Reversing a previous ruling from before the legalization of marijuana, the Illinois Supreme Court ruled Thursday that the smell of burnt cannabis alone is not enough to justify a warrantless police search of a vehicle.
The defense attorney in the case called it a victory for the constitutional protection from unreasonable searches — but police worried how it may impact their ability to enforce laws against drug trafficking and driving while impaired.
The ruling stems from a 2020 traffic stop of Ryan Redmond, who police said had an improperly secured registration on his license plate and was traveling 73 mph in a 70-mph zone on Interstate 80 near the Quad Cities in western Illinois.
State Trooper Hayden Combs said he smelled a strong odor of burnt cannabis coming from the car, prompting him to search the vehicle, where he found one gram of cannabis inside the center console in a plastic bag, according to the ruling.
The officer said he didn’t smell marijuana on Redmond, who denied smoking in the car, and didn’t see any signs of impairment. Redmond didn’t produce his license or registration, and the officer said he gave evasive answers. He told the officer he was traveling on I-80 from Des Moines to where he lived in Chicago, along what police called a “known drug corridor.”
Prosecutors charged Redmond with unlawful possession of cannabis. Even though state lawmakers legalized the possession of small amounts of cannabis, beginning in 2020, drivers are not allowed to smoke in their vehicles.
But the state Supreme Court ruled 6-0 that without other suspicious circumstances, such as a driver failing to stop for some time, or a bud in plain view, the search was unjustified.
“The laws on cannabis have changed in such a drastic way as to render the smell of burnt cannabis, standing alone, insufficient to provide probable cause for a police officer to search a vehicle without a warrant,” Justice Scott Neville Jr. wrote.
The justices cited a prior case in stating that “cannabis should be regulated in a manner similar to alcohol,” where possession is generally legal but remains unlawful under certain circumstances.
Courts from some other states, such as Kansas, Massachusetts, Minnesota and Pennsylvania, have also ruled that the smell of burnt pot by itself doesn’t justify a search.
But the court cautioned that police can still consider the smell of burnt marijuana as part of the general circumstances that may justify a search. The decision runs counter to a prior ruling from before Illinois legalized pot.
“It’s problematic for a couple of different reasons,” said Kenny Winslow, executive director of the Illinois Chiefs of Police Association, and former Springfield police chief.
He wonders what would happen in different scenarios. For instance, if a police dog reacts as if it smells drugs on a car, it could be cannabis, cocaine or fentanyl, but will police be able to conduct a search? Will police have to retire police dogs if they still react to weed?
And what if a minor has a smell of burnt cannabis in their car? Cannabis generally is only legal for adults 21 and over.
“It is going to present some challenges for us, but we’re just going to have to deal with it,” Winslow said. “It could endanger the public, but we’ll see as we go forward.”
The Illinois appellate prosecutor’s office had argued in court that the smell of burnt cannabis can still be evidence of transporting cannabis without a sealed, odor-proof container and it’s still illegal to get or be high while driving.
The new ruling reversed long-standing law in a case called People v. Stout. Long before legalization, in 1985, the state Supreme Court ruled that additional corroboration was not required to establish probable cause for a warrantless search “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.”
Defense attorney James Mertes said the ruling upheld the Fourth Amendment right against unreasonable searches, and that he and his client, Redmond, were both happy with the ruling.
Mertes repeated what he told the court: “The odor of cannabis is now an aroma of legality.”
In a somewhat unusual move, the court consolidated two cases with opposite appellate rulings on the issue, then severed them for its rulings.
In the other case, in Whiteside County in 2020, a state trooper said he smelled raw cannabis in a motor vehicle, and found a small box with several joints inside, and a container in the glove box with suspected cannabis in it.
The passenger, Vincent Molina, was charged with possession, and the same judge in Redmond’s case, Daniel Dalton, threw out Molina’s case. But a different appellate court overruled him, noting that a person still may not use marijuana while driving or drive while impaired.
Dalton presides over multiple counties, parts of which are overseen by different appellate courts.
The state Supreme Court is expected to rule on the Molina case in the near future.
