Historically in Illinois, the odor of cannabis from a vehicle, without any additional corroboration, was sufficient probable cause for a warrantless search. People v. Stout, 106 Ill.2d 77, 88 (1985). This all changed through the legalization and decriminalization of certain amounts of cannabis beginning in 2013 (Compassionate Use of Medical Cannabis Pilot Program Act) and most recently in 2020 (Cannabis Regulation and Tax Act). Specifically, pursuant to the act, it is no longer illegal for an Illinois resident over the age of 21 to use and possess up to 30 grams of cannabis. No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this state and no driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. 625 ILCS 5/11-502.15(a) and (b)
The Odor of Burnt Cannabis
The Illinois Supreme Court revisited probable cause for the warrantless search of a vehicle, based upon the odor of burnt cannabis without any additional corroboration in September of 2024 in People v. Redmond, 2024 IL 129201 (2024). In Redmond, the court addressed how the changes in Illinois Cannabis laws affected the ability of an officer to have probable cause to search a vehicle. The court noted from the circuit court’s decision, that “the smell of burnt cannabis could persist even if possessed and used wholly within the bounds of Illinois law, [therefore] the smell of burnt cannabis standing alone could not constitute probable cause for a warrantless vehicle search.” The court adopted a totality of the circumstances test where the odor of burnt cannabis alone could be a factor in the probable cause analysis, but insufficient to justify a warrantless search without other corroborating factors.
The Odor of Raw Cannabis
Three months later, the Illinois Supreme Court again revisited probable cause for the warrantless search of a vehicle, this time based upon the odor of raw cannabis without any additional corroboration. People v. Molina, 2024 IL 129237 (2024). In Molina, officer Wagand stopped a car for speeding and conducted a search of the vehicle based solely upon the odor of raw cannabis. Officer Wagand suspected that there was cannabis in the vehicle that was not stored in a sealed, odor-proof, child-resistant cannabis container, in violation of 625 ILCS 5/11-502.15(c) In holding that the odor of raw cannabis alone is sufficient to establish probable cause, the court reasoned that unlike burnt cannabis, which may suggest prior or current use, the odor of raw cannabis suggest that cannabis is currently possessed in violation of the prohibition of requirement that it be stored in a sealed, odor-proof, child-resistant cannabis container. “Therefore, the two distinct odors cannot be treated as equals in a probable cause analysis.” Justice O’Brien, in her dissent points out that it defies logic to conclude that an odor that indicates consumption or use does not suggest the reasonable probability of a crime while an odor that indicates simply the transport of that same substance does. She further argues, “Organic matter smells. That is a matter of common sense. It can easily permeate one’s hair and clothing in a manner similar to a burnt compound of the same material… A person coming into contact with raw cannabis… would also carry that odor with him for a period of time even if the person did not possess the raw cannabis on his person or in his vehicle in violation of the odor-proof requirement.”
What’s Next?
In both Redmond and Molina, the Supreme Court recognized that what does or does not establish probable cause is dependent upon the laws made by the General Assembly. “We are mindful that the legislature has considered amending the Vehicle Code, but it might also consider amending the Regulation Act, as both statutes govern how an individual may possess cannabis within a motor vehicle on an Illinois highway.” Molina at ¶59 On January 13, 2025, Sen. Rachel Ventura (D-Joliet) filed Senate Bill 42, which would amend the Vehicle Code to remove the odor-proof container requirement and establish that the odor of cannabis, whether burnt or raw, is not probable cause to search a vehicle. Until then, it will be incumbent upon law enforcement to decipher the difference between the odor of raw and burnt cannabis.