Cannabis Smell Alone Is Not Probable Cause to Search Vehicles: Illinois Supreme Court

Marijuana plants in a file image. Ulises Ruiz/AFP via Getty Images

Law enforcement needs more than the smell of burnt cannabis to search vehicles, the Illinois Supreme Court said in a unanimous decision on Sept. 19.

“Based on our precedent and the state of cannabis laws at the time of the search, we hold that the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle,” Illinois Supreme Court Justice P. Scott Neville wrote in the 20-page ruling.

The opinion stems from a traffic stop on Sept. 15, 2020. A state police officer who stopped a man named Ryan Redmond said he detected the smell of burnt cannabis when approaching the vehicle. After Redmond failed to provide his license and registration, the officer asked him to exit the vehicle. The officer then found Redmond’s license information online and learned the car was a rental. The officer proceeded to search the vehicle, primarily because of the smell of marijuana and partly because Redmond was driving on a road known as a “drug corridor.”

In 2022, the Illinois Third District Appellate Court ruled that the search was improper.

“It is not reasonable to assume that all persons driving or riding in vehicles—including rented vehicles—traveling on such a major interstate highway are involved in narcotics-related activities. Combs’s claim, if taken to its logical conclusion, would essentially subject every vehicle traveling on Interstate 80 to a search for narcotics,” Appellate Justice Mary McDade wrote for the court. “The United States and Illinois Constitutions do not give the police such unfettered and unreasonable access to the innocent activities of citizens or the unknown contents of people’s vehicles.”

The state appealed the court’s decision, resulting in Thursday’s ruling.

The Illinois Supreme Court said that Redmond had likely been in the car for an extended period, and because the smell of cannabis remained in the car after Redmond was removed, it supports “a reasonable suspicion that he had smoked cannabis in the car at some point.” However, Combs observed no signs of impairment, nor did he find any drug paraphernalia or evidence of cannabis use inside the vehicle.

The Illinois Supreme Court said that the fact the officer did not smell the odor on Redmond after he exited the vehicle “undercuts the reasonable belief that Redmond had recently smoked cannabis inside the vehicle while on an Illinois highway,” Neville said.

While the state said Redmond’s not providing his license or registration supported searching the vehicle, justices disagreed in part because the officer was able to find his license on an online database.

The officer also cited his perception that Redmond did not provide direct answers to questions about where he lived or why he was driving from Des Moines, Illinois, to Chicago. Redmond told the officer he lived in Chicago but was staying in Des Moines due to the COVID-19 pandemic.

However, even if he did fail to give direct answers on his living arrangements, that “did not make it any more likely, alone or along with the other evidence, that Redmond’s car contained contraband or evidence of a crime,” Neville wrote.

The opinion concluded that the “totality of the facts and circumstances” known to the officer did not provide probable cause to search Redmond’s vehicle. It affirmed the appeals court’s decision regarding the suppression of evidence seized during the warrantless search.

Supreme Court Justice Lisa Holder White did not participate in the consideration of the case or the decision, according to the court.