Illinois Police Can Search Vehicles Based On Raw Cannabis Smell

The Illinois Supreme Court has ruled that police are allowed to conduct searches of vehicles based on the smell of raw cannabis. This decision diverts from a previous ruling by the court in September 2024, which initially found that the smell of burnt cannabis is not sufficient grounds for searching a vehicle.

The initial ruling that burnt cannabis smell is not grounds for searching a vehicle was divisive among  Illinois residents. While some believed the ruling to be unsafe, others viewed the initial ruling as a step in the right direction against the War on Drugs, which primarily affects Black and brown communities.

According to the Drug Policy Alliance, drug offenses are a leading cause of arrest in the United States. The FBI has shared data that arrests most often impact Black, Latinx, and Indigenous people and those with low incomes. 

The IL Supreme Court’s Initial Ruling On Vehicle Search

In September 2024, the Illinois Supreme Court ruled that the odor of burnt cannabis alone could not be used as a reasonable suspicion to search vehicles without a warrant. 

In the opinion that accompanied this ruling Justice P. Scott wrote, “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.”

This ruling that burnt cannabis alone is not enough to deem suspicious stems from a police search in 2020 near the Iowa border. During this search, an Illinois State Police officer searched a vehicle during a traffic stop due to the smell of burnt cannabis coming from the car. While the search was conducted, the officer confiscated one gram of cannabis flower. The driver was charged with a misdemeanor for illegal cannabis possession.

A Henry County judge approved a motion to suppress the one gram of cannabis as evidence, and the state appellate court upheld the decision. The Illinois State Patrol office argued against this motion, stating that the driver was in a “known drug corridor,” therefore indicating suspicious behavior for probable cause.

In 2022, Justice Mary McDade of the Illinois Appellate Court argued that the officer did not pull over the driver on suspicion that he was a drug courier but instead on the suspicion that the driver had smoked cannabis in the vehicle.

As such, McDade ruled that “it is not reasonable to assume that all persons driving or riding in vehicles – including rented vehicles – traveling on such a major interstate highway are involved in narcotics-related activities.”

The Illinois Supreme Court agreed with Henry County and approved the motion to remove the gram of cannabis from evidence, citing that the officer did not smell burnt cannabis on the driver. The Court believes that not being able to smell the burnt cannabis “undercuts the reasonable belief that [the driver] had recently smoked cannabis inside the vehicle while on an Illinois highway.”

Illinois Supreme Court Changes Their Decision

The Illinois Supreme Court revised its original decision by December of the same year.

With a 4-2 ruling, this revision is a shift from the previous Supreme Court ruling months earlier, which stated that the smell of burnt cannabis is not sufficient grounds to conduct a vehicle search. Instead, the smell of raw cannabis is deemed as grounds to warrant a police search.

This decision counters the previous ruling from the court that burnt cannabis was sufficient to search an Illinois driver’s vehicle. The back-and-forth can feel like whiplash. 

At this time, the court noted that the state continues to prohibit cannabis consumption inside a vehicle but acknowledges that the smell of burnt cannabis could linger on a person after they have smoked.

Illinois drivers must adapt to the changes from the journey the Illinois Supreme Court has conducted to decide the most appropriate form of having a reasonable suspicion to pull over and search a vehicle.

Chief Justice Mary Jane Theis and Justice Mary O’Brien were the ones who dissented from the majority opinion. 

O’Brien shared her statement on the decision to dissent. “I dissent from the majority opinion simply to point out the absurdity of this inconsistency,” O’Brien started. “It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption. If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.”

Burnt Cannabis Vs. Raw Cannabis

The difference between these two rulings is based on the type of cannabis odor coming from a vehicle – raw or burnt.

The smell of raw cannabis comes from fresh cannabis products. Essentially, raw cannabis flower has not yet been burnt or vaporized. Adult-use cannabis is legal in Illinois, and therefore, residents over 21 years old can purchase and transport the product legally.

The burnt cannabis odor indicates that the product has been consumed – or that the person driving the car has recently consumed cannabis. Typically, this type of smell is stronger and smokier than raw cannabis and may also be accompanied by other evidence, such as smoke ash. 

Justice O’Brien shared her objection in a written statement: “It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption. If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.”

Do Illinois Police Officers Know The Difference?

It’s a curiosity among Illinois cannabis consumers if police officers complete cannabis training that would help troopers indicate if they smell raw or burnt cannabis.

One Redditor shares their concerns over the new ruling: “I don’t really understand the logic. It is legal (under state law) to have and to use cannabis, but not to drive while impaired under the effect of cannabis use. As far as I know, the impairment comes into play when it’s “cooked,” not “raw.” (I have never used, but it stands to reason …) But police cannot pull a car over for the “cooked” smell (meaning that a person may be under the effects of its use) but they can for the “raw” smell (meaning it hasn’t been used).”

Because of the fine line of this cannabis smell law on vehicle searches, it’s essential to exercise caution and safety while driving in Illinois with legal cannabis.

If you are someone who is traveling with raw cannabis, be sure that the package is unopened and sealed from the dispensary where it was purchased. Be wary of traveling in a vehicle with cannabis in a loose or opened package.

Final Thoughts

The final ruling on how Illinois police can search cannabis has been deemed confusing by many consumers within the state.

Consumers are curious to understand how the smell of burnt cannabis can be acceptable, but raw cannabis (which has yet to be consumed) would cause the police to take action for a vehicle search. 

While the final decision remains to make complete sense, it shows that the conversation around cannabis continues to evolve within the state and the Illinois Supreme Court.