Decatur police Officer Robert Baker didn’t get a great look into a passing car, but it was good enough for him to pull it over because he thought a passenger was wanted by police.
Once Baker was face to face with the passenger, however, the officer discovered his mistake.
“... actually, to tell you the truth, I thought you were somebody else,” he said.
That would have been the end of the story, but for the strong odor of marijuana coming from the vehicle.
Baker checked the car and spotted a marijuana bud in plain view. A subsequent search turned up a small quantity of crack cocaine under the driver’s seat.
Charles Hill, the driver, was charged with possession of less than 10 grams of cocaine. Hill’s passenger — the guy Baker thought was someone else — was allowed to go free.
Last week, before the Illinois Supreme Court, the facts of the traffic stop and the warrantless search of Hill’s car were the subject of oral arguments that focused on whether the smell of marijuana should still provide probable cause for the search.
The case comes at a time when possession of small quantities of marijuana (up to 1 ounce) is newly legal in Illinois.
Although it’s unlikely the recent legalization will play a determining role in how Hill’s case is resolved, the issue of marijuana’s decriminalized status at the time of the traffic stop was front and center.
Hill’s lawyer argued that because possession of small amounts of marijuana was decriminalized at the time of the 2017 search, the officer had no legal authority to conduct it. The state argued it’s unreasonable to expect police to know the amount of marijuana in the car and that, as a result, the officer had authority to search.
It’s well-established law that the smell of marijuana provides probable cause to search a vehicle. So a ruling upholding Baker’s search won’t change the legal status quo.
But the dispute foreshadows future cases involving traffic stops and vehicle searches in the context of legal marijuana. Will the smell of legally possessed marijuana change the rules governing probable cause to conduct a search?
Although the issue of the marijuana smell was the subject of much media attention, the case raised two issues, one involving the traffic stop and the other involving the car search.
Macon County Circuit Judge Thomas Griffith ruled that the officer’s misidentification of the passenger invalidated the stop. As a consequence, he said, the flawed stop invalidated the search and required the crack cocaine to be excluded from evidence.
But the 4th District Appellate Court ruled that Griffith erred. It found unanimously that the officer, although misidentifying the passenger, acted reasonably and had sufficient grounds to stop the car.
“The only question before the court in such a case is whether the officer was reasonable in his belief that the person he saw was the one wanted on the warrant. The Supreme Court has said ‘certainty’ is not required ...,” Justice Craig DeArmond wrote.
The appellate court then moved to the defense’s backup argument that even if the stop was valid, the car search was not.
Hill “argues that, since Illinois has decriminalized small quantities of marijuana, the smell of cannabis alone cannot support probable cause for a warrantless search. What he fails to do is explain how a police officer, confronted with the obvious odor of cannabis when he first approaches a vehicle, is left to discern how much cannabis may be present by its smell alone,” the appeals court justice wrote, describing that kind of requirement as “unworkable.”
The state’s point was that because decriminalization is not legalization, the officer was entitled to search. The defense contended it was not an absolute certainty that the marijuana found in the car was contraband because of less-stringent laws governing possession of small amounts. For example, Hill’s lawyer said the officer didn’t know for certain that it wasn’t medical marijuana.
While it’s unclear when the Illinois Supreme Court will address the issue of car searches in an era of legal possession of small amounts of marijuana, the Colorado Supreme Court has already concluded that “the odor of marijuana is suggestive of criminal activity.”
Colorado was among the first states to legalize possession of the substance, but that state’s highest court said car searches based on smell are appropriate because “a substantial number of other marijuana-related activities (besides mere possession) remain unlawful.”
Jim Dey, a member of The News-Gazette staff, can be reached by email at email@example.com or by phone at 217-351-5369.