it would weaken enforcement efforts and to address those concerns uh leader lightford it was in her bill at the time she ultimately took it out of her bill um but I do recall a statement being made that hey it’s in the Supreme Court right now and depending on what that ruling is then we can take action so that’s my hopeful Silver Lining that if if it doesn’t go our way like you just said attorney gohra maybe the uh General Assembly takes the ball and puts it in the Zone to use the sports analogy um I don’t know if it it might have been Alexander Hamilton who when they proposed the Fourth Amendment said you know this is going to weaken enforcement efforts well yeah it’s called privacy it’s called it’s called freedom from searches that shouldn’t be made because they’re unreasonable but uh point taken yeah yeah there’s a lot of things that uh weaken enforcement efforts in the name of uh not letting the government search for ever it wants for no good reason so yeah and not and not to mention that you know in the spirit of some of the amicus briefs that were filed in the Redmond case there’s a lot of black and brown people that get pulled over for this for no reason sometimes if this is not a good reason why are those folks getting pulled over I mean there’s just a uh statistically there’s a demographic that gets pulled over for these types of offenses not to mention and I’m beating a a a dead horse here I’ve mentioned this every time I’ve this topics ever come up but it’s such a perverted rule in and of itself just on its face that it’s a law in Illinois that under penalty of pris imprisonment you must conceal from law enforcement the odor of cannabis in your vehicle if you don’t conceal it from the cops and hide it from their detection you’re a criminal it just reveals how this is not an any way shape or form aimed at Public Safety it’s purely a trojan horse to allow the police to search your car if it was aimed at safety if they really cared about safety they would say you can’t put cannabis in an odor prooof container it must be in a container that’s not odor-proof because we need cops based on the totality of circumstances to be able to detect it but with their nose and so we’re all better off at least if the cops can know if it’s there but this do this Sneaky Snake of a law says no if we can detect it it’s a crime you got to hide it from us and they know that no one is going to be able to do that so right uh it’s really Shameless and it’s just so disappointing to see how just just seeing seeing the folding that takes place whenever uh this odor prooof container rule is proposed to be removed well the sheriff’s Association said that it’s going to hamper enforcement effort so we just got to take them at their word and um move on yeah if folks want to see that’s my soap it’s okay yeah folks want to see that moment I’ll have it linked in the show notes um you know it’s really a two-pronged effort to your point Evan it is uh you know there’s a profit motive for these cops to keep that skeleton key it’s called civil asset forfeiture and it’s freaking awesome uh for them I I’m being sarcastic when I say that I hope that my listen know that did want to make that clear though and then to attorney galra’s Point there’s another prong to this profit motive which is to keep uh what they consider to be the illicit Market at Bay and it seems like this is the only way they know how it’s funny you know there’s still I don’t know if you knew this there’s still an illicit market for basic Staples like milk and eggs it makes me question whether or not um it’s even possible you know you want it to make it possible I don’t know if you both you know I know you’re both on the kind of Criminal Justice side of this issue a lot but you know if they want people to participate in the market they should make it irresistible to not participate in the market and by that I mean if you look at States like Michigan like you’re silly if you don’t participate in the market because it’s just so easy and yes the prices are lower and competition is fierce but if if your goal like you said uh earlier attorney Bruno is to um um you know reduce unlicensed activity and and you know crime then making participation in the market irresistible I think is key to those efforts you know we have these issues with hemp right now right where people are like Sid stepping trying to sell hemp and it’s because they can’t do it legally oftentimes they can’t get the coveted license I know that’s a topic for another show but um it’s again I think it just lends itself to there are several profit motives I think at play that that keep particularly this issue um at Bay oh sure absolutely yeah yeah I thought what you mentioned uh earlier turnning go HRA that you know the the uh economic interest of making sure large quantities of cannabis were not being transported was really an interesting one you know I never really thought about that element of it and I I I know that we were we’ve mostly been focusing on the Molina case but I think it’s important and I wanted to ask you about this you know the court did caution in the Redmond case according to the Chicago Tribune the police can still consider the smell of burnt cannabis and this I think seems reasonable actually uh can still consider the smell of burnt marijuana as part of the general circumstances that may justify a search in other words if you’re you know speeding and you’ve got a joint on the center console and they smell like burnt they smell burnt cannabis like these are there’s a lot of circumstances sure and you got bloodshot eyes and they’re red and you’ve got dry mouth and you’re speeding yeah you’re going to get a DUI no doubt and there’s going to be probable cause for that because under the totality or you