Illinois became the first state in 2019 to decriminalize the sale of cannabis. Illinois was also the first state to do so through the legislature and not a ballot initiative.
The Cannabis Regulation & Tax Act of 2020 allowed adults over the age of 21 to legally purchase “recreational” marijuana from dispensaries. When this law passed, many citizens in Illinois thought it would be legal for them to use marijuana in almost all situations. Others thought the police would simply stop enforcing any cannabis-based laws due to it becoming more socially acceptable.
This was not the case. Cannabis is the easiest thing to smell for police officers, and one of the easiest ways for them to get into your car. Smell alone, according to the opinion of most prosecutors, is enough to permit an officer to search your vehicle. It is important that citizens understand the hidden aspects of the marijuana laws so as to not run afoul of them accidentally.
How Much Marijuana is Legal to Use and Possess in Illinois?
The cannabis laws are different for Illinois residents and non-residents. Remember, both residents and non-residents have to be over 21 years of age to legally possess cannabis.
Possession of cannabis by Illinois residents (defined as living in Illinois for 30 or more total days) is legal in the amounts of:
- Up to 30 grams of cannabis “flower” (roughly an ounce)
- Up to 500mg THC in Cannabis-infused products (such as edibles)
- Up to 5 grams of THC “concentrate” – meaning marijuana “wax, distillate, shatter, rosin, oils, medicated creams, or dab rigging”
- Registered patients in the medical cannabis program also may be allowed to store more than 30 grams in their residence if it is grown and secured according to the cannabis cultivation laws of Illinois.
- Private sales are prohibited in all instances. Cannabis must be purchased from a state-approved dispensary.
Non-residents (defined as those who have resided in Illinois less than 30 days total) are allowed to possess cannabis in the amounts of:
- Up to 15 grams of cannabis “flower”
- Up to 250 mg THC in cannabis-infused products (such as edibles)
- And up to 2.5 grams of cannabis concentrate
These amounts are exactly half of what Illinois residents are allowed to legally possess.
When is it Illegal to Use or Possess Marijuana in Illinois?
- It is illegal if you possess an amount in excess of any of the amounts discussed above.
- It is illegal to smoke marijuana or possess ANY amount if you are under 21, but it will only be a civil violation punishable by a $100-$200 fine.
- If you are under 21 and obtain marijuana by using a false ID or representing a false age, it will be a class A misdemeanor which also comes with a driver’s license suspension.
How Much Weed Can I Grow in Chicago Without a License?
To grow any marijuana in Illinois you must be a resident (here for more than 30 days), over 21 years old, and a medical marijuana patient. You may then grow:
- Up to 5 plants (but no bigger than 5 inches tall)
- You must buy authorized cannabis seeds for purchase
- The plants must be in a locked, enclosed space
- The plants must be out of public view
- You may only grow plants on residential property
- Note: You may also designate an agent to care for your plants while out of town.
A violation of any of these rules will result in a civil penalty (a $200 fine).
When is it Illegal to Grow Marijuana in Illinois?
- Cultivation of any kind will not be allowed if one is not a medical marijuana patient.
- It is against the law if marijuana is cultivated in an open space that is not locked or enclosed.
- It will also be against the law to grow marijuana which is in public view or on commercial property.
- You cannot sell the marijuana you cultivate.
- You cannot drive in a car with the marijuana that you lawfully cultivate.
Note: A violation of cultivation laws will likely get your medical marijuana card revoked in Illinois.
Can I Get into Trouble for Smoking Weed With My Friends?
Marijuana is often thought of as a social activity. Friends gather together to enjoy it in the comfort of their own homes or apartments. However, if you are smoking marijuana with a friend under 21, you can get in trouble.
If someone over 21 allows someone under 21 to smoke or possess cannabis, then it becomes a class A misdemeanor. The charge can be enhanced to a class 4 felony if death or great bodily harm occurred directly or indirectly from the use of the cannabis by the minor. A violation of this policy will likely result in the revocation of your medical marijuana card -- so be warned.
Can I Legally Transport Medical or Recreational Marijuana in my Car?
This is where the law gets tricky and where many unsuspecting residents can find themselves in trouble. In Illinois, you cannot possess recreational marijuana in a car, UNLESS:
- It is in a reasonably secured and sealed odor-proof and child-resistant container;
- It is reasonably inaccessible while the vehicle is moving;
The same holds true for medical cannabis, only medical cannabis card-holders are required to have the cannabis in the approved container they bought from the store.
A violation of this will result in a class A misdemeanor criminal charge.
Can I Smoke Weed in my Car in Chicago?
The answer is no. Neither the driver nor the passenger may smoke weed in a car in Illinois.
A driver can still get a DUI in Illinois if they are smoking cannabis and driving. A cannabis DUI is defined as a person who within 2 hours of being in actual physical control of a vehicle has 5ng THC per ml of blood or 10ng THC per ml of other fluid. It is important to note that the phrase “in physical control” is a lot wider in application than most people think. Even if you are sleeping in the car or reasonably have immediate access to it, you could be deemed to be in physical control of the car.
