The Cole Memo
02-20-2025
On Tuesday, February 19th, an Illinois Senate committee voted 7-3 to advance Senate Bill 42, which would eliminate the requirement that cannabis be transported in vehicles in an odor-proof container. The bill was scheduled for its second reading in the Senate on February 20, 2025. However, at the time of writing this article, it remains unclear whether the reading took place.
In this article, I will outline key moments from the hearing, which lasted nearly two hours. At times, the fast-paced exchanges made it challenging to capture everything in detail, but below are some of the notable highlights that I was able to capture.
You can watch me talk about this on the podcast here.
Background
The bill was introduced following an Illinois Supreme Court ruling which affirmed that the state’s odor-proof container requirement for cannabis remains enforceable.
In its ruling, the Court acknowledged that the legislature was already considering amendments to the Vehicle Code and encouraged lawmakers to also amend the Cannabis Regulation and Tax Act (CRTA) to ensure consistency between the two statutes. The Court emphasized that aligning these laws is essential for both cannabis users, so they can comply with possession requirements, and law enforcement, so they can determine when probable cause exists
Key Takeaways from the Hearing
When the hearing on SB42 began, the chair of the Criminal Law Committee opened by noting the number of witness slips submitted. For those unfamiliar, witness slips allow citizens and representatives of businesses or organizations to express support or opposition to proposed legislation. This process provides a rare opportunity for direct public participation, either through written statements or oral testimony.
The chair reported that 338 slips were filed in support of the bill, 98 in opposition, and 3 with no position. Notably, the majority of those who filed in opposition were either active or retired law enforcement officers or members of law enforcement organizations. You can view the witness slips by clicking here.
The hearing began with an opening statement by the main sponsor of the legislation, Senator Rachel Ventura. Senator Ventura explained that SB42 would make two key changes: it would eliminate the requirement for cannabis to be transported in an odor-proof container and would restrict law enforcement from conducting vehicle or personal searches based solely on the smell of cannabis, whether raw or burnt.
She shared a background on the Illinois Supreme Court’s rulings, and detailed how the court consolidated two cases with opposing appellate rulings, only to later separate them for individual decisions (a move that the Chicago Tribune described as ‘unusual’).
“A recent state Supreme Court ruling gave a conflicting directive between raw and burnt cannabis, shifting a huge burden to law enforcement to know the difference. This bill aims to clean up that court ruling by directing law enforcement to consider all factors — not just odor — in deciding if the law has been broken.”Senator Rachel Ventura
She explained that the rulings place an unreasonable expectation on law enforcement, requiring officers to distinguish between the smell of burnt and raw cannabis. She also pointed out that “hemp” smells identical to raw “marijuana”. This means officers are being asked to differentiate between “hemp” and “marijuana”—both of which are cannabis but have different legal classifications.
Note: if you’re confused by the difference between “hemp” and “marijuana” below is a brief explanation.
Hemp: Defined by the 2018 Farm Bill as cannabis containing less than 0.3%
Delta-9-THC on a dry weight basis. Hemp includes hemp-derived legal-THC (HDLT) products, which enjoy significant legal and regulatory advantages. Hemp and its cannabinoids are federally-legal, as they have been removed from the Controlled Substances Act.
Marijuana: Cannabis products with more than 0.3% Delta-9-THC, regulated under state-specific laws and still federally-illegal under the Controlled Substances Act (CSA). Products regulated under state frameworks, such as Illinois’ CRTA, fall under this category.
In short, these terms are legal classifications for the same botanical plant, Cannabis sativa. Simply put, the only difference between “hemp” and “marijuana” is their legal status—they are both cannabis. You can explore the transformative potential of hemp policy and what it means to truly “finish the job” with full cannabis descheduling by reading this paper I wrote.
Senator Ventura clarified that her bill would not prohibit law enforcement from using odor as a factor in a vehicle search, as long as it was considered alongside other circumstances.
Ventura reiterated that her legislation would simply make it so that the smell of raw or burnt cannabis alone could not be used as justification to search a person or their vehicle.
Senator Ventura then invited a representative from the ACLU to speak on the issue. The representative mentioned that while the ACLU had filed a witness slip as ‘No Position’ on the bill, they would support the legislation with the addition of Amendment 1 to SB42. They explained that without this amendment, the bill could inadvertently give law enforcement another reason to stop drivers and check their age.
“The General Assembly has an opportunity to clear up unnecessary confusion by adopting Senate Bill 42. It is highly unlikely that an officer, standing alongside a busy highway or city street, is able to distinguish between the odors of burnt and raw cannabis. Drivers and passengers are legally able to possess cannabis in our state. This confusion over the odor of cannabis should not be a trigger for officers to continue to harass and delay motorists with intrusive searches. These stops and searches are targeted disproportionately against drivers of color in Illinois. We encourage the legislature to clear up this confusion by adopting the very simple language contained in the bill and Amendment #1.”Alexandra Block, director of the Criminal Legal System and Policing Project at the ACLU of Illinois
The ACLU representative highlighted an interesting statistic: only 1.5% of all traffic stops actually result in police finding any contraband. I was unable to find where they found this statistic and I didn’t note if they cited their source.
