(The Center Square) – The odor of cannabis can no longer be the only thing police notice in order to search a vehicle during a traffic stop after an Illinois Supreme Court ruling last week.
The consolidated cases had different outcomes in the appellate court. The Illinois Supreme Court heard the case in January. Representing the state, attorney Mitchell Ness said while cannabis is legal for medical reasons and now recreational purposes, products must be sealed in an odor-proof container when it’s being transported.
“The smell of raw cannabis omitting from a vehicle is not being carried in the odor-proof container,” Ness argued to the Illinois Supreme Court.
Ness said police have a right to search if they smell cannabis as it indicates it’s probably not in a legally required odor-proof container.
“[Legislators] enacted the odor-proof requirement in 2019 in the exact same time they put in place the now full legalization system,” Ness said.
The consolidated case focused on a traffic 2020 stop of Ryan Redmond for speeding. The officer conducted a search using the odor of cannabis as probable cause. Redmond moved to suppress that evidence.
The Illinois Supreme Court heard the case in January.
Representing Redmond, attorney Bruce Carmen said smell alone can’t be used for a warrantless search of a vehicle.
“You can’t take a picture of a smell like you can on objects that you see in plain sight,” Carmen said. “You can’t record on an audio a sound you might have heard for example showing somebody evidence of impairment. Smell is entirely subjective.”
Representing Vincent Molina, attorney James Mertes said the smell of cannabis can permeate fabric and skin long after someone consumes it and the odor alone is not justifiable for a probable cause search.
“To deny the motion to suppress would place the citizen in the untenable position of exercising his rights under the Cannabis Regulation and Tax Act while forfeiting his rights under the Fourth Amendment of the United States Constitution,” Martes said.
Thursday in a near unanimous decision, the Illinois Supreme Court issued their ruling that “the odor of burnt cannabis, alone, is insufficient to provide probable cause for police officers to perform a warrantless search of a vehicle.”