know uh you’ve got you know if if if it’s um uh if it’s somebody who’s saying they traveled to California three days before just to go see the West Coast you know for a little vacation uh and then they have uh one-way tickets sitting around uh in the car you know if there’s other circumstances the interview that that indicate that you know give you rise to probable cause to search definitely they the you know but in this case in Redmond what they heard wasn’t enough and was easy easily explained I think he had been going back and forth to De Mo uh during the pandemic and I think there was some issue about residency it was resolved in the defendant’s favor so but like with the redond case just like a small point that I want to like just I’m asking this so that people can be careful because people I think this is important with with there being these like hard lines that if as Evan Bruno calls it the the tight RPP right um if you’re not on the tight RPP then you can still get in trouble this Redman got pulled over for going 73 can they use you speeding in addition to the smell of burnt cannabis like that that’s right right like like yeah it was a see in this case I don’t think the stop was really the problem okay there was reasonable susp the issue is whether or not there was probable cause to search that was the issue in redond and the Supreme and the Supreme Court wound up affirming the appell court which wound up affirming the trial court in that this was not an enough to form probable cause the fact that the guy lived in De Mo the fact that his license plate was a little tinkered that he was doing 73 miles an hour and that you know he didn’t have his driver’s license but on him but when they ran his name the driver’s license was valid right so all that stuff checked out and I I would have been I mean it would have been the most revolutionary case ever if the Supreme Court had said you cannot consider the odor of cannab of burnt cannabis as part of problem cause I don’t think there’s anything that a court has ever said you cannot consider maybe you can’t consider someone’s race or religion maybe something you know very taboo like that that’s protected by the Constitution but the whole idea of totality of the circumstances is you can consider anything you know if if the guy smells like cotton can candy and you know the officer knows that there was that there’s a you know local gang that operates out of the cotton candy factory I mean you can consider the smell of cotton candy there’s nothing you can’t consider uh but what this does why this opinion overall is a good opinion I think but I’m scared of what’s going to come with Molina but just looking at this in a vacuum this is a good opinion because before this opinion the prevailing uh idea you know the prevailing law I guess was out just the odor of cannabis just the odor of burnt cannabis is enough so you could be you know a have zero factors that Ro that raised suspicion you know assuming that the stop is legit maybe you’re going 71 in a 70 and you’re pulled over and it’s a old lady going to church never been in trouble in her life everything’s up to Snuff on the car plates are good registrations good but if they smell the order of burnt cannabis that was enough before this case and so this is important I don’t want to diminish it and I had a lawyer friends say to me well they’re just going to find they’re just going to find reasons now to get into the car anyway that might be true but what this opinion does now is say those other reasons have to go through a judge and the judge has to say that’s enough under the totality of the circumstances to constitute problem cause and this Redmond case itself is a perfect example the other reasons that the cop pointed to here was well he’s coming from De Moine and he didn’t have his driver’s license on him and his license plate was crooked and you know he seemed nervous now with this decision a judge gets to hear all that and say and not so fast those are not enough to bring you up into the probable cause territory so it’s an important opinion it’s just like it’s the Callum before the storm because I’m now worried about what they’re going to say about raw cannabis and I think it might you know in theory this is good but now we have this distinction between raw and burnt that I feel like is going to be unworkable in a lot of ways on the ground yeah any uh thoughts on that attorney gool TR well I’m just looking at the anticipated filings so the next one’s October 3D and uh they haven’t posted yet so I’m just hoping that at least on October 3rd or the 18th the next two anticipated dates for filings that they announce the uh Molina decisions coming yeah I do too um and I believe the legislature returns for veto session in November so yeah if it happened in October um I do hear it’s can be hard to pass things in veto session especially if something like this which has just been struck from the law uh Struck from a bill rather um they would have to pass it back through the house and the Senate um but maybe they would have the motivation to do that if we had a ruling that you know settled this issue and and made it so that they needed to address it let’s hope that’s not the case and that the general assembly doesn’t need to address it but I don’t think either I don’t think anybody on the today’s call is feeling optimistic that that’s going to be the case am I right I don’t think they’re I mean it just it requires people to to pick up their phone uh and call their state senators and their state legislators if the Supreme Court doesn’t act the way uh they want it to um or rule the way they they would like it to rule right now I will say on that I’m worried about what the Supreme Court’s going to say in Molina I guess I’m