Illinois Supreme Court rules smell of marijuana enough for vehicle search

Even though marijuana is legal in Illinois, the state’s highest court has ruled that the smell of raw cannabis is enough for police to search a vehicle.

The case stems from a 2020 traffic stop in Whiteside County when a trooper said he smelled fresh cannabis, conducted a search of the vehicle and found several joints of marijuana in a cardboard box. Victor Molina of Moline was a passenger in the car and was charged with misdemeanor possession of marijuana by a passenger.

Molina’s attorney James Mertes argued to the Illinois Supreme Court that the case has nothing to do with the right to use marijuana.

“Ultimately this comes down to our Fourth Amendment rights, it is an issue of privacy,” said Mertes. “A lot of people have viewed this case as being about cannabis rights. I’ve never viewed it as that, it is more important than that. It’s a case about our constitutional rights."

The 4-2 majority opinion, written by Justice P. Scott Neville Jr., highlighted a 2019 law that stipulates that marijuana in a car must be transported in a sealed, odor-proof container.

If a police officer can smell raw cannabis, it is “almost certain” that the cannabis is not in an odor-proof container, which is a violation of state law, Neville reasoned.

The ruling follows another decision in September by the high court that the smell of burnt cannabis is not enough probable cause to search a vehicle.

The disparity, that the smell of unsmoked marijuana is justification for a warrantless search, while the smell of smoked pot is not, “defies logic,” Justice Mary O’Brien wrote in her dissent.

Mertes said he will appeal the decision.

Recreational marijuana has been legal since 2020 in Illinois, but it is illegal to smoke or consume cannabis in a moving car.