In the recent years, Illinois has faced many changes in its laws that regulate the use and possession of cannabis. Cannabis is legal in the state, but there are still certain restrictions in place for when, where, and how one may possess and use cannabis in Illinois. In People v. Redmond, 2024 IL 129201 (Sept. 19, 2024), the Illinois Supreme Court addressed the issue of what amounts to probable cause in the landscape of recent Illinois cannabis law changes.

Facts

The case that brought this issue to the Illinois Supreme Court arises from a traffic stop in 2020. Officer Combs initiated a traffic stop after he saw a vehicle with an improperly secured license plate travelling at 73 miles per hour in a 70 mile per hour zone. When the driver, Redmond, rolled down his window, Officer Combs smelled burnt cannabis. Based on the strong odor of burnt cannabis, Officer Combs conducted a search of the vehicle believing he had probable cause to conduct a warrantless search of the vehicle. Officer Combs found one gram of cannabis in a plastic bag located in the center console. Redmond was charged with unlawful possession of cannabis in violation of the Cannabis Control Act (“Control Act”) (720 ILCS 550/1 et seq.) and unlawful possession of cannabis by a driver in violation of 625 ILCS 5/11-502.15(b) of the Illinois Vehicle Code. Redmond filed a motion to suppress the evidence of the cannabis found in his vehicle.

In the Henry County circuit court, Redmond’s motion to suppress was granted because the court found that Officer Combs lacked probable cause for the warrantless search of the vehicle. Officer Combs explained the traffic stop in detail and gave the reasons why he conducted the traffic stop. Officer Combs testified that he asked Redmond about the odor and Redmond denied smoking in the vehicle. Officer Combs did not see anything related to cannabis in plain view, so he had Redmond step out of the vehicle to conduct a full search. Officer Combs admitted that he did not observe any signs that Redmond was impaired. Redmond did not produce his license and registration, but Officer Combs retrieved a record that Redmond had a valid Illinois license with a Chicago address. Officer Combs stated that Redmond failed to give straightforward answers about where he lived, but admitted he lived in Chicago but had been staying with a friend in Des Moines, Iowa, which is where he was travelling back from. Officer Combs testified that he searched the vehicle because there was an odor of burnt cannabis, Redmond gave evasive answers, Interstate 80 was “a known drug corridor,” and Redmond was driving from Des Moines to Chicago, both cities that are “hubs of criminal activity.” The court reasoned that Officer Combs did not observe any signs of impairment or signs indicative of recent cannabis use such as  paraphernalia, loose or unpackaged cannabis, or the odor of raw cannabis. The circuit court found that because the smell of burnt cannabis could persist even if used and possessed wholly within the limits of Illinois law, the smell of burnt cannabis alone could not constitute probable cause for a warrantless search of a vehicle.

On appeal, the appellate court held that the smell of burnt cannabis alone, without other corroborating factors, is not enough to establish probable cause to search a vehicle. The reasoning of the appellate court reflected that of the trial court as they pointed to the lack of evidence supporting the search. Further, the court noted the lack of evidence supporting Officer Comb’s testimony that Interstate 80 was a known drug corridor and that Des Moines and Chicago were hubs of criminal activity, and concluded that those facts had no relevance to whether Redmond had smoked cannabis in the vehicle.

Illinois Supreme Court

The issue before the Illinois Supreme Court is whether Officer Combs had probable cause to search Redmond’s vehicle  based on only the odor of burnt cannabis in the vehicle alone. The warrantless searching of a motor vehicle for evidence of criminal activity is a well-established exception to the Fourth Amendment’s prohibition against unreasonable searches due to the impracticality of first obtaining a warrant given the ease with which a motor vehicle can leave the applicable jurisdiction along with any evidence therein. To conduct a warrantless search of a motor vehicle, an officer must have probable cause to believe that the automobile contains evidence of criminal activity that officers are entitled to seize. Such probable cause exists if there is a reasonable probability or substantial chance of criminal activity based on an objective view of the circumstances leading up to the search. Here, the question then before the Court is whether the smell of cannabis in a car establishes a “reasonable probability or substantial chance of criminal activity.” The State’s argument is that a reasonable officer who smelled a strong odor of burnt cannabis 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 argues that after the Illinois legislature legalized the use and possession of cannabis, the odor of burnt cannabis from a vehicle alone is not sufficient to establish probable cause that a crime has been or is being committed.

