Matthew Chivari, Chivari P.C., Chicago
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Does the Odor of Cannabis Establish Probable Cause To Search a Vehicle in Illinois?
On January 25, 2023, in People v. Hall, 2023 IL App (4th) 220209, ¶24, the Illinois Fourth District Appellate Court held that probable cause to search a vehicle existed based on the odor of raw cannabis along with a front seat passenger’s admission to the possession of a small amount of cannabis. The Hall court went a step further, however, stating that “even without the front seat passenger’s admission, probable cause still existed to search the vehicle” — that is, the odor of (raw) cannabis alone is enough to establish probable cause to search a vehicle. 2023 IL App (4th) 220209 at ¶27. In doing so, the Fourth District solidified a split with the Third District Appellate Court on this issue.
In two recent decisions, the Third District has taken the opposing view and held that the smell of (burnt) cannabis, without any corroborating factors, is not sufficient to establish probable cause to search a vehicle. See People v. Redmond, 2022 IL App (3d) 210524; People v. Stribling, 2022 IL App (3d) 210098.
The Fourth District’s Hall decision comes in the wake of a series of recent changes in the law regarding cannabis possession. To better understand the import of the Fourth District’s Hall decision and the ongoing split between the Third and Fourth districts on the issue of whether the odor of cannabis alone is sufficient to establish probable cause to search a vehicle, it will be helpful to briefly summarize the recent changes to cannabis law and two Illinois Supreme Court decisions addressing this issue.
A Brief Synopsis of Cannabis Law
The use and possession of marijuana was first criminalized in Illinois in 1931 under the Narcotic Drug Control Law, Ill.Rev.Stat. (1931), c. 38, ¶22-1, et seq. In 1978, the Cannabis Control Act (Ill.Rev.Stat. (1977), c. 56½, ¶701, et seq.; now codified at 720 ILCS 550/1, et seq.) established the penalties for cannabis-related offenses. Additionally, any amount of cannabis in a person’s blood or urine while driving was enough to bring charges of driving under the influence of drugs. 625 ILCS 5/11-501.2 (1994).
The cannabis landscape began to change in 2013 with the passage of the Compassionate Use of Medical Cannabis (Pilot) Program Act, 410 ILCS 130/1, et seq., which allowed individuals with certain debilitating medical conditions to legally purchase and possess cannabis. In 2016, P.A. 99-697 took the first steps to decriminalize cannabis. P.A. 99-697, §40 (eff. July 29, 2016) (amending 720 ILCS 550/4). For example, under P.A. 99-697, the penalty for possession of 10 grams or less of cannabis was reduced from a misdemeanor to a civil violation punishable by a fine instead of jail time. 720 ILCS 550/4 (2016). Additionally, the possession of 10 to 30 grams became a Class B misdemeanor and the possession of 30 to 100 grams a Class A misdemeanor. Id. Felony penalties for the possession of larger quantities also changed. Id. Similarly, P.A. 99-697 also specified the threshold amount of cannabis in an individual’s blood or urine that would suffice to levy charges for driving under the influence of drugs. 625 ILCS 5/11-501.2(a) (2016).
In June 2019, the Illinois legislature amended §11-502.1 of, and added §11-502.15 to, the Illinois Vehicle Code, allowing the transport of medical and recreational cannabis if it is placed in a “sealed, odor-proof, and child-resistant” cannabis container. 625 ILCS 5/11-502.1 (2020) (amended by P.A. 101-27, §900-38 (eff. June 25, 2019)), 5/11-502.15 (2020) (added by P.A. 101-27, §900-38 (eff. June 25, 2019)).
As of January 1, 2020, Illinois became the eleventh state to legalize marijuana for adult, recreational use. The Cannabis Regulation and Tax Act, 410 ILCS 705/1-1, et seq., allows Illinois residents 21 years of age or older to possess as much as 30 grams of cannabis, 500 milligrams of tetrahydrocannabinol (THC) in a cannabis-infused product, and 5 grams of cannabis concentrate. 410 ILCS 705/10-10. Possession of larger quantities and the delivery of any amount remains illegal and subject to penalties. 720 ILCS 550/4(a), 550/4(b).
