An issue that has tied lower courts in knots — whether the odor of cannabis alone is grounds for police to search a vehicle — is now before the Illinois Supreme Court.
Appellate courts have split over the question, forcing the high court to make the call. At issue are efforts to keep the roads safe and prevent illegal trafficking, while protecting a constitutional right against unreasonable searches.
Before legalization, courts had long held that the smell of marijuana was grounds for a search, defense attorney James Mertes conceded during arguments before the Supreme Court earlier this month. But Mertes argued that once possession of small amounts of recreational pot became legal under state law in 2020, smell no longer is per se evidence of a crime.
“The odor of cannabis is now an aroma of legality,” Mertes told the high court.
Prosecutors countered that state law makes it illegal to transport cannabis without a sealed, odor-proof container, and it’s still illegal to get or be high while driving.
In a somewhat unusual circumstance, the court consolidated two new cases with opposite appellate rulings on the issue.
In Henry County in 2020, a state trooper stopped Ryan Redmond driving a Kia SUV for having a dangling license plate and driving 3 mph over the speed limit on Interstate 80 in western Illinois. The trooper testified that I-80 is a “known drug corridor” connecting known hubs of criminal activity in Des Moines, Iowa, and Chicago.
The trooper testified that he smelled a strong odor of burnt cannabis coming from the vehicle. When he searched it, he found about a gram of pot — enough for a couple of joints. Redmond was charged with misdemeanor possession.
The trial judge ruled that the smell alone was not sufficient probable cause to believe a crime was committed, and therefore not enough to justify a search. Otherwise, Circuit Court Associate Judge Daniel Dalton ruled, a person who exercised the state law right to possess and smoke cannabis would give up his right to be protected from unreasonable searches.
Dalton dismissed the charges, and the 3rd District appellate court upheld that ruling.
But in Whiteside County, also in 2020, a state trooper said he smelled raw cannabis in a motor vehicle, and upon searching it found a small cardboard box with several rolled joints inside, and a plastic container in the glove box with suspected cannabis inside. The passenger, Vincent Molina, who is Mertes’ client, was charged with possession, and the same judge, Dalton, threw out the case.
The judge presides over multiple counties, parts of which are overseen by different appellate courts.
The 4th District Appellate Court overturned the ruling in the Molina case, noting that despite the legalization of small amounts of cannabis under state law, a person still may not use marijuana while driving or drive while impaired.
In hearing oral arguments this month, Chief Justice Mary Jane Theis’ questions focused primarily on impaired driving.
“There’s a real concern that I think everyone embraces, that we don’t want people who are really really high driving down our highways,” she said. “We’re very worried about that.”
Defense attorney Bruce Carmen conceded that concern, but said in the case of Redmond, his client, there were no signs of impairment, noting that the smell of pot can cling to clothes long after smoking. Just as the smell of alcohol alone is not sufficient for a search, officers may consider it and conduct a field sobriety test or question the driver to see if there is any other evidence of a crime.
Justice P. Scott Neville also questioned whether the smell of cannabis alone would justify a search of a person walking down the street.
Historically, there has also been a racial disparity in vehicle searches.
Police in Illinois were three times more likely to attempt searches of Black drivers compared with white drivers, though black drivers had contraband only half as often as whites, the state Department of Transportation found in a 2006 study. The matter before the Supreme Court involves two minority defendants: Redmond is African American and Molina is Latino.
The justice system has to be careful, Carmen said, to make sure that such searches are not just a pretext for a fishing expedition without legal justification.
Prosecutors for Illinois Attorney General Kwame Raoul suggested that the circumstances may affect searches for smoked cannabis, but that the smell of raw cannabis alone suggests a violation of the vehicle code requirement to have it in a sealed, odor-proof container.
“Possible innocent explanations do not mean there is not probable cause (for a search),” Ness said.
Some state supreme courts, in Minnesota, New Jersey and Pennsylvania, have ruled that a cannabis odor does not justify a search, while the high court in Wisconsin, where pot remains illegal, ruled it was grounds for a search.
Last year, state Sen. Rachel Ventura, a Democrat from Joliet, introduced a bill to prohibit police from searching a vehicle based on an odor of burnt or raw cannabis alone.
The measure passed the Senate and is before the House, but Ventura told the Tribune she’s holding off on the bill to see what the court does.
Constituents and even another lawmaker had complained about getting stopped and searched by police who said they smelled marijuana but found nothing, Ventura said.
“Cannabis is a legal substance in Illinois,” she said, “so we should stop treating it as if it’s evidence that the person has done something wrong.”
Police still generally may search a vehicle without a warrant if the driver gives them permission, or if they take possession of the vehicle after an arrest, accident or tow, and conduct an “inventory search.”