Can Police Search Your Car Based Off of the Smell of Cannabis?

On January 1, 2020, Illinois joined 10 other states (Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) that allow the recreational use of marijuana for adults.  For 40 years, the odor of cannabis justified the search of a vehicle in Illinois. But the Appellate Court has recently held that the odor of cannabis alone is no longer a valid basis for a search of a car.  In this article, Attorney Clyde reviews the history of cannabis law and current state of the law.

The Fourth Amendment of the United States Constitution and Section 6 of Article 1 of the Illinois Constitution grant every person in Illinois the freedom from “unreasonable searches” and require law enforcement officers to obtain a search warrant predicated upon probable cause prior to conducting a search. However, Courts have long held that officers can do “reasonable searches” without the need for a warrant when there are specific and articulable facts that justify the intrusion (see Carroll v. United States, 267 U.S. 132 (1925) and Terry v. Ohio, 392 U.S. 1 (1968)).

The issue as to whether the odor of marijuana justified a search was hotly debated in the 1970s and early 1980s.  The second, forth, and fifth districts in Illinois decided that it was a legitimate basis (see People v. Smith, 67 Ill. App. 3d 952 (5th Dist. 1978), People v. Laird, 11 Ill. App. 3d 414 (5th Dist. 1973), People v. Houldridge, 117 Ill. App. 3d 1059 (4th Dist. 1983); and People v. Erb, 128 Ill. App. 2d 126 (2d Dist. 1970)).  The third appellate district, however, ruled that the odor of cannabis alone was insufficient to justify the search of a vehicle (see People v. Wombacher, 104 Ill. App. 3d 812 (3d Dist. 1982) and People v. Argenian, 97 Ill. App. 3d 592 (3d Dist. 1981). 

Given the split in the lower courts, the Illinois Supreme Court made its determination on the issue in People v. Stout, 106 Ill. 2d 77 (Ill. 1985).  The Court held that “corroboration is not required [for a warrantless search of a vehicle] where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.”

This Sniff-and-Search Doctrine was the law-of-the-land in Illinois for three decades, but started coming under attack as more states decriminalized the possession and use of marijuana. In 2016, the Illinois legislature allowed for the medical possession and use of cannabis (see Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 130/1).  Because of the change in law, a defendant challenged the odor of cannabis as the basis of a warrantless search in People v. Rice, 2019 Ill. App. 3d 170134 (3d Dist. 2019).  The defendant argued that because a person may lawfully possess cannabis in certain circumstances, the odor of cannabis alone should no longer be a legitimate basis for a warrantless search.  The Appellate Court, in citing the Illinois Supreme Court’s earlier decision in Stout, denied the defendant’s appeal.  The odor of cannabis alone was still a sufficient basis for the warrantless search of a vehicle.

The issue of whether the smell of cannabis alone was sufficient for a warrantless search of a vehicle recently came before the Illinois Supreme Court in the case of People v. Hill, 2020 IL 124595 (Ill. 2020).  The defendant in the Hill case specifically requested that the Court overturn the earlier People v. Stout decision.  In reviewing the facts of Hill case, however, the Court noted that the investigating officer was not relying on the smell of cannabis alone.  That officer visibly saw a loose cannabis bud in the back seat of defendant’s vehicle and that the defendant had delayed in pulling the vehicle over at the initiation of the traffic stop.  Thus, the case had additional evidence, and not just the odor of cannabis alone, to justify the search of the vehicle. 

The Illinois Supreme Court had an opportunity here to specifically uphold People v. Stout as the law of the land in Illinois.  Although some parts of the opinion seem to favor Stout’s ruling as good case law (see *P33), the Court refused to address the validity of Stout.  (*P18).  In fact, the Court failed to cite the Stout case as legal authority at all in rendering its decision.  Thus, practitioners are curious about the future Sniff-and-Search, especially given enactment of the Cannabis Regulation and Tax Act in June of 2019, which legalized the possession and use of small amounts of recreational cannabis for adults as of January 1, 2020.  410 ILCS 705/1-1 et. seq.

Other courts that have addressed this issue have been a mixed bag.  For example, Massachusetts has found that the odor of cannabis alone no longer justifies a search. See Commonwealth v. Cruz, 459 Mass. 459 (2011). A court in New York agreed with the reasoning of Cruz case in People v. Brukner, 51 Misc. 3d 354 (2015).  Vermont, Colorado, and California, however, still hold sniff and search despite the decriminalization laws on their books. State v. Senna, 2013 VT 67 ; People v. Zuniga, 372 P.3d 1052 (2016) People v. Strasburg, 148 Cal. App. 4th 1052 (2007). 

Finally, in September of 2022, the Appellate court gave us the answer in the case of People v. Stribling, 2022 IL App (3d) 210098.  The Appellate Court said, “We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with the supreme court’s holding in Hill and its treatment of the analogous situation regarding alcohol. Thus, the supreme court’s holding in Stout is no longer applicable to postlegalization fact patterns.”