What’s That Smell? Not Probable Cause: Illinois Considering Banning Car Searches Based On The Smell Of Cannabis

Illinois legalized recreational cannabis use in 2020.[1] The move, according to state officials, was to revive communities ravaged by the War on Drugs,[2] promote “individual liberty,” and boost state revenue.[3] Cannabis advocates praised the decision, pointing out that “hundreds of thousands of people” would have their records expunged and emphasizing the law’s potential to “revitalize communities,” especially those “of color, who have long been disproportionately impacted by low-level cannabis convictions.”[4]

Since Illinois is only a few years into post-legalization, it is too soon to tell how state promises of “revitalization” are playing out, but the state is sure raking it in—making nearly $150 million from recreational sales, plus another $31 million from medical sales in the month of December 2022 alone.[5] That’s a lot of green. These are just raw sales numbers, but the state’s tax scheme gave it a hefty profit for 2022 (above $560 million), which makes sense given that Illinois taxes cannabis at forty percent above the actual sale price.[6] However, despite the state’s considerable economic success, there is confusion in terms of cannabis possession. So, here is an overview of what the Illinois Cannabis Regulation and Tax Act (“CRTA”) provides.

So, How Much Can People Have?

For authorized cannabis users (those over 21), the possession caps in Illinois are 30 grams of flower, 500 grams of Tetrahydrocannabinol (“THC”)[7] in (the broadly-phrased) “cannabis-infused product,” and 5 grams of concentrate.[8] Out-of-state visitors can only legally possess half of what Illinois residents can.[9] So, similar to Illinoisans, non-Illinoisans may also buy, possess, use, and transport cannabis products (subject to certain restrictions).[10] However, Illinois street sales (i.e., cannabis NOT sold at a dispensary) are still illegal, because (1) selling cannabis without a valid license from the Illinois Department of Financial and Professional Regulation is strictly prohibited, (2) doing so can result in fines up to $10,000, (3) only “legitimate, taxpaying business people, and not criminal actors” can sell cannabis in Illinois.[11] In other words, buying and selling cannabis can only be done legally at a licensed dispensary, and private, non-dispensary purchases are prohibited.

Where Can People Have It And Use It?

In terms of where cannabis possession is allowed, it is easier to frame it in terms of where it is not permitted. The following places are off limits: school buses, schools, correctional facilities, any residence that provides childcare or similar social services, and private vehicles—unless the vehicle is not open to the public, and the cannabis is in a “reasonably secured, sealed or resealable container and [is] reasonably inaccessible while the vehicle is moving.”[12] As for usage, prohibited locations include the above, as well as in other established non-smoking public areas, or in knowingly close vicinity to anyone under 21 years old.[13]

But vehicles have been particularly tricky in the post-legalization state. Specifically, post-legalization, people were and are still getting pulled over and charged with other crimes because the officer caught a whiff of cannabis—yes, a legal drug in the state—and used that to justify a vehicle search during a traffic stop.[14] Now, driving under the influence of cannabis is still clearly illegal,[15] but transporting it under the CRTA is permitted in a container that is reasonably (1) secured, (2) sealed or resealable, and (3) reasonably inaccessible while the vehicle is in motion.[16]

At the same time, the Illinois Vehicle Code (“IVC”) says that in addition to the CRTA regulations, cannabis containers must also be child-resistant and odor-proof.[17] So, what happens if  a cannabis user commits an ordinary traffic violation in Illinois, like speeding,[18] has not smoked in the car and has no cannabis in their physical possession, but has just a hint of cannabis odor on them—can officers still use that to search their car? Technically yes, but in Illinois, it depends on what kind of cannabis they smell.

Authorized Vehicle Searches Under The Fourth Amendment Generally

For some context, there are several ways in which officers can search a car. Consent is the easiest: when the driver just says, “sure, go ahead,” after an officer asks to search the vehicle,  the officer can search it.[19] If someone gets arrested for whatever reason (like a DUI) or if they otherwise abandon their car, officers can also search the vehicle after they impound it—these are known as “inventory searches.”[20] Neither of these require officers to have either reasonable suspicion or probable cause—the minimum requirements officers need to search an individual’s person or property (i.e., car) without violating the Fourth Amendment’s prohibition on unreasonable searches and seizures.[21] But what do terms like “reasonable suspicion” and “probable cause” even mean?

