Illinois Supreme Court: Odor of Burnt Cannabis Does Not Justify Warrantless Vehicle Search

The Illinois Supreme Court ruled last week that the odor of burnt cannabis alone cannot be used to search vehicles without a warrant, Courthouse News Service reports. In the opinion, Illinois Supreme Court Justice P. Scott Neville ruled that based on prior, pre-legalization court precedent, “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.” 

The ruling stems from a police search in September 2020 near the Iowa border, during which an Illinois State Police officer conducted a vehicle search during a traffic stop. Cannabis had already been legalized in Illinois for seven months. During the stop, the officer found one gram of cannabis in a plastic bag and charged the driver with misdemeanor illegal cannabis possession.  

A Henry County Circuit Court judge approved a motion to suppress the gram of cannabis as evidence, a decision upheld by the state appellate court. The trooper argued that the driver was in “a known drug corridor” and therefore suspicious, and said the probable cause was an insecure license plate. 

In a 2022 ruling, Illinois Appellate Justice Mary McDade said the officer didn’t pull over the driver for the license plate or that he suspected he was a drug courier, rather on suspicion that the driver had smoked cannabis in a vehicle. McDade ruled that “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.” 

The Illinois Supreme Court agreed with that decision, ruling the officer “did not smell the odor of burnt cannabis” on the driver “which undercuts the reasonable belief that [the driver] had recently smoked cannabis inside the vehicle while on an Illinois highway.”  

The decision cited similar rulings out of Minnesota and Pennsylvania and another in Kansas that focused on the odor of alcohol.