Illinois Supreme Court Says Police Can’t Use Smell Of Burnt Marijuana To Justify Vehicle Searches

The Illinois Supreme Court has ruled that the odor of burnt marijuana alone cannot be lawfully used by police as probable cause to conduct a warrantless vehicle search.

On Thursday, justices published an opinion in two consolidtated cases—People vs. Redmond and People vs. Molina—concerning law enforcement searching the cars of people after claiming they could smell burnt cannabis. Officers discovered small amounts of marijuana and charged the defendants for improper storage, as state law requires that cannabis being transported is kept in odor-proof containers.

After reviewing the cases, justices upheld lower court decisions to grant defendants’ motions to suppress the cannabis as evidence in the trial, affirming that “the odor of burnt cannabis, alone, is insufficient to provide probable cause for police officers to perform a warrantless search of a vehicle.”

The Supreme Court opinion was delivered by Justice P. Scott Neville, with five other justices concurring. The opinion pointed out that Illinois State Police Officer Hayden Combs “did not observe any signs of impairment or signs indicative of recent cannabis use” when he pulled over Ryan Redmond in 2020, and the officer later tried substantiating the search after learning that he was traveling from Des Moines to Chicago, which he claimed to be “hubs of criminal activity.”

Neville noted that “cannabis law has changed drastically over the last decade,” with Illinois enacting adult-use legalization in 2019. While the “appellate court has reached conflicting results in cases concerning the effect of legalization on probable cause for automobile searches,” the Supreme Court has now rendered a final verdict on the issue.

“There are now a myriad of situations where cannabis can be used and possessed, and the smell resulting from that legal use and possession is not indicative of the commission of a criminal offense,” the opinion, which was previously noted by Illinois New Joint, says. “Therefore, given the fact that under Illinois law the use and possession of cannabis is legal in some situations and illegal in others, the odor of burnt cannabis in a motor vehicle, standing alone, is not a sufficiently inculpatory fact that reliably points to who used the cannabis, when the cannabis was used, or where the cannabis was used.”

“In short, Officer Combs’s detection of the strong odor of burnt cannabis coming from the vehicle certainly established reasonable suspicion to investigate further. Combs reasonably investigated whether Redmond had violated the Vehicle Code and whether Redmond was driving impaired. When his further investigation did not yield any inculpatory facts, the quantity of evidence never advanced on the continuum from reasonable suspicion to probable cause to search. Therefore, the search was unreasonable and unlawful, and the circuit court properly granted Redmond’s motion to suppress the evidence in this case.”

The court also cited a similar case in Minnesota, which legalized marijuana last year. The Minnesota Supreme Court also determined that police can’t use the smell of cannabis alone to justify vehicle searches—a ruling that has since been codified by the legislature and signed into law by Gov. Tim Walz (D) in May.

Also, in Missouri, a lawmaker filed a bill this session that would prevent police from using the smell of marijuana as the sole basis of a warrantless vehicle or property search. Rep. Ian Mackey (D) filed an earlier version of the bill in 2021, but it did not advance out of committee.

Prior to legalization taking effect in Maryland last July, Gov. Wes Moore (D) allowed a bill to become law that also prevents police from using the odor or possession of cannabis alone as the basis of a search. GOP lawmakers have so far unsuccessfully attempted to reverse that policy.