by Anthony W. Accurso

The Supreme Court of Illinois invalidated an officer’s search of a vehicle and held that the odor of burnt cannabis, on its own, is insufficient to justify a warrantless search of a driver’s vehicle.

On September 15, 2020, Ryan Redmond was driving from Des Moines, Iowa, where he was staying during COVID, to Chicago, where his official residence was located. While passing through Henry County on Interstate 80, Illinois State Police Officer Hayden Combs observed Redmond’s vehicle traveling three miles per hour over the posted speed limit of 70 mph and that his license plate was “improperly secured.”

During the traffic stop, Combs smelled the strong odor of burnt cannabis emanating from Redmond’s vehicle. After removing Redmond from his vehicle, Combs did not smell the cannabis on Redmond, nor did Redmond seem impaired. Nevertheless, Combs searched the vehicle and found “one gram of cannabis in the center console in a plastic bag.”

The State charged Redmond with unlawful possession of cannabis in violation of 720 ILCS 550/4(a) and unlawful possession of cannabis by a driver in violation of 625 ILCS 5/11-502.15(b). Citing changes to the law permitting recreational cannabis use, Redmond filed to suppress the evidence.

The circuit court granted Redmond’s suppression motion, explaining that “because the smell of burnt cannabis could persist even if possessed and used wholly within the bounds of Illinois law, the smell of burnt cannabis standing alone could not constitute probable cause for a warrantless vehicle search.” The appellate court upheld this order, noting that no other factor cited by Combs in his testimony established probable cause to search the vehicle. The State timely appealed to the Illinois Supreme Court.

The Court began by noting that searches require a warrant unless performed under a recognized exception to the Fourth Amendment to the Constitution. U.S. Const., amend. IV; see also Katz v. United States, 389 U.S. 347 (1967). One such exception is for automobiles. See Carroll v. United States, 267 U.S. 132 (1925). Under this exception, “officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.” People v. James, 645 N.E.2d 195 (Ill. 1994).

Probable cause exists when evidence available to an officer suggests a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213 (1983). The Court stated the standard as follows: “A court must examine the events leading up to the search or seizure, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable law enforcement officer, amount to probable cause.” People v. Jones, 830 N.E.2d 541 (Ill. 2005).

Before addressing the issue of whether probable cause existed, the Court discussed the evolution of cannabis law in Illinois. In 2013, Illinois changed its laws to provide for medicinal use of cannabis, but the state Supreme Court never addressed whether the odor of burnt cannabis in a vehicle alone remained sufficient to establish probable cause after the change in law.

Then, Public Acts 101-27 and 101-593 changed the law—taking effect on January 1, 2020—in a way that allowed for recreational use of cannabis. However, the Vehicle Code maintained that “No driver may use cannabis within the passenger area of any motor  vehicle upon a highway in this State.” 625 ILCS 5/11-502.15(a).

On appeal, the State conceded that “the smell of burnt cannabis, standing alone, is insufficient to give an officer probable cause to search a vehicle.” The Court noted that it’s not bound by the State’s concession, In re Brandon P., 10 N.E. 3d 910 (Ill. 2014), but it agreed with it in this case.

In reaching its conclusion, the Court likened the smell of burnt cannabis under current law to the law governing the smell of alcohol, which supports this conclusion. See 410 ILCS 705/1-5(b) (West 2020) (“cannabis should be regulated in a manner similar to alcohol”).  That is, absent signs of impairment or other evidence supporting cannabis use “upon a highway,” an officer lacks probable cause for a vehicle search, according to the Court.

The Court explained that this conclusion is in line with other several other states that have similarly legalized the recreational use of cannabis. See State v. Torgerson, 995 N.W.2d 164 (Minn. 2023) (holding that the odor of cannabis alone insufficient to establish probable cause but “may be considered as part of the probable cause calculus”); Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) (“the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances”); Commonwealth v. Craan, 13 N.E.3d 569 (Mass. 2014) (“Since the enactment of the 2008 initiative decriminalizing the possession of one ounce or less of marijuana, we have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant.”).

Thus, the Court held “that the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle.” In doing so, the Court expressly overruled People v. Stout, 477 N.E.2d 498 (Ill. 1985), to the extent it held that the odor of burnt cannabis emanating from a vehicle is alone sufficient for a warrantless vehicle search and instructed that Stout “is no longer valid for searches that occurred on or after January 1, 2020.”

The Court then applied the newly announced law to the present case. It rejected the State’s argument that Redmond was likely violating the prohibition of using cannabis is a motor vehicle, and he may have violated the prohibition against possessing cannabis in a motor vehicle. §§ 11-502.15(a) and (b). However, the Court noted that the statutes don’t “prohibit the possession or use of cannabis within a motor vehicle.” Rather, the “gravamen of the offenses is that the conduct occurs ‘upon a highway in this State,’” according to the Court. Consequently, the Court explained that “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.’”

 The Court also rejected the State’s argument that the totality of the circumstances established probable cause based on the facts of the case. It noted that when considering the totality of the circumstances, police must also take into account “facts that tend to defeat or dispel probable cause.” See United States v. Cortez, 449 U.S. 411 (1981). Based on Redmond’s cooperative behavior together with his lack of impairment and absence of any cannabis or related paraphernalia in the vehicle, the Court concluded that the totality of the circumstances did not establish probable cause, and thus, the warrantless search was unlawful. 

Accordingly, the Court affirmed the decision of the appellate court. See: People v. Redmond, 2024 IL 129201 (2024).   

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