1.    Terry Car Searches—Reasonable Suspicion

As for the former, Terry v. Ohio lowered the standard of suspicion that officers need to search cars, but generally someone needs to give the officers a reasonable belief that they are dangerous and may gain access to weapons justify a Terry search.[22] Terry defined reasonable suspicion as “unusual conduct” based on “specific and articulable facts” that the officer can point to, which leads the officer “to conclude in light of his experience that” a defendant is engaging in criminal activity.[23]

2.    Automobile Exception—Probable Cause

However, even without reasonable suspicion, if the officers have probable cause to believe that a vehicle contains contraband (i.e., illegal drugs), they can search it—all of it—under the “automobile exception” to the Fourth Amendment’s search warrant requirement.[24] Probable cause is easy to get too. For example, officers need no warrant (or probable cause) to have a drug dog sniff around the outside of a car, so long as the sniff does not “unnecessarily” extend the overall duration of the traffic stop.[25]

This applies even if someone is pulled over for something like speeding and, perhaps alarmingly, that successful dog sniff is enough to give the officers probable cause to search their car.[26] Illinois defines probable cause as “facts and circumstances known to the officer at the time” that would “warrant a reasonable person to believe that there is a reasonable probability that the automobile contains contraband or evidence of criminal activity.”[27] However, in addition to dogs, an officer’s own nose can provide the same probable cause to search a vehicle, if the officer smells cannabis during a traffic stop.

Wait, If Weed Is Legal, How Can Officers Use The Smell To Search My Car?

As of this blog’s writing, Illinois determined under People v. Strout that: a trained officer’s detection of cannabis odor, burnt or raw, is sufficient probable cause for an officer to search cars.[28] However, two 2022 Illinois appellate cases issued some rather conflicting opinions on this subject with each case involving different forms of cannabis odor: burnt/smoked cannabis and raw/unsmoked cannabis, and slightly different facts.

The first was People v. Stribling, a case where the defendant was charged with unlawful weapon use after the officer observed various traffic violations, performed a traffic stop, and searched the defendant’s vehicle upon detecting “a strong odor of burnt cannabis emitting from inside.”[29] The officer testified that the defendant told him “someone smoked inside the vehicle ‘a long time ago’” and the officer then performed a vehicle search based on that and the above observations.[30]

The other was People v. Molina, where the defendant-passenger was charged “with unlawful possession of cannabis by a passenger in a motor vehicle” after the officer pulled the driver over for speeding, and smelled raw (i.e., un-smoked) cannabis coming from the car while approaching.[31] The defendant told the officer that he had a license for medical cannabis use.[32] However, the officer “smelled the strong odor of raw cannabis,” searched the vehicle, and found rolled joints in a small cardboard box along with “a clear plastic Tupperware container in the glove box that had suspected cannabis in it.”[33] Molina has another wrinkle—the case occurred in 2017 when cannabis was decriminalized, but before recreational use was legalized in 2020.[34] In Stribling, however, the facts occurred in May 2020, five months post-legalization.[35] Stribling was decided first, in September 2022, while Molina was decided two months later, in November 2022. So, how did things shake out on appeal?

Stribling— The Smell Of Burnt Cannabis Is Not Enough To Establish Probable Cause

The Third District Appellate Court in Stribling held that the officer’s detection of “the smell of burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle,” and upheld the trial court's grant of the defendant’s suppression motion, making clear that “the supreme court’s holding in Stout” no longer applies “to post-legalization fact patterns.”[36]

The Third District explained that the officer’s smell of burnt cannabis alone, along with the defendant saying that “someone (he did not state that it was himself) had smoked in the vehicle ‘a long time ago,’” was not enough to establish probable cause.[37] The Third District also noted that the defendant could legally possess “some cannabis” and it was legal for him to “have smoked cannabis, and then drive” if the THC in his system was below statutory limits.[38] Also, traffic violations alone are “not necessarily indicative of impairment,” considering there are also plausible “innocent” explanations for the cannabis odor.[39]

