A hand holds a marijuana joint in a file photo. (Tunatura / iStock)

The stench of smoked pot doesn’t give a police officer the right to search an adult’s car without a warrant, according to a new ruling from the Illinois Supreme Court.

The searches were allowed when marijuana was illegal in the state. But in a 6-0 opinion issued Thursday, justices say that changed when it became legal for adults in Illinois to use cannabis due to a change in state law.

“Since Jan 1, 2020, the use and possession of cannabis is presumptively lawful, subject to certain restrictions,” Justice Scott Neville wrote in deciding the case (The People v. Redmond). “We hold that the odor of burnt cannabis, alone, is insufficient to provide probably cause of police officers to perform a warrantless search of a vehicle.”

Still unresolved is how far police can go if they smell raw cannabis, in potential breach of a state law that requires cannabis to be stored in an odorless container when a car is moving.

However, Thursday’s ruling resolves conflicting lower court opinions dealing with the smell of burnt cannabis, and clarifies when law enforcement can conduct a search when they catch a whiff that indicates prior use of pot.

A police officer may legally conduct a warrantless search if a car reeks of pot and other factors are at play, the court indicated.

“The odor of burnt cannabis is a fact that should be considered when determining whether police have probably cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probably cause to search a vehicle,” Neville wrote.

Other factors at play weren’t sufficient reason in the case before the state’s high court, which saw Illinois State Police Officer Hayden Combs search Ryan Redmond’s car in June 2021.

“The totality of the facts and circumstances known to Officer Combs did not provide probably case to search Redmond’s vehicle,” the opinion reads.

Combs stopped Redmond for driving 73 mph on Interstate 80 where the speed limit was 70 mph and for not having his license plate properly secured.

When Redmond pulled over, Combs said he smelled burnt cannabis.

The state argued that the aroma, coupled with Redmond obfuscating about where he lived and that the incident occurred as Redmond was driving from Des Moines to Chicago – on what Combs called a “known drug corridor” between two cities – justified his search of Redmond’s car.

During the search, Combs found a gram of cannabis in a plastic bag in the car’s center console.

Redmond was charged with unlawful possession of cannabis and unlawful possession of cannabis by a driver.

The Illinois Supreme Court ruling upholds a trial court order that the marijuana Combs seized during the search cannot be used, and that any evidence from the warrantless car search must be suppressed.

The state’s high court noted that Redmond didn’t hesitate to pull over or comply with the officer, and that he “admitted he saw no signs of impairment when he spoke to Redmond.” The officer also didn’t recall Redmond himself smelling like pot, and there weren’t other signs of marijuana in plain sight, like smoke or “paraphernalia, loose or unpackaged cannabis, or the odor of raw cannabis coming from the vehicle.”

While the court found that “Officer Combs’s detection of the strong odor of burnt cannabis coming from the vehicle certainly established reasonable suspicion to investigate further,” when there was no sign that Redmond was driving impaired and Combs didn’t find any other obvious evidence that he had smoked while driving, the search Combs conducted was “unreasonable and unlawful.”

The justices said the test for determining whether there’s probable cause to search a vehicle without a warrant is comparable to how law enforcement should handle situations when they smell alcohol in a car.

Like pot, they wrote, alcohol is lawful in some circumstances but illegal in others, including prohibitions against drinking while driving, driving with a blood alcohol concentration of .08 or more, and driving with an open container of liquor.

An officer may have probable cause to search a car if a driver fails a field sobriety test, if a driver stalls to pull over or tosses something out the window, or if police see a liquor, beer or wine bottle on a car seat.

But case law holds the aroma of alcohol alone is not enough to justify searching a car without a warrant, the court indicated.

In a brief asking the court to hear the case, Redmond’s lawyers wrote that “even though the legal use of cannabis via smoking is still in its infancy, the rights attendant to being free from unreasonable searches and seizures are not,” and that it would be “absurd” now that marijuana is legal in Illinois if “anyone who smoked cannabis and either did not change his clothes or bathe before driving a car would not have the same Fourth Amendment rights as persons who may have engaged in similarly legal activities which trigger olfactory responses consistent with the possibility of criminal activity.”

The American Civil Liberties Union of Illinois in a friend-of-the-court brief urged the justices to hold that the smell of cannabis isn’t sufficient for a warrantless car search, on the basis that “such vehicle searches, typically following pretextual traffic stops, disproportionately burden Black and Latino drivers, who are likewise targeted for disparate enforcement of cannabis laws.”

Under Illinois law, drivers and passengers can’t use pot when a car is in motion, and “no driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State.”

Cannabis must also be transported and stored in a secure, sealed, odor-proof and child-resistant container that’s “reasonably inaccessible while the vehicle is moving.” 

Smell of Raw Cannabis

The Redmond case was consolidated with another case, The People v. Molina, in which a defendant was charged for not storing cannabis in a proper container following a search Vincent Molina argued was improper because it was instigated due to a trooper smelling raw cannabis.

However, it seems the justices have separated the cases, and will at some point make public a ruling on Molina.

Thursday’s opinion only references that case, save for a footnote that reads: “Redmond does not contest the validity of the odor-proof container requirement. In People v. Molina, 2024 IL 129237, a case dealing with a police officer’s detection of the odor of raw cannabis coming from a vehicle, we address the validity of the odor-proof container requirement.”

The Supreme Court has not publicly issued an opinion on Molina.

“Molina remains under advisement and there is not a set date for the opinion in that case,” a spokesman for the court said in an email.