worried just in general about this setup burnt versus Raw but when when the Supreme Court makes a cannabis decision that has Fourth Amendment implications that does get the Chicago Tribune to write about it local newspapers write about it and uh I you know I don’t really trust reporters to get legal stories right most of the time but if you got the Redmond decision one week and the Molina decision a few weeks later they’re going to have to explain yep well okay so what what the hell did the Supreme Court say here and I’m guessing 99.9% of illinoisans have no idea that there’s this odor-proof container law but this will at least you know someone’s going to to read the opinion and maybe a reporter is going to call a local lawyer and say can you walk me through this but if the average Joe out there says wait wait wait you’re telling me that it has to be in an odor-proof container what’s the point of that and now I can get my car searched for if I have weed because it’s not an odor-proof container and what about all those times I’ve gone to the dispensary and bought a pre-rolled joint and my whole car smells this is no good and then that that’s where the phone calls to the state senator and the State Rep come in that Bob was talking about so the Silver Lining here my hope is that even if they do assuming they do affirm the fourth district at least that will give a boost to this issue that couldn’t come from anywhere else yeah yeah because I don’t see how any Average Joe out there agrees with this oder prooof container law right anyone who who’s I can see some people think marijuana should have remained illegal and there should be no quarter for marijuana users but if you’re a somewhat reasonable person I don’t know how you can think that this is a good rule maybe just sell bags that say odor proof on them so people can have a good faith basis to believe they were odor prooof even if they’re not right right maybe yeah and then the cops have a good faith exception to search your car anyway so yeah um you yeah and you know Evan uh I’m sure Evan agrees with me Cole we haven’t said this before but we don’t we are not giving legal advice at this time uh the law is a very special thing that requires sitting down with a client and talking so please don’t take any of the things we’re saying as advice legally in your own particular case because I guarantee it’ll be different than what we’re talking about yeah and I’ll make sure to put a disclaimer at the beginning of this episode so that’s very clear and you know one of the points you’ve made in the past on the show to some people you know that may not care about this issue or that may not even be aware of this issue sometimes people might ask you know how hard is it just to follow the rules which has always been the case as you said how hard is it just to not possess cannabis you know how hard is it just to not use it it’s like this this is a nonviolent crime and it right now it is a crime and that’s the problem you know what I mean um so um yeah um any other thoughts on this I had a few questions for you just off uh you know just generally speaking before we close um but any other topics on this Supreme Court ruling any bases we hadn’t really touched yet no I mean there was only one thing but I don’t know if this is the right time to talk about it Evan I’m curious if you know why would Justice holder white not be a part of it when she’s quoted taking questions and asking them at the oral argument what’s that all about that’s a really good question I hadn’t thought about that she was she was in the on the argument yeah but she took no part in the decision I don’t understand that that is a very good point I I just totally glossed over that yeah she was there asking questions yeah so what is this maybe I mean maybe it was revealed that I mean she came from the fourth district so she wouldn’t even have been possibly involved with any of these players before she got on the Supreme Court right Redmond’s a Third District case yeah so maybe um maybe she found out that someone involved was a prior you mean disqualification she she recused herself it would it doesn’t explain that at all it’s not like she’s out sick right I mean I I don’t know I I just thought that was curious that is very curious I I hadn’t even noticed that until you pointed out yeah so that is interesting very interesting what were you gonna ask Cole oh um you know I just uh the again these kind of questions were uh you know a little bit you know not so much focused on the topic uh this particular topic we did just kind of I did just bring this up and I guess I wanted to just ask you both both you know aside from this crime which I’ve heard uh you both have experience with I’ve interviewed people that have been charged with this crime of uh not having an odor-proof container if folks want to listen to it you can go to the coal memo.com isit legal it includes other people that have been affected by uh the continued criminalization of cannabis in Illinois you can hear their stories um I guess I just wanted to ask you you know aside from this particular part of the law are there other ways that you continue to see people G getting charged with uh you know first and foremost I’m thinking nonviolent cannabis related crimes like cultivation of cannabis for example I know that’s not legal for everybody um but also just like what you know do you represent a lot of people with the drug war so it’s kind of a two just drugs in general do you see a lot of drug related crimes in in general um just simple possession and stuff and so I guess that’s my it’s a little bit of a two-fold question you know how do you see people do you see people getting charged with cannabis crimes still and then also just kind of a general curiosity