Molina—The Smell Of Raw Cannabis Is Sufficient To Establish Probable Cause

Molina went the other way, even though raw, unsmoked cannabis was involved. This was largely because the Fourth District Appellate Court emphasized the cannabis container requirements under the Illinois Medical Act (“IMA”), CRTA, and especially those under the IVC.[40] The defendant in Molina argued that since Illinois enacted CRTA and the IMA, the smell of cannabis alone is insufficient to support a finding of probable cause because (1) neither one requires cannabis to be stored in odor-proof containers like the IVC and (2) cannabis is no longer legally defined as “contraband.”[41]

However, the Fourth District rejected this interpretation that enacting the IMA and CRTA somehow “repealed” the IVC’s odor-proof requirements, considering the latter was amended after both the IMA and CRTA became effective.[42] Stribling did not address the odor-proof container requirement under the IVC because it was not at issue—the officer saw “no indication” of “smoke in the car,” saw no “marijuana or drug paraphernalia, nor did the defendant’s demeanor show that he was hiding anything.”[43]

Thus, Molina at least clarified that the IVC’s odor-proof requirement also applies to the “reasonably secured” container requirement under the CRTA.[44] In other words, drivers or passengers who transport cannabis in non-odor-proof containers “violate[] the [IVC] and commit[] a Class A misdemeanor.”[45] Based on that reasoning, even though possessing “small amounts of cannabis” is permitted in Illinois, there are still “(1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts to possess.”[46] Those three reasons, coupled with the Fourth District’s insistence that Stout’s holding was not limited to “suggest the smell of cannabis constituted probable cause only because cannabis was generally illegal,” the Molina court held that Stout is still good law.[47]

Unlike Stribling, Molina rejected the argument that there may be “innocent explanations for why someone’s car could smell of cannabis” and called out the Third District’s holding and reasoning in Stribling.[48] The Fourth District implicitly suggested that because the Illinois Supreme Court declined to overrule Stout in People v. Hill,[49] and because the Third District ignored the Fourth District’s holding in People v. Rowell,[50] that the Stribling Court erred in declaring that Stout no longer applied to post-legalization cases.[51]

While Molina may be right in saying that Stribling did not address Rowell, the Molina court itself failed to distinguish Stribling, because if it had, it would point out that the Stribling search occurred after legalization— the Stribling defendant was pulled over in May of 2020.[52] Both Hill and Rowell present purely different facts and law because those cases dealt specifically with pre-legalization searches of defendants that took place in 2017.[53] It is likely that both of these cases will reach the Illinois Supreme Court relatively soon, but until then, probable cause to search vehicles based on an officer’s perception of cannabis odor is unclear.

Where Do These Two Cases Leave Illinoisans In Terms Of Fourth Amendment Rights?

Essentially, Stribling and Molina reach near-opposite conclusions. The Third District says Stout no longer permits a finding of probable cause to search a vehicle based solely on the “smell of burnt cannabis, without any corroborating factors,”[54] while the Fourth District contends that “Stout remains good law and . . . the smell of raw cannabis, without any corroborating factors, is sufficient to establish probable cause to search a person’s vehicle.”[55]

Taken at face value, both decisions lead to different probable cause standards applying depending on whether the officer detects burnt cannabis or raw cannabis—with the scent of the former providing no probable cause to search a vehicle and the scent of the latter providing sufficient probable cause. This is admittedly confusing for Illinois residents. Fortunately, Illinois legislators may have a solution:

Outright banning vehicle searches based on an officer catching a whiff of cannabis coming from them.[56]

Probable Cause: Up In Smoke?

Meet Senate Bill 125 (“SB 125”), which amends the IVC—the statute at the center of Molina. If passed, SB 125 would legislatively overrule Molina not only by striking the “odor-proof” language from IVC’s cannabis container rule, but also partially overrule Stout, Hill, and Rowell by declaring that for legal cannabis users, “the odor of burnt or raw cannabis in a motor vehicle by itself shall not constitute probable cause for search of the motor vehicle,” its driver, or its passengers.[57]

While this is a relatively major bill, it is still uncertain whether it will pass, and some advocates suggest that further amendments should be added. It has advanced to the Illinois House as of April 14, 2023, so it is moving along, but amendments are certainly possible in the House.[58] In Springfield, Illinois Senator Rachel Ventura (D- Joliet) praised SB 125, noting that people of color are “unnecessarily pulled over far too often” and that cannabis odor, without more, “shouldn’t be one of those reasons (for their car to be searched).”[59] Yet, the American Civil Liberties Union (“ACLU”) waivered in its support for SB 125, citing concerns over a youth “loophole” under the proposed probable cause provision.[60]

