Smell of raw cannabis allows police to search a vehicle, Illinois Supreme Court rules
High court ruled earlier this year that smell of burnt cannabis was not probable cause
SPRINGFIELD, Ill. -- The smell of raw cannabis in a vehicle gives police probable cause to search it, the Illinois Supreme Court ruled last week.
The ruling comes months after the court ruled the smell of burnt cannabis does not give police probable cause to search a vehicle, drawing a fine line for motorists and police to follow when evaluating legal possession of cannabis.
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"The odor of burnt cannabis suggests prior or current cannabis use, and the odor of raw cannabis suggests that cannabis is currently possessed in the area where the odor is detected. Different laws are implicated based on those inferences," Justice P. Scott Neville, a Democrat, wrote in the majority opinion.
The 4-2 ruling by the court, with Republican Justice Lisa Holder White abstaining, found that an Illinois State Police trooper conducted a legal search of a car in which Vincent Molina was a passenger in December 2020, after the driver was pulled over for speeding on Interstate 88 in Whiteside County.
According to court documents, the trooper said he smelled raw cannabis in the vehicle and initiated a search. The trooper then found multiple joints in a cardboard box in the car's center console and cannabis in a sealed plastic container in the glove box. Molina was charged with a misdemeanor for illegal possession of cannabis.
A circuit court initially ruled in Molina's favor, finding the search was unreasonable because Illinois law allows people over age 21 to possess recreational cannabis. But an appellate court and the Illinois Supreme Court disagreed with that ruling, citing the state's laws for how cannabis should legally be possessed in a vehicle.
Illinois law requires cannabis to be in a "sealed, odor-proof, child-resistant cannabis container" when in a car and for it to be "reasonably inaccessible while the vehicle is moving."
Neville wrote the trooper made a "reasonable inference" that the smell meant cannabis was illegally possessed.
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"While cannabis is legal to possess generally, it is illegal to possess in a vehicle on an Illinois highway unless in an odor-proof container," Neville wrote. "The odor of raw cannabis strongly suggests that the cannabis is not being possessed within the parameters of Illinois law. And, unlike the odor of burnt cannabis, the odor of raw cannabis coming from a vehicle reliably points to when, where, and how the cannabis is possessed - namely, currently, in the vehicle, and not in an odor-proof container."
The Illinois Supreme Court unanimously ruled in September, with White abstaining, that the smell of burnt cannabis does not indicate a crime has been committed and does not give police probable cause to search a vehicle. Though a state trooper found a gram of cannabis in the car at the center of that case, the driver exhibited no signs of impairment, and the trooper should not have searched the vehicle, the court concluded in an opinion authored by Neville.
Justice Mary Kay O'Brien wrote a dissenting opinion in Molina's case, joined by Chief Justice Mary Jane Theis.
"It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption," O'Brien wrote. "If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either."
O'Brien, a former state lawmaker, noted it is legal to possess certain amounts of cannabis in Illinois.
"The result, whether intentional or not, is to continue to stigmatize the use of cannabis despite the legislative efforts to legalize the use of cannabis," she wrote.
Supreme courts in other states have also issued rulings placing limits on when the smell of cannabis gives probable cause to police to search a vehicle.
Illinois lawmakers have also sought to enshrine limitations on vehicle searches based on the smell of cannabis into state law. The Senate passed a bill in 2023 that would prohibit police from searching a vehicle based on the smell of burnt or raw cannabis, but it stalled in the House pending resolution of the court cases.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of print and broadcast outlets statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.
