Criminal Law FLASHPOINTS May 2023

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Fourth District: Despite Legalization of Cannabis Possession in Small Amounts, Probable Cause Still Exists Should K-9 Alert

In People v. Mallery, 2023 IL App (4th) 220528, the Fourth District Appellate Court reversed a trial court’s suppression of a warrantless vehicle search that resulted in police discovering methamphetamine after a K-9 that was trained to detect cannabis and various controlled substances alerted on the vehicle.

In Mallery, a police officer conducted a traffic stop on a vehicle after observing the defendant driver commit several traffic violations. The officer conducted a free-air sniff with his K-9 Rosco because of the officer’s previous knowledge of the defendant’s and her passengers’ drug use. Rosco had a positive alert on the front passenger door, and the officer searched the vehicle. The officer found various drug paraphernalia and methamphetamine residue in a bag that was by the defendant’s feet. 2023 IL App (4th) 220528 at ¶7. The officer did not smell the odor of cannabis during the stop. 2023 IL App (4th) 220528 at ¶9.

The officer testified at the motion to suppress hearing that Rosco was trained to detect cannabis, cocaine, heroin, and methamphetamine. 2023 IL App (4th) 220528 at ¶6. Rosco’s cannabis detection training did not change after various changes to Illinois’ cannabis laws, and the training did not involve the use of odor-proof containers. 2023 IL App (4th) 220528 at ¶9.

The trial court suppressed the evidence and found that cannabis could no longer always be considered contraband. 2023 IL App (4th) 220528 at ¶10.

The appellate court reversed the suppression of the evidence and emphasized that the Illinois Supreme Court declined in People v. Hill, 2020 IL 124595, 162 N.E.3d 260, 443 Ill.Dec. 626, to overrule its holding in People v. Stout, 106 Ill.2d 77, 477 N.E.2d 498, 87 Ill.Dec. 521 (1987) (holding that officer’s detection of odor of cannabis from vehicle without additional corroborating evidence permits warrantless search of vehicle), which was still controlling precedent despite various changes in Illinois’ cannabis laws in recent years. 2023 IL App (4th) 220528 at ¶25.

The appellate court noted that the Hill court rejected the arguments that cannabis was no longer contraband after recent decriminalization laws because contraband still included all items that were unlawful to possess. 2023 IL App (4th) 220528 at ¶26, citing Hill, supra, 2020 IL 124595 at ¶¶30 – 31. So although certain cannabis amounts were now civil violations, possession was still illegal and cannabis was still contraband. Id.

The appellate court reiterated that K-9 alerts alone still provide probable cause for a vehicle search. 2023 IL App (4th) 220528 at ¶38.

In Mallery, the court concluded that the officer’s probable cause to search the defendant’s vehicle was also based on his knowledge of the occupants’ drug use in addition to the K-9’s positive alert. 2023 IL App (4th) 220528 at ¶37. However, the appellate court also stated that precedent still held that a K-9 alert alone provided probable cause to search the vehicle. 2023 IL App (4th) 220528 at ¶38. The appellate court rejected the defendant’s arguments that since a K-9 could alert to residual odors that resulted from legal behavior, then a positive alert should no longer provide probable cause to search a vehicle. 2023 IL App (4th) 220528 at ¶40. The appellate court stated that “simply because cannabis may be legal in some circumstances, does not mean that it is not unlawful in others.” 2023 IL App (4th) 220528 at ¶41. The appellate court cited its opinion in People v. Molina, 2022 IL App (4th) 220152, ¶43, that there are still illegal ways to transport, to consume, and to possess certain amounts of cannabis regardless of changes in the law that legalized small amounts of cannabis. 2023 IL App (4th) 220528 at ¶30.

The court also focused on 625 ILCS 5/11-502.15, which requires that cannabis transported in a vehicle be in a sealed, odor-proof, and child-resistant cannabis container. 2023 IL App (4th) 220528 at ¶42. The court reasoned that if the odor of cannabis is present in a vehicle, then it is almost certain that the statute has been violated because cannabis that is in a sealed and odor-proof container should be undetectable by an officer. Id.

The court next disagreed with the defendant’s contention that cannabis could no longer be considered contraband in any context because certain amounts are now legal to possess. The court cited the Illinois Supreme Court’s statement in Hill in which it said that “the decriminalization of possessing small amounts of contraband did not alter the status of cannabis as contraband.” 2023 IL App (4th) 220528 at ¶26, quoting Hill, supra, 2020 IL 124595 at ¶31.

The Mallery court declined to follow the Third District’s holding in People v. Stribling, 2022 IL App (3d) 210098, that the odor of burnt cannabis without corroborating factors did not provide probable cause to search a vehicle. 2023 IL App (4th) 220528 at ¶46.

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