What Does it Mean to be “over the limit” for Marijuana in my Blood?
The words “5ng THC per ml of blood” means nothing to most people. This is just a fancy way of saying that these numbers may indicate if someone smoked very recently. Marijuana only spends a very short amount of time in your blood before it disperses to other parts of your body. So, if you have a high concentration of THC in your blood, the law has determined that you likely ingested cannabis within the last 1-3 hours before entering the automobile. It is not an exact science, but it is good enough for Illinois law enforcement.
The criticism is often that high concentrations of marijuana in the bloodstream do not always match up to how mentally impaired one may feel. It is very common for someone to have a high concentration of THC in their bloodstream and for them to feel totally “sober.” Factoring in things like tolerance, body composition, and how marijuana can affect people much differently, it can often make for what seems like an unfair test to many users of the substance. Subjectively, many smokers report that they feel actually more “in control” and “safer” when driving while high on marijuana.
What is the Significance of the People v. Hill Case?
Before People v. Hill, the controlling marijuana search case in Illinois was People v. Stout in 1985. This case said that the smell of burnt cannabis was enough for law enforcement to search a vehicle. This makes sense, as burnt cannabis is evidence of driving while possibly impaired. But what about raw cannabis? Everyone wanted to know if raw cannabis alone could allow police to get inside your car. The Illinois Appellate court answered this question in People v. Hill (kind of).
The case of People v. Hill caused great excitement among court watchers of the Illinois appellate court system and criminal defense lawyers alike. It explored the idea of whether the “sniff and Search” law that allowed police officers to establish probable cause to search a vehicle on the basis of the smell of raw cannabis was legal.
The idea was that raw cannabis itself does not necessarily signal to an officer that there is an ongoing crime like burnt cannabis in an automobile does. Perhaps the marijuana was simply purchased at a lawful medical dispensary and being transported home? Why should this allow the officer to search the car based on the smell of raw cannabis alone? People v. Hill answered this question, and it came right before legalization.
In People v. Hill, an officer suspected that the driver of an automobile, Charles D. Hill, was a fugitive. Mr. Hill didn’t come to a complete stop for a few blocks after the officer “hit the lights” on him. The officer finally got Mr. Hill to pull over and approached the car. The officer smelled a strong odor of raw cannabis within the vehicle. After smelling this odor, the officer searched the whole car and found a small rock which based on his experience was crack cocaine. In the back seat, the office also discovered a tiny “bud” or “nug” of marijuana (much less than a gram).
The question for the court was simple: should the search and charge for the crack cocaine be allowed just based on the officer smelling this tiny amount of raw cannabis? The defendant claimed that because raw marijuana was legal to possess now in some circumstances, the smell alone shouldn’t automatically trigger probable cause to get inside his car.
The court disagreed with Charles Hill. The court held that the smell of this tiny amount of raw cannabis alone was enough to establish probable cause. They stated that while it is true that the mere presence of cannabis for approved medical users may not be immediately attributable to criminal activity or possession of contraband, such users must possess and use cannabis in accordance with the new medical marijuana laws. The fact that it could be smelled was a violation of the new law.
The new law they were talking about was 625 ILCS 5/11 502.1(b) & (c). This law states that medical cardholders could legally transport medical cannabis but only if it was in a sealed, odor-proof and child-resistant container. Anyone who violates this provision commits not only a class A misdemeanor, but they will also be subject to a revocation of their medical cannabis card and any privileges they held as a medical cannabis cultivator.
The court declined to address the odor-proof issue and attempted to limit their holding by using a “totality of the circumstances test.” But the holding was clear: raw cannabis will be enough to justify a search.
It was widely joked after this case appeared that this was a “Hill” law enforcement was willing to die on. During the creation of the Illinois “Search and Sniff” laws, law enforcement insisted they needed the words “odor-proof” in the statute. It is easy to see why they wanted this so badly.
Can I Buy an Odor-Proof Container for Cannabis?
Not really. Although some products advertise themselves as being completely odor-free, experts agree that the only way to achieve a totally “odor-proof” effect is to package the marijuana in a double-vacuum sealed container. There are also “stink sacks” or “smell proof” bags which can make the smell virtually undetectable, even to dogs.
However, these methods are far too expensive and cumbersome for the cannabis industry to worry about them. They are not going to spend extra money making sure you leave their facility with a double-vacuum sealed zero smell product because… it simply does not make them anymore money. They do not necessarily care what happens to you after you leave their doors. People will continue to buy their product no matter what.
This presents a fundamental problem: if one has to keep their cannabis in the original sealed container, and the container itself is not odor-proof… then they can always be subjected to a search any time they leave an Illinois dispensary. The “odor-proof” container the law talks about does not exist in reality.
Doctors at Colorado State University did a study on this issue called “Human Olfactory Detection of Packaged Cannabis.” They tested for 6 “terpenes” (the stuff in marijuana that makes it smell). They determined that the ONLY way to make cannabis terpene levels low enough to not be detected by the human nose was to have the cannabis double vacuum sealed. This is why double vacuum sealed marijuana is the packaging preference of drug traffickers and drug cartels.