Illinois Legislature “Blazing” Trails, But Youths Still Have A Stout Problem

Notice I said “partially” overrule and “legal” cannabis users. This is because SB 125 creates an implicit youth loophole. On its face, SB 125 only eliminates cannabis odor as valid probable cause for warrantless car searches if the car is “driven or occupied by an individual 21 years of age or over . . .”[61] In other words, drivers or passengers under 21 years old have a good chance of getting their vehicles searched if they smell like cannabis because they do not fall into the legislative exception to Stout that SB 125 would create. Thus, if SB 125 is not amended to apply to all Illinoisans while it works through the House, it will likely be a youth-car-search-free-for-all for officers in Illinois.

This amendment is necessary because as the ACLU rightly suggests, “there are many reasons why a vehicle may smell of cannabis,” even for youths.[62] For example, assume that a hypothetical mom or dad are cannabis-enthusiasts and their hypothetical  “under 21” youth-driver borrowed the family van to meet their friends at a movie. Then, on the way home, the youth driving mom or dad’s car gets pulled over for a busted taillight. Assume the youth driver has never touched cannabis, but the officer smells raw cannabis that mom or dad left in the car unsealed (say in the glove compartment) for whatever reason. How would this play out? Well, the officer would have probable cause to search the vehicle because our hypothetical driver is under 21, and possession of cannabis is illegal for this age group under the CRTA.[63]

Thus, in theory, and the youth could lose their driver’s license and/or be subjected to a fine depending on how the cannabis ended up in the car. The youth would probably not be on the hook for the fine as they would not be in “knowing” possession of mom or dad’s cannabis in this hypothetical scenario, as the statute requires. The point is that if SB 125 were enacted after closing the youth loophole, and probable cause based on cannabis odor alone were categorically barred, the odds of something like this happening would be greatly diminished. Most importantly, youth drivers would be entitled to the same Fourth Amendment protection as over-21 drivers.

Given how common this type of driving arrangement is for high schoolers, and considering how subjective it is to visually discern one’s age, SB 125 puts Illinois in a strange position. On one hand, if passed, it eliminates the confusion after Molina and Stribling’s near mirror-image holdings by flat-out rejecting cannabis odor as probable cause for warrantless car searches (for those over 21). On the other hand, if it fails in the Illinois House or does not pass for quite some time, Illinois officers still appear to have probable cause to search cars if they smell raw, unsmoked cannabis under Molina.[64]  But under Stribling, officers can no longer establish probable cause to search based solely on the smell of burnt cannabis if there are no corroborating factors to support cannabis usage.[65] Hopefully the high court steps in soon, as Illinois cannabis fans are likely stocking up on their odor-proof Molina containers[66] and air freshener[67] to minimize Stribling exposure. Until the Illinois Supreme Court reconciles Stribling and Molina, cannabis users in Illinois should be aware of the dueling probable cause standards.

Conclusion—Illinois Must Amend And Pass SB 125 To Protect Youth Drivers

As to SB 125, while it might bar Illinoisans from having their vehicles searched based on the smell of cannabis alone for those over 21 “as-is”, it raises bigger questions about what SB 125 would actually do if passed without amendment. As explained above, it does not stop officers from searching vehicles driven by minors based on cannabis odor by itself. This sounds justified because it is still illegal as to minors, until you consider the racial implications.

For example, as July 28, 2022, drivers of color are more likely to be pulled over in Illinois than white drivers.[68]  If SB 125 does not outright bar cannabis odor as sufficient probable cause to search a person’s vehicle—regardless of age—then logic suggests that SB 125 would just narrow that statistic to young drivers of color and young white drivers under 21 years old.[69]  However, if cannabis odor is banned as sufficient probable cause to search vehicles as to all drivers, the result is more equitable in accordance with CRTA’s “equity-centric” purpose. It would simply prevent officers from searching anyone’s vehicle based on the perceived cannabis odor, regardless of age, race, skin tone, or gender.

