High court: Smell of burnt cannabis is not cause for warrantless vehicle search

Law enforcement officers in Illinois cannot rely on the smell of burnt cannabis alone to justify searching a vehicle without a warrant, the Illinois Supreme Court ruled on Thursday.

The decision was unanimous, though Justice Lisa Holder White did not take part in it. Writing for the court, Justice P. Scott Neville pointed to Illinois’ landmark 2019 law legalizing recreational cannabis, which decriminalized the possession of the drug up to 30 grams.

“The laws on cannabis have changed in such a drastic way as to render the smell of burnt cannabis, standing alone, insufficient to provide probable cause for a police officer to search a vehicle without a warrant,” Neville wrote in a 20-page opinion.

The case stems from September 2020, when Ryan Redmond was pulled over by an Illinois State Police trooper on Interstate 80 in Henry County, just east of the Quad Cities. Redmond’s license plate was allegedly not properly secured to his vehicle, and he was driving three miles above the speed limit, according to court records.

But during the interaction, the trooper allegedly smelled burnt cannabis in Redmond’s vehicle and upon searching the vehicle, he found approximately a gram of cannabis in the car’s center console.

Redmond was later charged with a misdemeanor for failure to transport cannabis in an odor-proof container.

The court found that the trooper’s detection of the “burnt cannabis” odor in the vehicle “certainly established reasonable suspicion to investigate further,” but noted that the officer’s further investigation yielded nothing more, including no signs that Redmond’s driving was impaired. Therefore, Neville wrote, the officer’s reasonable suspicion should have never advanced to “probable cause to search.”

Though the court acknowledged the trooper’s initial suspicion that Redmond could’ve “smoked cannabis in the car at some point” was not out of the realm of possibility, Neville pointed out that the officer not only “observed no signs of impairment” but also found no drug paraphernalia or evidence of cannabis use in the car on further investigation.

The trooper “also 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,” the opinion said.

The court heard Redmond’s case in January, alongside arguments in a related case focused on the section in Illinois law that requires cannabis be stored in a sealed, odor-proof container if being transported in a car.

In that case, an Illinois State Police trooper pulled over a car for speeding in rural Whiteside County, also near the Quad Cities, and then arrested the passenger of the vehicle for unlawful possession of cannabis. According to court records, Vincent Molina’s December 2020 arrest came after the officer found a small box of rolled joints in a vehicle search predicated on the smell of raw cannabis in the car, though Molina told the officer he had a medical cannabis card.

Though the Supreme Court heard the cases in consolidated arguments earlier this year, the justices only ruled on Redmond’s case Thursday. The decision briefly mentioned the Molina case in a footnote saying the court was not addressing “the validity of the odor-proof container requirement” in the Redmond decision.

Ahead of the joint oral arguments in January, national and state-level chapters of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers filed a brief in support of Molina and Redmond, writing that allowing the odor of cannabis as cause for searching a vehicle will lead to biased enforcement against Black and Latino Illinoisans.

“There is a decades-long pattern of police in this state using pretext like cannabis odor to disproportionately stop and search Black and Latino drivers,” according to the brief. Illinois’ stop and search policy “unfairly subjects [Black and Latino drivers] to at-will intrusions of their privacy and relegates them to second-class citizenry.”

The organizations argued the legalization of cannabis means its presence is not indicative of contraband or crime.

Thursday’s opinion also noted that other states agree, holding up a Kansas Supreme Court decision from earlier this year as an example. High courts in other states, including Minnesota, Delaware, New Jersey, Pennsylvania and Vermont have ruled similarly, though Wisconsin’s Supreme Court decided the opposite in a 2023 ruling.

Other states also have passed laws prohibiting warrantless searches of vehicles based solely on the smell of cannabis. But a similar effort in Illinois stalled last year as the Redmond and Molina cases were pending.

• Dilpreet Raju contributed.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations 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.