Dispensaries and medical marijuana facilities do not double vacuum seal their cannabis. They are not required to by any law or ordinance. In fact… studies have shown that not a single dispensary in Illinois actually double vacuum seals their cannabis. They prefer flashy packaging which shows off brand names rather than durable packaging which will eliminate all traces of smell. This is what sells better.
Therefore, you are always vulnerable to a warrantless search every time you leave a dispensary or medical marijuana center in Illinois. This is in contrast to having an open container of alcohol, which is merely a petty offense and does not allow for a warrantless search standing alone.
In short: Every single time you are placing marijuana in your car from a recreational or medical cannabis center you are in potential danger of committing a Class A misdemeanor.
How Can I Safely Transport my Cannabis from a Medical or Recreational Center?
The only solution is to transport your cannabis directly from the recreational or medical facility directly back to your house. You could also place your cannabis in your trunk or purchase a “stink sack” or similar scent shielding bag… but these can be expensive (with some being upwards of $10 a bag).
None of these options will fully safeguard you, and unless you have a FoodSafe vacuum seal machine hooked into your car, you likely won’t achieve the intended effect to fully protect you from a search or misdemeanor.
Can the Sniff & Search Law Be Abused by Police Officers?
Definitely. Just because a police officer did not graduate law school does not mean they are not extremely well-versed in the law itself. Police officers know that one of the most powerful weapons in their arsenal is the ability to get into cars through the simple smell of cannabis.
In the modern age of body-worn cameras, it is not uncommon to see officers “testifying” for the cameras. They will stop a car that they believe contains a person who has committed a crime or will have evidence of a crime within it. As they walk towards the car, they will look at one another and sometimes say “do you smell weed? I definitely do.” Sometimes they are telling the truth, and other times they may be lying. It is impossible to tell whether someone actually “smells” something just by watching them on a camera. A defendant can always file a motion to suppress if no marijuana is found, but it is never a guarantee that will get their case thrown out.
The truth is: the current state of Illinois law allows nearly unlimited power for police to search if they merely say they smell cannabis. It is important to know your rights and do everything you can to avoid having your automobile not smell like cannabis. Allowing other people into your car that have cannabis on them or that have recently smoked cannabis could end up being a decision that carries huge legal consequences for you.
What is the Solution to the Odor-Proof Problem?
There are many possible solutions which are being suggested to Illinois lawmakers. The simplest one is to remove the words “odor-proof” from the law itself. That would solve everything. Other solutions involve forcing dispensaries and medical cannabis centers to package their marijuana in an “odor-proof” packaging. Neither of these suggested changes have been gaining much traction.
Other Issues with Marijuana: Discrimination in Driving Reinstatement Hearings
The other issue with medical marijuana which has been arising recently is the effect on driver’s license issues. If someone with a medical marijuana prescription is seeking driving relief or driver’s license reinstatement and they are classified as “High-Risk Dependent” by their evaluator, they are forced to show 12 months of “stable use” prior to obtaining relief. A “High-Risk Dependent” person who is prescribed benzodiazepines like Xanax or opiates like Percocets are not required to show “stable use” while they have a prescription.
Arguably, the potential for addiction for the latter two drugs is much greater than medical marijuana even when taken as prescribed. This may reflect an inherent discrimination when it comes to medical marijuana use that it is not as medically accepted as other pharmaceutical drugs. Rule changes are currently being proposed to the Secretary of State to deal with this issue.
Hope on the Horizon: People v. Stribling
A case called People v. Stribling recently came up in the Illinois Appellate court which could show that courts may be trying to limit the broad power of cannabis scent-based car searches. This decision comes after marijuana is now legal recreationally.
In People v. Stribling, an officer observed a defendant violating various traffic laws and pulled him over. When the officer approached the vehicle, he noticed a strong scent of burnt cannabis coming from the inside of the vehicle. The defendant then told the officer that someone had smoked inside the vehicle “a long time ago.” The officer then searched the car.
The defendant filed a motion to suppress the evidence claiming that the statements about someone smoking and the odor of burnt cannabis in a state where recreational cannabis was legal should not be enough to justify a search. Raw cannabis can now be legally transported from a dispensary. In addition, the odor of raw cannabis can linger on someone’s clothes and therefore it isn’t evidence of a crime and shouldn’t immediately give the officer grounds to search.
The appellate court agreed with this and stated that the smell of raw cannabis along with statements by a defendant were not enough to rise to the level of probable cause.
Probable cause is a fact specific inquiry, and every case is different. This ruling, however, gives some insight into the direction the Illinois courts may be shifting towards in the years to come.
Speak to an Experienced Cannabis Defense Attorney
If you or anyone you know has been charged with a violation of the cannabis laws in Chicago or anywhere in Cook, Lake, Kane, DuPage, McHenry or Will counties, contact the law offices of Mitchell S. Sexner & Associates LLC. We understand the new and emerging marijuana laws and how to best fight your case. We can be reached at (312) 644-0444 for a free consultation.