2020 IL App (2d) 180162-U 

No. 2-18-0162 

Order filed March 11, 2020 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 17-CF-647 

) 

MAURICE WHEELER, ) Honorable 

) Donald M. Tegeler Jr., 

Defendant-Appellant. ) Judge, Presiding. 

______________________________________________________________________________ 

JUSTICE ZENOFF delivered the judgment of the court. 

Justices McLaren and Hutchinson concurred in the judgment. 

ORDER

¶ 1 Held: The trial court did not err in denying defendant’s motion to suppress evidence 

discovered after warrantless search, as the odor of burnt cannabis from defendant’s 

vehicle gave the officer probable cause to search defendant and his vehicle, 

regardless of the recent enactment of legislation decriminalizing certain uses and 

possession of cannabis. 

¶ 2 Defendant, Maurice Wheeler, appeals from his convictions of possession of cocaine with 

the intent to deliver within 1000 feet of a park (720 ILCS 570/407(b)(2) (West 2016)), possession 

of cocaine with the intent to deliver (720 ILCS 570/401(c)(2) (West 2016)), possession of cocaine 

(720 ILCS 720 ILCS 570/402(a)(2)(A) (West 2016)), and resisting a peace officer (720 ILCS 5/31-
2020 IL App (2d) 180162-U 

- 2 -

1(a-7) (West 2016)). On appeal, he argues that the trial court erred in denying his motion to 

suppress the drugs that are the basis of his convictions. In denying the motion, the trial court ruled 

that the officer who recognized the odor of burnt cannabis coming from defendant’s vehicle had 

probable cause to search defendant and his vehicle. Because the odor of burnt cannabis coming 

from defendant’s vehicle provided probable cause to search both the vehicle and defendant, we 

affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was indicted on one count of possession of cocaine with the intent to deliver 

within 1000 feet of a park (720 ILCS 570/407(b)(2) (West 2016)) (Count I), one count of 

possession of cocaine with the intent to deliver (720 ILCS 570/401(c)(2) (West 2016)) (Count II), 

one count of possession of methamphetamine with the intent to deliver (720 ILCS 646/55(a)(1) 

(West 2016)) (Count III), one count of possession of methamphetamine (720 ILCS 646/60(a), 

(b)(1) (West 2016)) (Count IV), one count of possession of cocaine (720 ILCS 570/402(a)(2)(A) 

(West 2016)) (Count V), and one count of resisting a peace officer (720 ILCS 5/31-1(a-7) (West 

2016)) (Count VI). Following a bench trial, the trial court found defendant guilty of Counts I, II, 

V, and VI. The court merged Counts II and V into Count I and sentenced defendant concurrently 

to nine years’ imprisonment on Count I and three years’ imprisonment on Count VI. 

¶ 5 Before trial, defendant filed a motion to suppress evidence found both on his person and in 

his vehicle. The evidence at the hearing on the motion to suppress established that, at 

approximately 11 p.m. on March 31, 2017, Officer Matthew Vartanian of the Elgin Police 

Department observed a vehicle with four occupants parked on the street. Defendant was the driver. 
2020 IL App (2d) 180162-U 

- 3 -

When Officer Vartanian approached the partially open driver’s side window,1 he smelled burnt 

cannabis coming from the vehicle’s interior. Based on the smell of cannabis, Officer Vartanian 

searched the vehicle and found two digital scales. A search of defendant revealed 

methamphetamine, cocaine, and cannabis. 

¶ 6 Defendant, relying on cases from Massachusetts, argued that, when he was arrested, it was

not a crime in Illinois to possess small amounts of cannabis, and therefore the odor of burnt 

cannabis alone did not provide probable cause to search him or his vehicle. The trial court rejected 

that argument and denied the motion to suppress. Following trial, defendant filed a timely notice 

of appeal.

¶ 7 II. ANALYSIS

¶ 8 Over the past few years, Illinois decriminalized the possession and use of small amounts 

of cannabis (see 720 ILCS 550/4(a) (West 2016)), decriminalized the possession and use of 

cannabis for medical purposes (see 410 ILCS 130/25(a) (West 2016)), and very recently otherwise 

decriminalized the possession and use of cannabis (see Pub. Act 101-0027 (eff. June 25, 2019) 

(adding 410 ILCS 705/1-1 et seq.). Defendant argues on appeal that, in the context of the 

prohibition against unreasonable searches and seizures, the consequence of this decriminalization 

is that the smell of cannabis no longer provides probable cause of criminal activity. Contrary to 

defendant’s assertion, the piecemeal legislation has not decriminalized the possession and use of 

cannabis everywhere all of the time.

1 The trial court ruled that there was a consensual encounter between Officer Vartanian and 

defendant. Defendant does not challenge that ruling on appeal. 
2020 IL App (2d) 180162-U 

- 4 -

¶ 9 Suppression rulings present mixed questions of law and fact. People v. Pitman, 211 Ill. 2d 

502, 512 (2004). In reviewing a ruling on a motion to suppress, we defer to the trial court’s 

credibility determinations and factual findings, and we will not disturb those findings unless they 

are against the manifest weight of the evidence. People v. Slater, 228 Ill. 2d 137, 149 (2008). We 

review de novo the ultimate question of whether the motion to suppress should have been granted. 

People v. Lopez, 2013 IL App (1st) 111819, ¶ 17. Defendant does not dispute the trial court’s 

finding that the officer detected and recognized the odor of burnt cannabis coming from 

defendant’s vehicle. Thus, we need only consider the ultimate question of whether that 

information provided probable cause to search, which we review de novo. 