The Illinois Supreme Court’s Position
Two Illinois Supreme Court decisions underlie the issue of whether the odor of cannabis (burnt or raw) alone gives an arresting officer probable cause to conduct a warrantless search of a vehicle. In People v. Stout, 106 Ill.2d 77, 477 N.E.2d 498, 502 – 503, 87 Ill.Dec. 521 (1985), the Illinois Supreme Court held that if a trained and experienced police officer detects the odor of burnt cannabis emanating from a vehicle, the odor alone establishes probable cause to search a vehicle; no additional corroborating evidence is needed. Following the Stout decision, Illinois courts continued to hold that the odor of burnt or raw cannabis emanating from a vehicle, and detected by an officer trained and familiar with the detection of controlled substances, provides probable cause to search the vehicle. See People v. Rice, 2019 IL App (3d) 170134, 125 N.E.3d 546, 429 Ill.Dec. 840; People v. Smith, 2012 IL App (2d) 120307, 982 N.E.2d 234, 367 Ill.Dec. 556; People v. Sims, 2022 IL App (2d) 200391.
In 2020, the Illinois Supreme Court again addressed the odor of cannabis and the automobile exception in People v. Hill, 2020 IL 124595, 162 N.E.3d 260, 443 Ill.Dec. 626. In Hill, an officer approached a curbed vehicle and, when the vehicle’s window was rolled down, smelled a strong odor of raw cannabis. 2020 IL 124595 at ¶5. Although the defendant denied having any, or having recently smoked, cannabis, the officer observed “a bud” in the back seat. 2020 IL 124595 at ¶¶9 – 10. The officer searched the vehicle and found a small amount of cannabis. 2020 IL 124595 at ¶7. The defendant filed a motion to suppress, which was granted by the circuit court. 2020 IL 124595 at ¶11. The appellate court reversed, finding that the smell of cannabis established probable cause to search. 2020 IL 124595 at ¶12.
Before the Supreme Court, the defendant argued that the legalization of medical cannabis and the decriminalization of smaller amounts of cannabis altered the police officer’s power to conduct a warrantless search based solely on the detectable odor of raw cannabis. 2020 IL 124595 at ¶15. The court agreed that, based on recent legislation, cannabis was no longer contraband in every instance. 2020 IL 124595 at ¶32. However, the court noted that, under current law, medical marijuana users, when transporting medical cannabis in a vehicle, must keep the cannabis in a sealed, tamper-evident container. 2020 IL 124595 at ¶34. The Hill court ultimately held that the officer had probable cause to search the defendant’s vehicle because he saw a loose bud in the back seat and detected a strong odor of cannabis, which, taken together, suggested that cannabis was in the vehicle and likely not properly contained. 2020 IL 124595 at ¶35.
The Hill court, given the presence of corroborating evidence, chose not to consider the validity of Stout. 2020 IL 124595 at ¶18. Although it did not take up the issue as to whether the odor of cannabis alone was enough to establish probable cause, the court did state that “the smell and presence of cannabis undoubtedly remains a factor in a probable cause determination.” 2020 IL 124595 at ¶18 n.2.
Hall and the Fourth District
The Fourth District has repeatedly recognized that, despite recent changes in cannabis-related legislation, Stout and Hill were not rendered invalid. Hall, supra, 2023 IL App (4th) 220209 at ¶22. Following suit with Stout, the Fourth District has consistently held that the smell of cannabis, without any corroborating evidence, is sufficient to establish probable cause to search an individual’s vehicle. Hall becomes the latest of such decisions.
In Hall, a police officer curbed the defendant’s vehicle and detected the odor of raw cannabis coming from the vehicle, which grew stronger as she walked closer to the vehicle. 2023 IL App (4th) 220209 at ¶7. Upon exiting the vehicle, the passenger admitted to possessing a small amount of cannabis, after which the officer searched the passenger and the vehicle’s front passenger area, finding cannabis. Id. As the officer searched the vehicle’s back seat, the defendant admitted that an “orange container with personal use cannabis” would be found. 2023 IL App (4th) 220209 at ¶8. The officer found the container, which contained a small amount of cannabis. Id. The cannabis was not contained in an odor-proof container as required by law. Id., citing 625 ILCS 5/11‑502.1.
Defense counsel argued that while the odor indicated the presence of cannabis, cannabis was no longer inherently illegal in light of recent legislation. 2023 IL App (4th) 220209 at ¶9. Defense counsel further analogized the odor of cannabis to that of alcohol, noting that the odor of alcohol alone does not justify a warrantless vehicle search during a DUI investigation. Id. The state argued that cannabis possession remained subject to several regulations, including the requirement that it be transported in an odor-proof container. 2023 IL App (4th) 220209 at ¶10.