Evolution of Cannabis Law in Illinois

The Illinois Supreme Court discusses the evolution of Cannabis law in Illinois in their analysis. The Court breaks down the law over the past fifteen years. Before 2013, all cannabis was contraband, and the scent of cannabis alone was sufficient for probable cause. After 2013, legalization and decriminalization began with legalizing marijuana for medical use and making possession not more than ten grams a civil law violation. The Illinois Supreme Court decided that the decriminalization of the possession of small amounts of cannabis did not change the probable cause requirements, and the strong odor of cannabis alone was still sufficient for probable cause. In 2019, Public Act 101-27 legalized marijuana recreationally in Illinois. Yet, there were still various regulations on possessing cannabis in motor vehicles. Specifically, the Illinois Vehicle Code prohibits the use of cannabis in a vehicle upon a highway and restrains how an individual may possess cannabis within a vehicle. 625 ILCS 5/11-502.15.

With the full legalization of marijuana in Illinois, the probable cause analysis was  affected since it is no longer automatically a crime to use or possess cannabis.

How Cannabis Law Impacts Probable Cause

The Illinois Supreme Court addresses this issue to resolve the conflict between Illinois district courts. The Second District has held that the odor of burnt cannabis alone is sufficient to justify a warrantless search of a vehicle. Conversely, the Third District has held that the smell of burnt cannabis is not enough on its own to establish probable cause to search a vehicle. Probable cause is the basis for officers to conduct a warrantless search of a vehicle; there is probable cause if there is a reasonable probability or substantial chance that a crime has been or is being committed.

The Court held that since Illinois cannabis law has evolved, such that cannabis use and possession is legal in some situations, the smell resulting from legal use and possession is not indicative of a criminal offense. Therefore, there may not be automatic probable cause that a crime has been or is being committed based on the smell of cannabis alone. Even though there are still situations where cannabis use is illegal, the odor of burnt cannabis alone in a vehicle does not reliably point to who used the cannabis, when it was used, or where it was used. The Court supports their conclusion with a comparison to case law that held that the odor of alcohol alone is insufficient to establish probable cause because there are situations where the use of alcohol is both illegal and legal.

Instead of establishing probable cause on its own, the Court held that the odor of burnt cannabis is one circumstance to be considered in the totality of the circumstances when determining whether probable cause exists.

As Applied to the Traffic Stop at Issue

Here, the Court concluded that the totality of the circumstances did not provide the officer with probable cause to search the vehicle. The State argued that the totality of the circumstances did provide Officer Combs with probable cause to believe Redmond violated the Illinois Vehicle Code and the Cannabis Regulation and Tax Act, namely possessing unsecured cannabis in a vehicle on an Illinois highway. Specifically, the state points to the circumstances of the strong odor of burnt cannabis, that the stop occurred on Interstate 80 halfway between Des Monies and Chicago, that Officer Combs continued to smell the odor in the vehicle after he removed Redmond, Redmond did not produce his license and registration, and Redmond did not provide direct answers about where he lived or why he was traveling.

The Court held that the fact that the odor remained in the car once Redmond was removed would give rise to only a reasonable suspicion that he had smoked cannabis in the car at some point. Further, the Court found that the fact that Officer Combs observed no signs of impairment, and no drug paraphernalia or evidence of cannabis use in the car to be important. Officer Combs did not smell the cannabis on Redmond’s person, only in the vehicle, which points to the conclusion that Redmond had not been smoking cannabis in his vehicle. Regarding the last two factors the State points to, the Court held that failing to provide a driver’s license and failing to directly respond to Officer Combs’ questions does not make it more likely that Redmond committed the crime of illegally possessing cannabis in his vehicle. 

In conclusion, the Court explained that the detection of the strong odor of burnt cannabis coming from the vehicle established reasonable suspicion to investigate further, but it did not establish probable cause that Redmond committed a crime. Thus, while it was proper for Officer Combs to ask follow up questions and search for evidence of illegal cannabis within plain view, the warrantless search was unreasonable and unlawful. Because possessing marijuana in a motor vehicle is legal in certain circumstances, while the smell of cannabis suggests possession or use it does not indicate whether that use or possession is or was illegal or recent. As such, there must be other factors present to tip the scales toward illegal use as opposed to legal use in order to establish probable cause for a warrantless search. Such factors may include signs of impairment (i.e. red eyes), observation of loose marijuana in a vehicle, observation of paraphernalia in the vehicle, observation of smoke in the vehicle, or delay in pulling over. If after making a traffic stop an officer observes the smell of marijuana, follow-up questions may be asked and consideration of plain view evidence may be considered, but an officer must observe additional circumstances beyond smell such as those listed above before the circumstances suggest that there was illegal use of cannabis in the vehicle as opposed to legal use, creating probable cause to search the vehicle without a warrant.

Authored by:

not-pictured: Lily C. McKay