¶ 10 It is well established that a police officer may search a vehicle without a warrant when he 

has probable cause to believe that the vehicle contains evidence of a crime. People v. Contreras, 

2014 IL App (1st) 131889, ¶ 28 (citing People v. Jones, 163 Ill. 2d 302, 312 (1994). Before 

decriminalization. our supreme court held that the smell of burnt cannabis coming from a vehicle 

provided probable cause to search both the vehicle and the driver. People v. Stout, 106 Ill. 2d 77, 

81-87 (1985). 

¶ 11 Several Illinois decisions, decided after the ruling on the motion to suppress, have rejected 

defendant’s argument that the decriminalization of small amounts of cannabis undermines 

probable cause. See People v. Rice, 2019 IL App (3d) 170134, ¶¶ 23-25 (the odor of burnt cannabis 

coming from a vehicle provides probable cause to search); In re O.S., 2018 IL App (1st) 171765, 

¶ 29 (same). As noted in Rice, decriminalization is not the same as complete legalization. Rice, 

2019 IL App (3d) 170134, ¶ 24. Because Rice and O.S. are well-reasoned, we follow them and 
2020 IL App (2d) 180162-U 

- 5 -

hold that decriminalization of cannabis did not preclude the officer from relying on the odor of 

burnt cannabis as a basis for probable cause to search a vehicle.2

¶ 12 Defendant argues that the officer lacked probable cause to search, because the odor he 

detected might have come from legal medical cannabis. No Illinois court has directly addressed 

whether possession and use of cannabis for medical purposes undermines probable cause based on 

the odor of burnt cannabis. However, the court in O.S. cited with approval several decisions from 

other states that had held that the legal use of medical marijuana did not undercut the reliance on 

the smell of burnt cannabis as the basis for probable cause to search a vehicle. O.S., 2018 IL App 

(1st) 171765, ¶ 28 (citing State v. Sisco, 373 P.3d 549, 553 (AZ. 2016); State v. Senna, 79 A.3d 

45, 50-51 (VT 2013); People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Cal. Ct. App. 2007)); see 

also Rice, 2019 IL App (3d) 170134, ¶ 23 (relying on both Sisco and Senna). The courts in O.S.

and Rice signaled clearly that the statutorily authorized possession and use of cannabis for medical 

purposes does not preclude the reliance on the odor of burnt cannabis as a basis for probable cause. 

We agree. There are numerous exceptions to, and limitations on, the possession and use of 

cannabis for medical purposes set forth in the Compassionate Use of Medical Cannabis Pilot 

Program Act (410 ILCS 130/30 (West 2016)), including the use in a motor vehicle (410 ILCS 

2 We note that the Appellate Court, Fourth District, has held that, irrespective of the 

decriminalization of small amounts of cannabis, the smell of raw cannabis inside a vehicle 

continues to provide probable cause to search the vehicle. See People v. Hill, 2019 IL App (4th) 

180041, ¶ 36, appeal allowed, No. 124595 (Ill. May 22, 2019). Because the issue before us 

involves the smell of burnt cannabis, we offer no opinion on whether the smell of raw cannabis 

continues to provide probable cause to search a vehicle. 
2020 IL App (2d) 180162-U 

- 6 -

130/25 (West 2016)). Thus, notwithstanding the possible possession and use of medical cannabis 

for medical purposes, the smell of burnt cannabis emanating from inside a vehicle continues to 

provide probable cause to search that vehicle. Accordingly, like the decriminalization of cannabis, 

the possession and use of medical cannabis is not synonymous with the complete legalization 

cannabis.

¶ 13 Defendant relies on Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011), to support his 

argument that the decriminalization of cannabis precludes the reliance on the smell of cannabis as 

a basis for probable cause. However, both Rice and O.S. expressly rejected the rationale of Cruz. 

Rice, 2019 IL App (3d) 170134, ¶¶ 21-24; O.S., 2018 IL App (1st) 171765, ¶¶ 27-29. As 

discussed, we agree with the reasoning in both Rice and O.S. Thus, we are unpersuaded by Cruz. 

Further, we are not bound by decisions from other states. People v. Qurash, 2017 IL App (1st) 

143412, ¶ 34. 

¶ 14 That leaves defendant’s suggestion that, because the very recent Cannabis Regulation and 

Tax Act (Act) (see Pub. Act 101-0027 (eff. June 25, 2019) (adding 410 ILCS 705/1-1 et seq.))

decriminalizes the possession and use of cannabis by someone over 21 years old, the odor of burnt 

cannabis emanating from a vehicle is no longer a proper basis for probable cause to search the 

vehicle. The new law became effective well after the ruling on the motion to suppress. Defendant 

does not cite any authority in support of applying the law retroactively. In contrast, the State cites

People v. Hardin, 203 Ill. App. 3d 374 (1990), for the proposition that a court must apply the law 

in effect when defendant committed the offense. In Hardin, the court held that a new version of 

the law, which took effect a week before the trial court ruled, applied. Hardin, 203 Ill. App. 3d at 

376. Here, however, the Act was not effective until after the ruling on the motion to suppress. 

Thus, Hardin does not support the State. 
2020 IL App (2d) 180162-U 

- 7 -

¶ 15 Here, the Act implemented substantive changes to the legal possession and use of cannabis, 

and therefore it applies only prospectively. See People v. Gilsson, 202 Ill. 2d 499, 508 (2002) (in 

criminal cases retroactive application is prohibited where statutory changes alter or repeal the 

crime itself); People v. Digirolamo, 179 Ill. 2d 24, 50 (1997) (substantive change to a criminal 

statute does not apply retroactively). Thus, the Act was not effective at the time of the search, so 

its limited decriminalization of cannabis may not be a basis for reversing the probable cause 

determination to search defendant and his vehicle. 

¶ 16 III. CONCLUSION

¶ 17 For the reasons stated, we affirm the judgment of the circuit court of Kane County. 

¶ 18 Affirmed.