The circuit court acknowledged the Illinois Supreme Court’s holding in Stout but “asserted the central question . . . was whether Stout remained good law” after recent changes in cannabis-related law. 2023 IL App (4th) 220209 at ¶11. Reasoning that it could not find any reason to consider cannabis differently from alcohol, the circuit court granted the defendant’s motion to suppress. Id. The state appealed. 2023 IL App (4th) 220209 at ¶12.
The Fourth District Appellate Court cited Stout and Hill’s declined opportunity to overturn Stout. 2023 IL App (4th) 220209 at ¶¶17 – 18. Arguing that Stout and Hill therefore remained binding precedent, the Fourth District held that the officer had probable cause to search the vehicle since she smelled the odor of cannabis and one of the vehicle’s occupants had admitted to possessing cannabis. 2023 IL App (4th) 220209 at ¶24. Therefore, probable cause existed based on more than just the detectable odor or cannabis alone, akin to Hill. Id. Nonetheless, the Fourth District went a step further, finding that had the officer relied solely on the odor of cannabis to provide probable cause, probable cause would still have been present. 2023 IL App (4th) 220209 at ¶25. First, as the Fourth District reasoned, there were important regulatory differences between cannabis and alcohol. 2023 IL App (4th) 220209 at ¶26. Second, Stout allowed for probable cause based on the odor of cannabis alone. 2023 IL App (4th) 220209 at ¶27. Based on this reasoning, the Fourth District reversed and remanded. 2023 IL App (4th) 220209 at ¶30. The Hall decision is consistent with other recent Fourth District decisions. See People v. Molina, 2022 IL App (4th) 220152; People v. Rowell, 2021 IL App (4th) 180819, 182 N.E.3d 806, 450 Ill.Dec. 994.
The Third District
The Third District sees things differently.
In November 2022, the Third District held in People v. Redmond, 2022 IL App (3d) 210524, ¶26, that the odor of burnt cannabis alone was insufficient to support probable cause to conduct a warrantless vehicle search. In Redmond, the police officer smelled a strong odor of burnt cannabis when the defendant rolled down the window of his curbed vehicle. 2022 IL App (3d) 210524 at ¶4. The officer did not observe any corroborating evidence to warrant a search, however. 2022 IL App (3d) 210524 at ¶¶4 – 8. The circuit court granted the defendant’s motion to suppress, concluding that “[a] person could exercise his statutory right to possess and consume cannabis only to give up his rights under the Fourth Amendment with no evidence that he possessed or consumed cannabis illegally.” 2022 IL App (3d) 210524 at ¶11. As the Third District reasoned, the state’s argument to the contrary “ignore[d] the impact of subsequent changes in the underlying law.” 2022 IL App (3d) 210524 at ¶18. Given the changes in the law regarding cannabis possession, as the appellate court continued, cases such as Stout, which “interpreted the law when all cannabis possession was illegal,” are “no longer applicable.” Id.
In September 2022, the Third District reached the same decision in People v. Stribling, 2022 IL App (3d) 210098. In Stribling, the police officer curbed the defendant’s vehicle and noticed the odor of cannabis. 2022 IL App (3d) 210098 at ¶4. Based on the odor and the defendant’s admission that someone had smoked inside the vehicle “a long time ago,” the officer searched the vehicle. Id. In affirming the circuit court’s granting of the defendant’s motion to suppress, the Third District held that the odor of burnt cannabis, without any corroborating evidence, is not enough to establish probable cause to search the vehicle. 2022 IL App (3d) 210098 at ¶29. As in Redmond, the Third District noted that Stout is “no longer applicable to postlegalization fact patterns.” Id.
Although declaring the inapplicability of Stout, in both Redmond and Stribling, the Third District asserted that their decisions remain consistent with the Illinois Supreme Court’s decision in Hill. Redmond, 2022 IL App (3d) 210524 at ¶21; Stribling, 2022 IL App (3d) 210098 at ¶29.
Although Stout remains intact, challenges to that decision, such as those from the Third District, are likely to continue and may soon give rise to an opportunity for the Illinois Supreme Court to reconsider the Stout holding and settle the burgeoning split. Until that time, defendants subject to warrantless vehicle searches that were predicated on a detectable odor of cannabis may find their capacity to challenge their searches dictated by on whichever side of the issue their district happens to fall.
For more information about criminal law, see DEFENDING CRIMINAL CASES: TRIALS, SENTENCING, APPEALS, AND POSTTRIAL ISSUES (IICLE®, 2022). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.