In sum, because Illinois case law governing probable cause for vehicle searches creates two different standards, the state legislature should move forward with its plan to legislatively overrule Stout and make clear that officers may not search anyone’s vehicle based on cannabis odor alone. The rule would create a bright-line for officers, likely reduce discriminatory searches of vehicles driven by youth of color and set a uniform standard of higher Fourth Amendment protection for all Illinois residents.

[1] Cannabis Regulation and Tax Act, 410 Ill. Comp. Stat. 705/1-1(b) (2019) (finding that “[i]n the interest of health and public safety” of Illinois residents, “the General Assembly . . . finds and declares that cannabis should be regulated in a manner similar to alcohol . . .”). See also Press Release, State of Ill., Gov. Pritzker Signs Most Equity-Centric Law in Nation to Legalize Adult-Use Cannabis (June 25, 2019) (on file with author) [hereinafter Equity-Centric] (announcing that starting January 1, 2020, the State of Illinois “legalized adult-use cannabis” and providing a “detailed fact sheet” laying out the “key elements” of the law).

[2] War on Drugs, History (May 31, 2017), www.history.com/topics/crime/the-war-on-drugs (discussing the “government-led initiative that aims to stop illegal drug use,” a war waged by then-President Nixon, which “increased funding for drug-control agencies and proposed strict measures, such as mandatory prison sentencing, for drug crimes.”). Former President Reagan took the “war” further in 1986, which many allege has “racist ramifications because it allocated longer prison sentences for offenses involving the same amount of crack cocaine (used more often by black Americans) as powder cocaine (used more often by white Americans).” Id.

[3] Equity-Centric, supra note 1 (internal quotations omitted).

[4] Id. (internal quotations omitted).

[5] Ill. Cannabis Reg. Oversight Off., Sales Figures: Illinois Cannabis Market, www.cannabis.illinois.gov/research-and-data/sales-figures.html (last visited Apr. 14, 2023).

[6] John Clark, Illinois’ Marijuana Tax Revenue is the Highest in the Country, Next to California, WGN9 (May 4, 2023, 5:32 PM), www.wgntv.com/news/illinois-recreational-marijuana/illinois-marijuana-tax-revenue-is-the-highest-in-the-country-next-to-california/#:~:text=Illinois%20Recreational%20Marijuana-,Illinois'%20marijuana%20tax%20revenue%20is%20the%20highest,the%20country%2C%20next%20to%20California&text=SPRINGFIELD%2C%20Ill.,to%20the%20Marijuana%20Policy%20Project. California is the only state with a higher tax rate on cannabis than Illinois, while Michigan employs a much less aggressive 10% tax rate on legalized cannabis purchases. Id. In 2022, in tax revenue alone, Michigan made almost $330 million dollars in legal cannabis and Illinois took in over $560 million. Id. California made more than both Illinois and Michigan combined, sitting at almost $820 million in cannabis taxes for 2022. Kyle Jaeger, California Marijuana Tax Revenue Nears $4 Billion, But Growth Has Stalled, State Analysts Say, Marijuana Moment (May 27, 2022), www.marijuanamoment.net/california-marijuana-tax-revenue-nears-4-billion-but-growth-has-stalled-state-analysts-say/.

[7] Terence Ng & Vikas Gupta, Tetrahydrocannabinol (THC), Nat’l Lib. Med. (Sept. 26, 2022), www.ncbi.nlm.nih.gov/books/NBK563174/ (“THC or Tetrahydrocannabinol is a major psychoactive component and one of the 113 cannabinoids recognized in cannabis.”). See also Cannabinoid, Nat’l Cancer Inst., www.cancer.gov/publications/dictionaries/cancer-terms/def/cannabinoid (last visited May 20, 2023) (defining cannabinoid as “[a] type of chemical in marijuana that causes drug-like effects all through the body, including the central nervous system and the immune system.”).

[8] 410 Ill. Comp. Stat. § 705/10-10(a) (2019).

[9] Id. at § 705/10-10(b). Out-of-state status is determined by dispensaries viewing of a purchaser’s government-issued identification, as the statute requires dispensaries to check a purchaser’s government-issued identification or by use of an “electronic reader or electronic scanning device to scan a purchaser’s government-issued identification . . . to determine the purchaser’s age and the validity of the identification.” Id. §§ 705/10-20(a), 15-85(a).

