The State of Illinois has a circuit court split on whether the odor of cannabis supplies probable cause to search a vehicle. The lack of consensus on the state of the law post-legalization of marijuana has had a significant impact on individuals and their right to be free from unreasonable searches.
Probable Cause Searches and the Odor of Cannabis in 2024
There is a split in the Illinois appellate courts about what effect legalization has on searches based on the odor of cannabis.
The Illinois Supreme Court granted leave to appeal to resolve the issue under Illinois law. See People v. Molina, 2023 WL 2751668 (Ill. 2023) (granting petition for leave to appeal and consolidating case with People v. Redmond, 2023 WL 2749120 (Ill. 2023)).
Oral arguments were heard January 10, 2024.
Concerns in Allowing the Odor of Cannabis to Supply Probable Cause to Search
- The potential racial impact of allowing odor, alone, to establish probable cause to search a vehicle.
- The duration of odor in vehicle, on clothing, or in hair.
- There is no way to corroborate police officers’ allegations that they smell the odor of (burnt or raw) cannabis without being present.
The Fourth Amendment, Automobiles, and the Odor of Cannabis
The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures without a warrant or probable cause.
However, the automobile reception for the warrant requirement of the Fourth Amendment applies to searches of vehicles supported by probable cause.
What is Probable Cause?
Probable cause is the reasonable belief that evidence of a crime will be found in the person or place to be searched or where there is reasonable basis for believing that a crime has been committed.
Probable Cause Searches
A search is reasonable if the objective facts would support an issuance of a warrant given the totality of the circumstances.
The scope of a search is limited to where there is a fair probability that contraband or other evidence of a crime will be found in a particular place. An officer’s experience and training in the detection of controlled substances, including when an officer detects the odor of cannabis, can support probable cause. People v. Stout, 106 Ill.2d 77, 86 (Ill. 1985).
The History of Cannabis Legislation in Illinois
1985:
- Possession by any person of any amount of cannabis was a criminal offense.
2013:
- First piece of legislation leading to the decriminalization and legalization of cannabis possession and use.
- Compassionate Use of Medical Cannabis Pilot Program Act, which legalized the use and possession of cannabis by licensed medical users
2016:
- General Assembly amended section 4 of the Cannabis Control Act, decriminalizing the possession of less than 10 grams of cannabis and making it a civil violation punishable only by a fine.
2019:
- Cannabis Regulation and Tax Act, which legalized the possession of marijuana for recreational adult use.
- Also regulated the manner in which users transport cannabis.
Proposed Legislation: S.B. 125
Senate Bill No. 125 was introduced January 24, 2023.
This proposed amendment would modify the Illinois Vehicle Code:
The odor of burnt or raw cannabis in a motor vehicle by itself shall not constitute probable cause for the search of a motor vehicle or a person. 2023 IL S.B. 125
However, this legislation has yet to be enacted, so it is not controlling law in the State of Illinois.
A Timeline of the Case Law
People v. Stout, 106 Ill.2d 77 (Ill. 1985)
- Odor of cannabis = probable cause to search a vehicle.
People v. Hill, 2020 IL 124595
- Illinois Supreme Court chose not to overrule Stout.
People v. Stribling, 2022 IL App (3d) 210098
- The odor of burnt cannabis, alone, is not enough to establish probable cause to search a vehicle (Third District Appellate Court).
People v. Redmond, 2022 IL App (3d) 210524
- The odor of burnt cannabis + corroborating factors required for probable cause to search a vehicle (Third District Appellate Court).
People v. Molina, 2022 IL App (4th) 220152
- The odor of raw cannabis, without corroborating factors, is sufficient to establish probable cause to search a vehicle (Fourth District Appellate Court).
Final Thoughts
The Illinois Supreme Court has yet to issue a ruling on this issue, so the State remains divided by district. It is anticipated the opinion will be published in the coming months. As of right now, it is unclear what the impact of this future ruling will be.
What does this mean?
If you have been arrested and charged with a crime due to an officer smelling the odor of cannabis in your car, contact Schierer & Ritchie, LLC, where the criminal defense attorneys are dedicated to protecting and defending your rights.