In this case we must determine, after the recent changes to Illinois’s cannabis laws, whether a police officer’s detection of the odor of burnt cannabis, considered alone or in conjunction with other facts, provides probable cause to conduct a warrantless search of a vehicle. Illinois State Police officer Hayden Combs conducted a search of Ryan Redmond’s vehicle based on, inter alia, his detection of the strong odor of burnt cannabis emanating from the vehicle. The State primarily argues that Combs had probable cause to suspect that a search of the vehicle would uncover evidence that cannabis was improperly contained in the vehicle or, more likely, uncover evidence that Redmond had used cannabis on his trip from Des Moines to Chicago. See 625 ILCS 5/11-502.15(a) (West 2020) (“No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State.”). Combs searched Redmond’s car and found one gram of cannabis inside the center console in a plastic bag.
The State charged Redmond with unlawful possession of cannabis in violation of section 4 of the Cannabis Control Act (Control Act) (720 ILCS 550/4(a) (West 2020)) and unlawful possession of cannabis by a driver in violation of section 11- 502.15(b) of the Illinois Vehicle Code (625 ILCS 5/11-502.15(b) (West 2020)). Redmond filed a motion to suppress the cannabis. The Henry County circuit court granted the motion, and the appellate court affirmed, holding that recent changes to the law pertaining to cannabis made the odor of burnt cannabis, standing alone, insufficient to justify a warrantless search of an automobile.
We allowed the State’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. Oct. 1, 2021). We also allowed the American Civil Liberties Union, ACLU of Illinois, National Association of Criminal Defense Lawyers, and the Illinois Association of Criminal Defense Lawyers to file an amici curiae brief on behalf of Redmond’s position. For the following reasons, we affirm the judgment of the appellate court. […]
The sole issue before this court is whether Officer Combs had probable cause to search Redmond’s vehicle after Combs smelled the odor of burnt cannabis coming from the vehicle. The State argued in its brief that “where the officer detected the strong odor of burnt cannabis—a reasonable officer was justified in suspecting either a violation of the odor-proof transportation requirement or, perhaps more likely, the prohibition on the use of cannabis within a vehicle.” Redmond responds that, after the legislature legalized the use and possession of cannabis, the odor of burnt cannabis emanating from a vehicle alone “lacks a clear and direct enough connection to illegal activity to make it ‘probable’ that a crime has recently been committed or is being committed.” […]
In People v. Stout, 106 Ill. 2d 77, 88 (1985), this court held that “additional corroboration” was not required to establish probable cause for a warrantless search “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” […]
After January 1, 2020, when the use and possession of cannabis was legalized in many instances, our appellate court has reached conflicting results in cases concerning the effect of legalization on probable cause for automobile searches. The Second District has held that the odor of burnt cannabis, standing alone, still justifies a warrantless search of an automobile. … The Third District has held that “the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search [a] vehicle.” […]
Unlike the legal landscape considered in Hill, Illinois cannabis law has evolved, and use and possession have not only been decriminalized in numerous situations, but they have been legalized in numerous situations. There are now a myriad of situations where cannabis can be used and possessed, and the smell resulting from that legal use and possession is not indicative of the commission of a criminal offense. […]
What is notable about the Vehicle Code provisions is that they do not prohibit the possession or use of cannabis within a motor vehicle. The gravamen of the offenses is that the conduct occurs “upon a highway in this State.” Thus, it would not have been a violation of the Vehicle Code for Redmond to have used cannabis in a motor vehicle before he left Des Moines or in any location within Illinois not considered a “highway.” […]
In short, Officer Combs’s detection of the strong odor of burnt cannabis coming from the vehicle certainly established reasonable suspicion to investigate further. Combs reasonably investigated whether Redmond had violated the Vehicle Code and whether Redmond was driving impaired. When his further investigation did not yield any inculpatory facts, the quantity of evidence never advanced on the - 20 - continuum from reasonable suspicion to probable cause to search. Therefore, the search was unreasonable and unlawful, and the circuit court properly granted Redmond’s motion to suppress the evidence in this case.
Finally, the State argues that this court should reverse the circuit court because Combs acted in good faith when he searched Redmond’s car. The State did not raise any issue regarding the good faith exception in the circuit court. The State forfeited the issue a second time by failing to raise it in the appellate court. Therefore, we decline to address the State’s twice-forfeited good faith argument. […]
We hold that the odor of burnt cannabis, alone, is insufficient to provide probable cause for police officers to perform a warrantless search of a vehicle. We also hold that the totality of the facts and circumstances known to Officer Combs did not provide probable cause to search Redmond’s vehicle. Therefore, the circuit court correctly granted the motion suppressing the evidence confiscated from Redmond. Accordingly, we affirm the appellate court’s decision affirming the trial court’s order suppressing the evidence seized in the warrantless search of Redmond’s car.
- TJ - Thursday, Sep 19, 24 @ 10:54 am:
Good. Claims that an officer “smelt something” is one of the most over-abused cliches imaginable in random police searches.
- sulla - Thursday, Sep 19, 24 @ 10:54 am:
Good.