Law Enforcement Speaks Up
Representatives of law enforcement also provided oral testimony during the hearing, arguing that the legislation seeks to overturn the most recent Illinois Supreme Court ruling and, in doing so, would negatively impact law enforcement officers, police service dogs, and put the public at risk.
A retired officer, who identified as an expert with 24 years of experience in K9 handling—testified about the capabilities of police dogs. He stated that K9 officers possess an odor detection capacity that is “10,000 to 100,000 times greater than that of an average human.”
Law enforcement representatives also expressed concern that SB42 would create a “friction point” for officers.
Law enforcement representatives testified that fentanyl being laced into marijuana is something that is a major concern with regard to this topic. To support their claims, they cited an article from the Washington Examiner. They argued that removing the “odor-proof container” requirement would significantly hinder their ability to protect Illinois residents from dangerous substances.
They further explained that Illinois currently has 250 state-qualified cannabis detection teams, and if SB42 were signed into law, it would require law enforcement to disband these teams and then acquire, train, and maintain new police service dogs across the state.
They described this transition as a “financial burden” on agencies and handlers, as they would be responsible for either retiring or replacing hundreds of cannabis-trained K9s. On top of that, they explained that handlers would face an additional burden of personally caring for their retired partners, including covering medical expenses, food, and other related costs.
Law enforcement also warned that “cartels and criminals” would benefit from the passage of SB42, arguing that it would allow them to evade detection during traffic stops. Officers explained that when a K9 conducts a free air sniff around a vehicle, it cannot distinguish between different narcotics. They claimed that cannabis is frequently used as a “cover odor” by traffickers smuggling firearms, dangerous drugs, and human trafficking.
They argued that if Illinois stopped training police dogs to detect the odor of cannabis, officers would miss opportunities to catch more dangerous drugs such as fentanyl, heroin, cocaine, and methamphetamine.
Law enforcement also attempted to draw a comparison between the “odor-proof container” requirement for cannabis and existing laws for firearms and alcohol, asserting that these substances must be reasonably inaccessible, unloaded, or enclosed in a sealed case. This comparison is flawed, as Illinois law requires cannabis to be stored in a “sealed or resealable container” and “reasonably inaccessible” while a vehicle is moving.
Multiple speakers from law enforcement echoed the sentiment that cartels and criminals would be primary beneficiaries from this legislation.
Mislabeled Products and Mixed Messages
Jim Kaitschuk, a representative of the Illinois Sheriff’s Association, made a brief statement during the hearing. Holding up a cannabis product he claimed was purchased from a dispensary, he referenced previous discussions where it was argued that no container is truly odor-proof. To challenge this claim, he offered to pass around the product, asserting that since no one in the room could detect its smell, the container must be odor-proof.
Capitol News Illinois published a photo of the product Jim Kaitschuk passed around during the hearing. Notably, the cannabis container lacked any branding, and it appeared to be mislabeled—indicating it contained edible cannabis when, in fact, it held cannabis flower.
How Kaitschuk obtained this product remains unclear to me, but I can think of a few possible explanations. A cultivation center may have mislabeled the product, resulting in a dispensary unknowingly selling it under the wrong classification (which admittedly, seems very unlikely). Law enforcement may have presented the product in a misleading way. There may also be another explanation that has yet to surface, but without speculating further, it is difficult to determine what that might be.
Unfortunately, I didn’t get a close look at the container until I saw footage from Capitol News Illinois posted online after the hearing.
Conflicting Statements on Cannabis Odor Detection
“Through our training and experience, we can make this distinction” between burnt and raw cannabis, Kaitschuk said.Jim Kaitschuk, Source: Capitol News Illinois
Mr. Kaitschuk indicated that distinguishing between unburnt and burnt cannabis is something that law enforcement is trained to do. This contradicts past statements he has made in the media, where he seemed to indicate that law enforcement may struggle to differentiate between “raw” and “burnt” cannabis. If new training methods have been developed to address this issue, he did not mention them during his testimony.
Other members of law enforcement have made similar statements in the past.
“Oftentimes the smell of burnt or unburnt or raw cannabis is difficult to tell the difference in”Sangamon County Sheriff Jack Campbell, Source: NewsChannel20
“SB 42 is another step forward in modernizing Illinois cannabis laws. Removing the odor-proof container rule will provide drivers the peace of mind of knowing they cannot be stopped solely for possessing a legal product. SB 42 will also relieve the burden on law enforcement to decipher the difference between raw and burnt cannabis”Peter Contos, Cannabis Equity Illinois Coalition
Peter Contos from the Cannabis Equity Coalition of Illinois testified in support of SB42 during the hearing. He noted that Illinois is an outlier in requiring an odor-proof container and highlighted the inconsistency in cannabis packaging across the state. He emphasized that packaging standards are not uniform and argued that the single example being passed around the room was not representative of all cannabis products available in Illinois.