[10] Id. at § 705/10-5(a)(1). See also id. at § 705/1-7 (stating that persons are not considered “unlawful users” solely for possessing or using cannabis or cannabis paraphernalia). It is worth pointing out that knowing possession of cannabis is still illegal in Illinois, so long as the possession does not comport with the Cannabis and Regulation Act. See 750 Ill. Comp. Stat. 550/4 (“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person to knowingly possess cannabis.”).

[11] Id. at §§ 705/15-5(c), 15-155(a), 1-5(b)(4).

[12] Id. at § 705/10-35(a)(2).

[13] Id. at § 705/10-35(a)(3).

[14] People v. Stribling, No. 3-21-0098, 2022 WL 4299289, at *1, *6 (Ill. App. Ct. Sept. 19, 2022) (affirming the circuit court’s grant of defendant’s suppression motion where the defendant was charged with unlawful use of a weapon after officers searched his vehicle upon detecting a “strong odor of burnt cannabis emitting from inside the vehicle”). See also Claire J. Rice, Failing the Sniff Test: Using Marijuana Odor to Establish Probable Cause in Illinois Post-Legalization, Univ. Chi. L. Sch. Online (Sept. 23, 2022), www.lawreviewblog.uchicago.edu/2022/09/23/rice-probable-cause/ (proposing that the Illinois legislature make clear that cannabis odor alone cannot provide sufficient “probable cause to search a vehicle during a traffic stop.”).

[15] 410 Ill. Comp. Stat. §§ 705/10-35(a)(5), (b). You cannot drive a vehicle if you have certain blood or urine concentrations of THC within two hours of driving or otherwise physically controlling a vehicle. Id. at § 10-35(a)(5); 625 Ill. Comp. Stat. § 5/11-501(a)(7).

[16] 410 Ill. Comp. Stat. § 705/10-35(a)(2)(D).

[17] 625 Ill. Comp. Stat. § 5/11-502.15 (prohibiting the use of cannabis in any motor vehicle’s passenger area on any state highway, and the possession of cannabis by drivers or passengers in vehicles except in “secured, sealed or resealable, odor-proof, child-resistant cannabis container[s] that [are] inaccessible.”).

[18] 625 Ill. Comp. Stat. § 5/11-601 (2014) (prohibiting driving any vehicle on Illinois state highways at speeds more than the applicable statutory maximum speed limit).

[19] Schneckloth v. Bustamonte, 412 U.S. 218, 220, 249 (1973) (upholding a vehicle search after the driver said “[s]ure, go ahead,” resulting in officers recovering three stolen checks from under one of the seats and finding such searches valid so long as “consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.”).

[20] Colorado v. Bertine, 479 U.S. 367, 372 (1987) (allowing a vehicle search, which uncovered drug paraphernalia and cash after the defendant’s car was impounded following his DUI arrest, because police “inventory procedures serve to protect [a vehicle] owner’s property” while in police custody, “insure[s] against claims of lost, stolen, or vandalized property, and to guard police from danger.”). Officers can also search your car just based on the fact that you were arrested as a “search incident to a lawful arrest” also known as a “SILA” search. Arizona v. Gant, 566 U.S. 332, 351 (2009) (holding that officers “may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable” without a warrant or if no other “exception to the warrant requirement [of the Fourth Amendment] applies.”).

[21] Florida v. Royer, 460 U.S. 491, 498 (1983) (noting that “not all seizures of the person must be justified by probable cause to arrest for a crime” and stating that Terry v. Ohio “created a limited exception to this general rule: certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.”); See also U.S. Const. amend. IV (protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and shall not be violated, and no Warrants shall issue, but upon probable cause.”).

[22] Michigan v. Long, 463 U.S. 1032, 1051-52 (1983) (upholding the search a car’s interior under Terry v. Ohio, which revealed marijuana in a closed leather pouch, based on the officers’ reasonable suspicion that the driver was dangerous after observing a large knife in the car, which the defendant was about to re-enter).

[23] Terry v. Ohio, 392 U.S. 1, 21, 30 (1968).