about the drug war in and of itself in Illinois Bob you know it it varies from County to County that’s for sure some counties uh which um have interstates flowing through them like I 80 or 39 or nope did we lose Bob either that or he’s just being very still yeah I think we may have lost Bob [Music] um well yeah if you want to take over my answer to your question was I I you know fortunately I don’t see a lot of people charged with cannabis see it sometimes usually people have pounds uh but I still all the time see people having their cars searched for it for the smell so this the issue we’ve been talking about today is fresh and relevant um there’s a reason why the you know Illinois sheriff’s Association cares so much about this because the smell of cannabis is like the skeleton key that gets cops into cars probably more than any other probable cause Factor uh but most prosecutors you talk to nowadays just say it ain’t worth the trouble to go after people for small possession even if it’s you know a little bit over the limit or we just not it doesn’t have the payoff for us um but I’m sure there’s some counties where if a you know people get messed with and harassed and um for those people it is very real was still a very big problem yeah you back yeah sorry sorry guys I lost you I think I was in the middle of saying it depends on which county you’re in counties that have the interstates going through them are the ones that you’re going to see um you know some of the larger uh narcotics trafficking cannabis trafficking kind of cases occur um you know that’s not to say that a that a county like Cook County does not prosecute cannabis cases they still have them you’ll still see reports where people are pulled over because of the smell of cannabis uh what will happen after Redmond it’ll be in it’ll be interesting to see the rulings on the Motions to suppress statements but um I you know technically that opinion which just came out I don’t even know if the rehearing period is passed and all that I mean I I think I think it’s good law right now but it could be subject to rehearing I don’t know what do you think kin I I haven’t done that much Appel I haven’t done any Appel practice before the O Supreme Court I I I suppose you can always ask them to rehear the case but I think that’s about as rare as snow in July I don’t think that’s likely to happen here yeah especially with you know uh I mean the the defendant’s happy and uh I don’t think the state you know it it’s not like the pel the Supreme Court really missed something obvious I don’t think so right right but I mean what I’m saying is that if you’re in a trial court with a motion to suppress pending on a you know 200 kilo case I’m sure the Court’s going to wait 30 days before granting the motion based on Redmond oh yes yes I’m sorry I misunderstood the question yeah I uh I think they’re gonna wait for tri judge would wait yeah I think they’re gonna wait for the ink to dry on that before they’re going to rule on something as conclusive as that yeah or as dispositive well and or they’ll just say you know motion of suppress denied good faith exception the officer was operating under the laws that existed at the time right uh and it’s interesting regarding the good faith exception it it was waved in this case by on appeal twice they specifically mentioned the fact that the good faith exception was forfeited it wasn’t waved it was forfeit fed twice so whether in another incarnation of this case they may raise good faith as an exception that’s still a possibility too yeah yeah yeah yeah um so just to your point real quick to wrap up uh attorney gtra you mentioned Cook County um the Chicago Tribune found in the first year of uh legalization um I think it’s by the way I’m going to start calling it Taxation and regulation of cannabis instead of legalization cuz I feel like people are they get misunderstood when you say legalization they they think that means complete decriminalization it’s like now we just we’ve we’ve got a system to tax and regulate cannabis and you can purchase small amounts of it you know and be careful while you’re possessing it by the way because if an officer can smell it anyways though and the first year of uh legalization uh as they call it high there were High arest rates for black people and uh the University of Illinois actually did some more research and I’ll have a link to an interview here with uh a researcher who found that that data was still true I believe in the second year of legalization and and what they had actually found is that these arrests continue in areas without dispensaries which coincidentally are the areas that have always borne the brunt of the War on Drugs yeah yeah yeah Cole one one other thing you have to remember is when you see repeatedly police officers saying that they pulled a car over and then smelled uh this burnt cannabis and that’s why they conducted a search it’s not necessarily additional cannabis they’re looking for right you know in Chicago for example the primary purpose is usually to take guns off the street that’s what they’re trying to do they’re trying to they’re trying to search for for handguns and and sometimes um there have been some some uh notable instances recently where you know it’s been it’s been pretty aggressive some of these teams that go out try to pull cars over uh just because they think they may have a gun and the reasons they pull them over and the pretexts they use yeah so I asked this question last time we kind of stumbled upon it this time um and Bob actually last time you mentioned you done something with a case and you were able to kind of minimize the charges as a result of hemp right now I’ve got I just was thinking about it this joint is TA HCA flow so it’s hemp you know