Smell Of Weed Not Enough To Search Car, Illinois Supreme Court Rules

SPRINGFIELD, IL — The Illinois Supreme Court this month overturned decades of precedent by ruling that the smell of cannabis alone cannot justify a warrantless vehicle search, more than four and a half years after the state legalized recreational marijuana.

In a unanimous decision, justices ruled that the long-standing law enforcement practice of justifying warrantless searches by reporting the smell of marijuana alone is no longer going to hold up in Illinois courts.

The ruling stems from the case of Ryan Redmond, who was pulled over for speeding on Interstate 80 in Henry County in September 2020.

Illinois State Police Trooper Hayden Combs searched the car after he said he smelled burnt marijuana. And indeed he found a small amount of marijuana in the center console.

But although such searches had been upheld under Illinois law for decades, the court found on Sept. 19 that the amended legal status of cannabis meant the smell alone no longer constituted probable cause.

The court's decision reflects the significant changes to Illinois cannabis laws since the the Cannabis Regulation and Tax Act took effect on Jan. 1, 2020.

"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 P. Scott Neville wrote in the court’s opinion.

Neville said that marijuana possession and use is now legal in many circumstances, meaning the odor of cannabis does not inherently indicate illegal activity.

"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," he said.

According to the ruling, the smell of burnt cannabis alone is not enough to provide probable cause.

Much like the smell of alcohol alone isn’t enough to justify a search, officers must consider the odor of marijuana among the totality of circumstances when determining if there is a substantial chance of criminal activity — like impaired driving or drug dealing.

The decision was hailed as a victory for civil liberties advocates, who have long argued that the odor of cannabis had become an easy excuse for police to conduct warrantless searches that has led to biased enforcement against Black and Latino drivers.

Attorneys for the American Civil Liberties Union filed briefs in support of Redmond, pointing to decades of data showing how cannabis odor claims were disproportionately used to justify searches of minority motorists.

“There is a decades-long pattern of police in this state using pretext like cannabis odor to disproportionately stop and search Black and Latino drivers,” the ACLU argued in its brief.

According to mandatory annual reports from the Illinois Department of Transportation, Illinois police officers stopped Black drivers at 1.7 times the rate of white drivers and stopped Latino drivers at a rate of 1.11 times as white motorists in 2023.

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Attorney General Kwame Raoul’s office argued against this change, contending that the smell of cannabis should still be grounds for probable cause because of laws requiring marijuana to be transported in sealed, odor-proof containers.

In its brief, the attorney general's office argued that the smell of marijuana, whether raw or burnt, still provided probable cause to police.

But under questioning from the justices, Assistant Attorney General Mitchell Ness conceded that burnt cannabis was not sufficient to provide probable cause for a search.

"OK, so burnt cannabis, you're stopped and the officer smells burnt cannabis," Justice Lisa Holder White asked Ness. "Your argument is that that alone is insufficient to search the vehicle?"

"I think that's correct, though it's not necessarily before this court," Ness said.

Although Trooper Combs contended that Interstate 80 between Des Moines and Chicago is a "drug corridor," the attorney general's office abandoned that argument, which a lower court judge found "unpersuasive," according to the ruling in the Redmond case.

The court did not rule on a separate case, People v. Molina, which challenges the state's odor-proof container requirement.

In January, the court heard oral arguments on both Redmond and Molina's cases together.

The high court's 20-page ruling in the Redmond case brings Illinois into line with several other large states — among them Minnesota, Delaware and New Jersey — where judges have determined that the smell of weed does not automatically indicate criminal activity post-legalization.

Related: Illinois Has Most Expensive Legal Marijuana, 89% Higher Than Rest Of In U.S., Report Finds