He also directly addressed the claim that cannabis is being laced with fentanyl, inviting officials to provide any data supporting this assertion. He ridiculed the talking point, arguing that it makes little sense from a business perspective—questioning why anyone would intentionally kill off their own clientele.
I also took the time to provide testimony, I will paste my prepared remarks below.
My name is Cole Preston. I am not with an organization, I am representing myself.Illinois State Police recently made clear in the annual cannabis report—available on the Illinois Cannabis Regulation Oversight Office’s website—that they plan to resume training K9s to detect the scent of cannabis, I believe some of our friends in law enforcement mentioned that today. As law enforcement mentioned, dogs have an exceptionally strong sense of smell which raises serious concerns.Compounding this issue is the fact that cannabis is not packaged in odor-proof containers.I would love to smell that container.I would also just ask that all of you visit a dispensary. The reason it smells like cannabis is because the packages are not odor-proof. The products arrive prepackaged. So, the reason that you can smell cannabis in a dispensary is because the packaging is not odor-proof. Which means that as soon as someone purchases cannabis and enters their vehicle, they are technically out of compliance with the law due to permeating nature of the odor of cannabis.Additionally, there are entirely innocent reasons a person might smell like raw cannabis. Medical cannabis patients in the state of Illinois are legally allowed to grow their own plants, and those who tend to them naturally will carry the scent. Similarly, employees at cultivation facilities will leave work smelling like raw cannabis, despite handling it in a fully legal setting.Given these realities, relying on K9 alerts or odor as probable cause for searches creates unnecessary legal risks for consumers, patients, and industry workers alike.It also places an unnecessary burden on law enforcement to differentiate between the smell of “burnt” or “unburnt” cannabis.I’d like to remind the room that we currently live in the year 2025 and you can now vaporize cannabis. So, I’m curious where that falls into the “burnt” and “raw” paradigm.If cannabis is “legal” in Illinois, the mere odor of the plant should not be grounds for searching or detaining someone. While the smell of cannabis could be one factor in an investigation, it should not, on its own, justify law enforcement action—especially given the many legal reasons a person or vehicle may carry the scent.Thank you.
Senator Steve McClure spoke next, directly refuting my statement and challenging others in the room to smell the container themselves—a challenge that I now regret not accepting. He insisted that he couldn’t detect any odor and invited everyone in the room to do the same, repeatedly emphasizing that the container was completely scent-free.
Senator McClure also told stories about kids that had purchased marijuana laced with rat poison and another that had overdosed after smoking cannabis laced with fentanyl. His remarks were met with audible groans in the room.
He also asked if anyone in the room could confirm whether dispensaries were complying with the mandate that cannabis be sold in an odor-proof container. I considered approaching again to briefly reiterate my testimony, but the way he framed the question made it seem as though he was specifically seeking input from someone who owned a dispensary or worked in the industry. Given that I fit neither category, I ultimately chose not to return to the stand.
Senator Ventura responded by acknowledging that she didn’t know many details regarding the product that was being presented, including its age. She explained that cannabis products come in a variety of packaging types, and suggested that using a single example to represent all products was misleading. Additionally, she pointed out that what humans can smell from a container is vastly different from what a trained K9 can detect.
Senator Robert Martwick was the next to ask questions, focusing a lot of his questions on how the totality of circumstances would apply under this bill (this idea was debated in Illinois Supreme Court hearings). He also questioned whether the current law distinguishes between cannabis odor detected by K9s versus humans (it doesn’t). He asked whether it was possible that, even if people in the room couldn’t smell the product, a trained dog might still be able to detect it.
A law enforcement representative responded by stating that odors can eventually seep out of any container but did not provide a direct answer regarding the specific cannabis container in question. They also noted that the Illinois General Assembly and law enforcement had collaborated to create what they consider one of the best cannabis laws in the country, emphasizing that the “odor-proof container was part of the deal.”
One of the most notable exchanges during Senator Sims’ questioning came when he asked Senator Ventura if she intended to continue working with law enforcement to reach a compromise on the issue. She responded by saying that these conversations have been ongoing for years and stated, “We are at an impasse.”
The hearing continued with questions from other senators, including Senator Jil Tracy and follow-up questions from Senator McClure. However, I didn’t find much of their commentary/questioning to be particularly notable.
Senator Martwick asked if the dogs can tell the difference between “hemp” and “marijuana”. The officer seemed to suggest that K9s can distinguish between “hemp” and “marijuana,” though I’m not sure if that claim is accurate. He referenced some research to support his statement, but I don’t recall what he cited. After the hearing, I approached him and asked for his business card to continue the conversation, but he politely declined my request to connect.
There were several other moments during the hearing that I vaguely recall but don’t feel confident enough to share without verification. This topic is something I may discuss on the podcast in the future so if you’re looking to hear more, tune in!
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