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Criminal Law FLASHPOINTS October 2024

Matthew R. Leisten, Ogle County State’s Attorney’s OfficeOregon
815-732-1170 | E-mail Matthew R. Leisten

Illinois Supreme Court Rules: Smell of Cannabis Alone No Longer Provides Probable Cause for Vehicle Search

In People v. Redmond, 2024 IL 129201, the Illinois Supreme Court held that the smell of cannabis by itself no longer permits the police to search a vehicle, overruling its previous holding in People v. Stout, 187 Ill.2d 77, 718 N.E.2d 58, 240 Ill.Dec. 577 (1987).

In Redmond, an Illinois State Police officer pulled the defendant over for speeding and driving with an improperly secured license plate on Interstate 80 in September 2020. 2024 IL 129201 at ¶8. The officer smelled burnt cannabis emitting from the vehicle during the traffic stop; however, the defendant denied smoking cannabis. Id.

The officer did not see any cannabis in plain view; nor did he see anything that was lit or emitting the cannabis odor. The officer could not recall whether he smelled cannabis on the defendant’s person, and he did not detect any signs of impairment when he spoke to the defendant. 2024 IL 129201 at ¶9.

The officer testified that he searched the vehicle because of the odor of burnt cannabis; because of the defendant’s evasive answers about where he lived; because Interstate 80 was a “known drug corridor”; and because the defendant admitted he was driving from Des Moines to Chicago, both of which were known “hub[s] of criminal activity” according to the officer. 2024 IL 129201 at ¶11. The officer located one gram of cannabis in the center console. Id.

The trial court granted the defendant’s motion to suppress, and the appellate court affirmed. 2024 IL 129201 at ¶¶12, 16.

The Supreme Court analyzed the evolution in state cannabis laws since 2013, in which small amounts were decriminalized, medical cannabis was approved, and prohibitions were put into place against traveling with cannabis not secured in a sealed container. 2024 IL 129201 at ¶¶33 – 43.

The court noted that cannabis laws have changed in such drastic ways that they now rendered the smell of burnt cannabis standing alone insufficient to provide probable cause to search a vehicle. Since the use and possession of cannabis could be legal or illegal depending on the situation, the court held that the odor of burnt cannabis in a vehicle is no longer a sufficient inculpatory fact about who used it, when it was used, or where it was used. 2024 IL 129201 at ¶¶46 – 47.

The court overruled its holding in Stout, which had held that the smell of cannabis, standing alone, permitted the police to conduct a warrantless search of a vehicle. 2024 IL 129201 at ¶54. However, the smell of cannabis still remains a factor when determining whether the police have probable cause to search a vehicle. Id.

The court rejected the state’s argument that the defendant was violating state law by using cannabis in the vehicle or failing to secure the cannabis in a sealed and inaccessible container. The court stated that the officer did not observe any signs of impairment when he spoke to the defendant, nor did he see any signs of cannabis use or paraphernalia in the vehicle. The officer also did not smell cannabis on the defendant, “which undercut[ ] the reasonable belief that Redmond had recently smoked cannabis inside the vehicle while on an Illinois highway.” 2024 IL 129201 at ¶60.

Although the officer’s detection of the strong odor of cannabis emitting from the vehicle established reasonable suspicion to investigate further whether the defendant violated the Illinois Vehicle Code (prohibiting using cannabis while driving and prohibiting transporting cannabis that is not in a sealed, odorless, and remotely inaccessible container), when the investigation did not establish any further inculpatory facts, then the reasonable suspicion never developed into probable cause to search the vehicle. 2024 IL 129201 at ¶63.

Finally, the Supreme Court left open whether the officer acted in good faith when he searched the vehicle because the state did not argue good faith in the trial court or appellate court proceedings. 2024 IL 129201 at ¶64.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE®, 2024). 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.

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