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SPRINGFIELD, Ill. (CN) — The Illinois Supreme Court issued a landmark state ruling on Thursday when it decided that law enforcement cannot use burnt cannabis odor, by itself, as a basis to search vehicles without a warrant.
“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 opinion.
The ruling comes four years after a police search near the Iowa border sparked debate on the issue in state courts.
Per court filings, Illinois State Police officer Hayden Combs conducted a search of driver Ryan Redmond’s vehicle in September 2020 in northwestern Illinois’ Henry County. By that time, recreational cannabis possession had already been legal in Illinois, with some restrictions, for over seven months.
Combs said he pulled Redmond over for speeding and an for an insecure license plate, and searched the car after smelling burnt cannabis coming from the passenger side window. He found a single gram of cannabis in a plastic bag.
Combs later testified that Redmond showed no signs of being intoxicated, and that he didn’t smell marijuana on Redmond himself. The state nevertheless charged him with misdemeanor illegal cannabis possession.
Redmond moved to suppress the gram of cannabis as evidence when his case went to court, a motion a Henry County circuit judge approved and the state then appealed. But the state appellate court affirmed the lower court’s decision.
Combs testified that he was suspicious of Redmond because he was travelling from Chicago to Des Moines along Interstate 80 — “a known drug corridor,” according to the officer — but neither court found this was probable cause to conduct a warrantless search. The appellate court in particular considered this argument a red herring.
“While Combs claimed Interstate 80 was a ‘known drug corridor,’ Combs acted on a suspicion of Redmond having smoked cannabis in a vehicle, not that he was a drug courier,” Illinois Appellate Justice Mary McDade wrote in a November 2022 ruling. “Further, 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 this assertion.
“Combs … did not smell the odor of burnt cannabis on Redmond, which undercuts the reasonable belief that Redmond had recently smoked cannabis inside the vehicle while on an Illinois highway,” Neville wrote.
He also cited similar rulings from other states. The Kansas Supreme Court ruled in 2014, for example, that the smell of alcohol alone did not justify a vehicle search. Last year, the Minnesota Supreme Court also barred police from searching vehicles based on cannabis odor alone, though it conceded police could take the smell into account along with other evidence when trying to justify a search.
“The Minnesota Supreme Court’s ruling comports with several recent decisions from other states that have reduced or eliminated criminal penalties for cannabis possession and use,” Neville added, citing decisions out of Pennsylvania and Massachusetts.
The state high court heard arguments on Redmond’s case in January, together with arguments in a similar case against Illinois driver Vincent Molina.
The American Civil Liberties Union of Illinois and the National Association of Criminal Defense Lawyers supported both drivers with a joint amicus brief highlighting how police disproportionately carried out cannabis odor searches on Black and Latino peoples’ vehicles.
“Pretextual traffic stops — those conducted for investigatory purposes and not for roadway safety — are a primary policing tool that drives … racial and ethnic disparities. The alleged odor of cannabis is one of the most common pretexts that police use for stopping and searching drivers, especially drivers of color. This is true despite the fact that white people and people of color tend to use and possess cannabis at similar rates,” the groups wrote in their amicus brief.
Alexandra Block, director of the Illinois ACLU’s Criminal Legal System & Policing Project, reiterated that point to Courthouse News on Thursday evening, She added that the court had yet to rule on Molina’s case — which dealt with raw cannabis odor as cause for a search, rather than burnt cannabis odor.
Block nevertheless celebrated the Supreme Court’s ruling Thursday as a “step in the right direction.”
“We welcome the Supreme Court’s ruling. We hope that it will stop more police from conducting pretextual traffic stops,” she said.
The high court’s ruling was a unanimous 6- decision, though Republican Supreme Court Justice Lisa Holder White did not take part in it.
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