Smell of Burning Cannabis Alone No Longer Satisfies Probable Cause for Search of a Vehicle In Illinois

On Behalf of | Sep 21, 2022 | Firm News |

Yesterday, in a unanimous decision, an Illinois appeals court held that “the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search [a] vehicle, and the [trial] court did not err in granting the motion to suppress” filed by the defense. This holding reversed long-held precedent in Illinois and will be a game-changer for police officers and motorists.

In this case, the People of the State of Illinois v. Stribling, the motorist was pulled over by police after allegedly violating several traffic laws and the officer claimed to have detected a strong odor of burnt cannabis coming from the vehicle as he approached the driver. When asked about it, the defendant indicated that someone had smoked in the car “a long time ago.” Based on that, the officer proceeded to search the vehicle without the driver’s consent, believing he had probable cause to search and ended up finding a pistol. Mr. Stribling was then charged with unlawful use of a weapon, but the circuit court granted a motion to suppress (excluding or throwing out the evidence as illegally obtained) given the changes in cannabis or marijuana laws in Illinois; under the facts of the case, the circuit court held and the appellate court agreed, that the officer did not have probable cause to search the vehicle based on the smell of burnt cannabis without more.

As correctly reported by Law 360, “The decision overturns the standard regarding marijuana odor and probable cause that had been established in Illinois since a 1985 case. It also marked the first time one of the state’s appellate courts had considered the issue since the legalization of adult-use cannabis in 2019 and the commencement of regulated retail sales in 2020.”

In 1985, the Illinois Supreme Court ruled that the odor of burnt cannabis alone was enough to search a vehicle that was lawfully pulled over. In reaching yesterday’s decision, the appellate court addressed the changes to Illinois law with legalization and stated that given that marijuana is now legal to possess for those over 21, it should be treated similarly to alcohol and that the smell of it alone does not satisfy the probable cause requirement to effectuate a search of a vehicle. The court ruled that the defendant’s innocent explanation and the facts of the case did not give the officer probable cause to believe that there was a substantial chance of criminal activity, thus the search was illegal, and the evidence was properly suppressed. The Court said “Simply put, there was no evidence that would lead a reasonable officer to conclude that there was a substantial chance of criminal activity afoot,” meaning they did not have a lawful basis to search the car and recover any evidence.

If you or a loved one was subject to a search due to the alleged odor of marijuana, contact the Law Offices of Darryl A. Goldberg for representation or a consultation.


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