- TNR - Thursday, Sep 19, 24 @ 11:04 am:
Seems to be a very reasonable interpretation of the statute regarding the search of his vehicle. However, given the frequency in which I smell weed being smoked in cars, I do wonder if one of the negative consequences of legalization (which I totally supported) is we have more motorist driving under the influence. I think the best way to address this is through more public awareness campaigns. Not to suggested we should abandoned all efforts to discourage drinking and driving, but we should probably shift more resources towards reminding people that driving while high isn’t a great idea either.
- Friendly Bob Adams - Thursday, Sep 19, 24 @ 11:06 am:
Now they have to go back to “one of your tail lights was just a little dimmer than the other one”
- ArchPundit - Thursday, Sep 19, 24 @ 11:08 am:
TNR-it appears the officer investigated whether the driver was impaired and found no evidence he was according to the decision. I agree about focusing on impaired driving as well, but the search of the car came after that determination was made.
- H-W - Thursday, Sep 19, 24 @ 11:09 am:
The opinion includes the notation that === detection of the strong odor of burnt cannabis coming from the vehicle certainly established reasonable suspicion ===
If reasonable suspicion exists, what is then allowed, short of a warrantless search (e.g., a field sobriety check; a non-invasive visual inspection of the interior to see if weed or a pipe, etc., is out in the open)? Just curious, but as written there still seems to be some wiggle room, and I am just curious what might still be allowed if the scent is not sufficient for a warrantless search.
- Anyone Remember - Thursday, Sep 19, 24 @ 11:18 am:
Can we now apply the same standard to the odor of alcohol?
- Roadiepig - Thursday, Sep 19, 24 @ 11:24 am:
Good. In 2019 (after the state had passed legalization but before it took effect) Howard Buffett offered $500,000 to the City of Decatur to have an new officer patrol , looking for cannabis violations (including the smell of burning weed). Just an excuse to stop and search, and we don’t need any more lawsuits from citizens singled out for these kind of inspections. Break the law with your driving, fine, pull them over. Just fishing for crimes and fines- no.
- Rich Miller - Thursday, Sep 19, 24 @ 11:34 am:
===odor of alcohol?===
That’s addressed in the opinion.
- KA MA - Thursday, Sep 19, 24 @ 11:36 am:
Anyone remember: NO
- Michelle Flaherty - Thursday, Sep 19, 24 @ 11:38 am:
– That’s addressed in the opinion. –
I don’t have time to read court rulings before I comment.
- H-W - Thursday, Sep 19, 24 @ 11:42 am:
I should have read the full opinion first. It answers my previous question directly. Sorry folks.
- Google Is Your Friend - Thursday, Sep 19, 24 @ 12:05 pm:
I’m sure police departments will dutifully work to train their officers on this decision and not do anything to undermine or sabotage or just plain ignore it.
- hmmm - Thursday, Sep 19, 24 @ 12:06 pm:
Driving while stoned is still illegal. Is the only difference now that further inspection (after the initial pot odor detection) requires a failed sobriety test of some sort? I definitely think pulling folks over who are actively smoking weed in the car (very common on Chicago Highways) is a worthwhile use of police resources.
- Rich Miller - Thursday, Sep 19, 24 @ 12:12 pm:
===Driving while stoned is still illegal.===
Yes. But this case deals with warrantless searches.
- Stephanie Kollmann - Thursday, Sep 19, 24 @ 12:29 pm:
“On September 15, 2020, Officer Combs saw a car with an improperly secured license plate traveling at a speed of 73 miles per hour in a 70-mile-per-hour zone on Interstate 80 in Henry County.”
Oh. I see.
- Mason County - Thursday, Sep 19, 24 @ 12:37 pm:
The dilemma as it relates to the average person.
Having people under the influence of cannabis while driving is very dangerous.
The excuse of “I smelt cannabis” can be used as an excuse to harass indiviudals in a petty an arbitrary manner.
I could be wrong, and if so, anyone can correct but in People v Briseno an Officer used the ‘I smelled cannabis’ to arrest for DUI. However, in this case the officer did not search the vehicle. Instead, the Officer testified that defendant had the odor of cannabis on his breath and in his vehicle, his eyes were dilated, his speech was slurred, and his motor skills were slower than average. Based on these factors and defendant’s admission, the Officer arrested the defendant and took him to the police station.
Illinois seemingly has good laws to charge for being under the influence of cannabis while drving. In this case the police went a step too far and have been rebuked.
- Demoralized - Thursday, Sep 19, 24 @ 12:44 pm:
All the ruling said is that they can’t use the odor to search the car. They can still do DUI citations.
- Demoralized - Thursday, Sep 19, 24 @ 12:45 pm:
The ruling doesn’t give people a free pass to smoke weed and drive.
- Anyone Remember - Thursday, Sep 19, 24 @ 1:34 pm:
===That’s addressed in the opinion.===
That’s what I get for reading the opinion on my phone, it loaded “wonky” … . Time for a new phone
- Banish Misfortune - Thursday, Sep 19, 24 @ 4:17 pm:
When I was a young lawyer ( a looong time ago) and working in the 6th circuit which included Kentucky and Tennessee, a perennial issue is whether the odor of mash was enough for probable cause for a search. This of course was the era of illegal stills and searches by “revenuers” . My recollection alone, it was not.
- thisjustinagain - Thursday, Sep 19, 24 @ 8:02 pm:
Well, at least the ruling will make this legal point consistent Statewide. But Illinois should end the practice of allowing the various Appellate Districts to issue conflicting rulings, which causes no end of headaches for everybody.