when I light it up right now it’s going to smell like weed um which obviously you know I I guess my point is I know that the uh legislature has tried or is going to try to regulate these products um but the bottom line is hemp will still be legal it just may you know if you sell it or whatever does that add any like does that make your job easier at all I mean you kind of get what I’m asking um it yeah I mean it’s hard to discern I don’t know how an officer would discern the difference between Delta 8 I had a case like I told you where my client was saying it was delta8 and I after pointing out the farm bill uh in the industrial lamp Act and the requirements we discovered that the um Illinois State Police crime lab does not quantify the amount of THC so that you can’t tell whether or not it even would qualify for industrial Hy they just it’s just a litus test basically for lack of a better word to see if it is THC or not not the um percentage uh which which really really starts complicating things because of you know if we’re talking about the smell or raw or whatever because raw or smell it’s still going to smell like cannabis that’s regulated um but you know the the bigger thing of course is the economic thing is is all the dispensaries and the cultivators and the Cannabis industry really wants to predict what it has and doesn’t want to have the Delta 8 which is creeping into their market and taking away their profits so it’s really and and I think the government is trying to assist them in that and that’s we’ve seen some bills last uh spring or this this spring which uh were trying to that out and there was a lot of expectation but then it all came to not uh and it didn’t really happen right yeah yeah like you say I mean it’s not only the products themselves which we’ve had operators on the show uh Charlie baell who is the CEO and founder of one of the biggest cannabis companies in the United States and they’re founded here in Illinois he says you know these are truly identical products by people that did not have to go through all the licensing uh fees and compliance and everything they’ll that we have to go through and they just open up a a shop and it’s it’s really like you know a good analogy I heard was taxi medallions in Uber where it’s like the city gave you a taxi Medallion and then all of a sudden the cell phone came around and it’s it’s not illegal to to hail a ride from a stranger right you know and so it’s like uh I think it’s a good analogy uh here and to that analogy it’s like uber obviously needs a lot of improvement because there’s little to no regulation there and I think with hemp you know this same argument could be made but more to your point you know putting regulation aside like you say it’s been a direct challenge to this idea of limiting the number of participants in the market because I’ve interviewed the the head of uh the Illinois Department of Agriculture and he was like Cole if you would have applied for a hemp license this morning you’d be walking out with one and that’s not the way that it is in the Cannabis industry like you got to know somebody to get one and mean in the government I mean somebody that has a license because they’re not issuing anymore you got you got to hire Tom Howard that’s right you have to hire somebody like Tom Howard exactly cannabis industry lawyer um shout out to him he’s been on the show a few times um but you know to your point it really challenges that that model they have which is that you can only go to a dispensary to get it now you can go to places like Benny’s in your corner store and uh that really challenges the entire brick and mortar model on which these uh this economy is based on really I mean you know so but again another topic for another day I was only asking because I was curious you had mentioned that last time I didn’t know if time had gone on if if hemp had made the the because the reason I find it so interesting is there’s no possession limit with hemp like you said it smells the exact same as cannabis so it’s like IT addresses all these issues I have about the shortcomings of legalization you know yeah Evan I don’t know how many how many criminal defense practitioners actually challenge the um the chemist uh from the crime lab that comes in in cannabis cases I mean usually when you get that far along you know you’re at trial this is not be something yeah and when it’s at you know it’s pretty high stakes when it’s at trial because then all the offers to reduce the case and all that have gone out the window and if you lose you’re going to get close to the middle of the range or Max after a jury trial yeah it also kind of matters at trial in a way that it doesn’t add emotion to suppress it’d be like if you had a Solo Cup in your cup holder filled with o if you’re charged with having you know illegal transportation of liquor you can beat that at trial by saying that was a non-alcoholic beer in my cup holder but that doesn’t but but as far as the cop’s concerned it’s beer and there’s no way for him to know it’s not so he gets to search your car because it’s prob cause but I mean it’s two different questions trial and whether the cop was allowed to search based on it yeah that’s a good point you’re not going to beat the ride you might be able to prove it down the road but yeah so all right well um cool well we covered a lot of bases um I’d love to maybe do a short recap uh hopefully in the next month if they issue that ruling with both of you um any parting thoughts before we go I think we covered it for my end cool yeah no we’ve covered it extensively Cole thanks for the opportunity yeah thank you both and uh we’ll see you in the next episode of the Cole memo take care Bob take care Evan we’ll see you thanks guys take care [Music]