CAN AN OFFICER SEARCH MY CAR BASED ON THE SMELL OF MARIJUANA?

UPDATED March 28, 2023

The legalization of recreational marijuana has caused some confusion regarding its effect on DUI laws.  Furthering the confusion, the different appellate courts appear to disagree.  The Fourth District Appellate Court in People v. Hall and People v. Molina maintains that the smell of marijuana by itself is enough to establish probable cause to search a vehicle. (The Fourth District is based in Springfield and covers 41 downstate counties.)  In contrast, the Third District Appellate Court (covering Bureau, DuPage, Grundy, Iroquois, Kankakee, LaSalle and Will counties) has held that smell without corroborating factors is not enough.  This decision is likely to be revisited as the issue remains a complex one.

Below we discuss a case out of the Third District.

Effective January 1, 2020,   410 ILCS 705/10-10  permits  Illinois residents 21 years or older to possess no more than 30 grams of cannabis, 500 milligrams of tetrahydrocannabinol (THC) in a cannabis-infused product, or 5 grams of cannabis concentrate. Possessing more than those amounts or delivering any amount remains illegal. You also may not possess cannabis in a vehicle unless it is in a “reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving.”

In People v. Stribling, an officer stopped the defendant’s car for disobeying a traffic law.  Based on the strong odor of burnt cannabis and defendant’s statement that someone had smoked inside the vehicle “a long time ago,” the officer searched defendant’s car. The court held that the officer did not have probable cause for the search.  It was legal for the defendant to smoke cannabis and drive as long as the concentration in his blood or urine did not pass the threshold amount for DUI. The evidence did not show that the officer had any concerns with the defendant’s blood concentration or that there was any impaired driving.

With the changes brought about by the Cannabis Regulation and Tax Act, cases holding that the odor of burnt cannabis without other corroborating evidence is sufficient to
establish probable cause  are no longer applicable.  (See People v. Redmond.)

If you have been charged with DUI or a similar offense, contact an experienced attorney immediately.  An attorney can review your case for your best possible defense.  Did the officer have probable cause to stop or search you?  Can the state prove all the elements of the offense beyond a reasonable doubt?  Even if the search and stop were legal and the evidence against you is overwhelming, an attorney who is respected in the courthouse may be able to negotiate a more favorable plea agreement than you could on your own.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)