[24] California v. Carney, 471 U.S. 386, 392-95 (1985) (holding that warrantless vehicle searches are permitted under the Fourth Amendment, based on the lower privacy expectations in vehicles, the fact that vehicles are subject to extensive state-regulation, and because they are readily mobile, so long as officers have probable cause to believe that a car contains contraband prior to the search).

[25] Illinois v. Caballes, 543 U.S. 405, 407-09 (2005) (holding that in a traffic stop case based on the driver’s speeding, use of a drug detection dog in absence of reasonable suspicion does not violate the Fourth Amendment where the stop was not “unnecessarily prolonged”, and that the dog’s detection of marijuana in defendant’s truck itself provided the requisite probable cause for the search).

[26] Id. at 407.

[27] Stribling, 2022 WL 4299289, at *2 (citing People v. Hill, 162 N.E.3d 260, 266 (Ill. 2020).

[28] People v. Stout, 477 N.E.2d 498, 498 (Ill. 1985) (holding that “corroboration is not required where a trained and experienced officer detects the odor of cannabis emanating from a defendant’s vehicle”); People v. Rice, 125 N.E.3d 546, 551 (Ill. App. Ct. 2019) (upholding officer’s probable cause search a vehicle based on the officer’s detection of “the odor of burnt cannabis”); People v. Smith, 982 N.E.2d 234, 239 (Ill. App. Ct. 2012) (holding that the smell of raw marijuana is sufficient to provide the requisite probable cause for an officer to conduct a warrantless vehicle search).

[29] Stribling, 2022 WL 4299289, at *1.

[30] Id.

[31] People v. Molina, No. 4-22-0152, 2022 WL 17248975, at *1 (Ill. App. Ct. Nov. 23, 2022).

[32] Id.

[33] Id. (emphasis added).

[34] Id. at *3.

[35] Stribling, 2022 WL 4299289, at *1.

[36] Id. at *6.

[37] Id. at *5.

[38] Id.

[39] Id. (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018) (internal quotations and alterations omitted)).

[40] Molina, 2022 WL 17248975, at *5.

[41] Id. (internal quotations omitted); compare 410 Ill. Comp. Stat. § 750/10-35(a)(2)(D) (prohibiting possession of cannabis “in a vehicle not open to the public unless the cannabis is in a reasonably secured, sealed or resealable container and reasonably inaccessible while the vehicle is moving”), with 625 Ill. Comp. Stat. § 5/11-502.1 (prohibiting passengers who hold medical cannabis cards from possessing cannabis “within any passenger area of any motor vehicle” on Illinois highways “except in a secured, sealed or resealable odor-proof, and child-resistant medical cannabis container that is inaccessible”) (emphasis added), and id. § 11-502.15 (prohibiting drivers from possessing cannabis on state highways “except in a secured, sealed or resealable, odor-proof, child-resistant cannabis container that is inaccessible”) (emphasis added).

[42] Molina, 2022 WL 17248975, at *4.

[43] Stribling, 2022 WL 4299289, at *5.

[44] Molina, 2022 WL 17248975, at *5 (“Given the legislative history of [the IVC, IMA, and CRTA], a plain, harmonious reading [of them] demonstrates that the legislature did not intend to end the requirement that cannabis be stored in an odor-proof container while being transported in a vehicle.”).

[45] Id. at *6.

[46] Id.

[47] Id.

[48] Id. at *7-8.

[49] People v. Hill, 162 N.E.3d 260, 268 (Ill. 2020) (holding that the officers smelling raw cannabis during a pre-legalization traffic stop in 2017, which revealed other illegal drugs, had sufficient probable cause to search the defendant’s vehicle). Hill expressly declined to overrule Stout, holding it was “unnecessary to address this narrow legal issue” because “the officer relied on more than the odor of raw cannabis,” which was mostly the defendant’s delay in pulling over. Id. at 265.

[50] People v. Rowell, 182 N.E.3d 806 (Ill. App. Ct. 2021) (upholding another 2017 vehicle search based on the scent of cannabis, noting that Stout was still “in force at the time of the search in this case”).

[51] Molina, 2022 WL 17248975, at *7-8.

[52] Stribling, 2022 WL 4299289, at *1.

[53] Hill, 162 N.E. at 263 (noting the incident occurred on May 29, 2017); Rowell, 182 N.E.3d at 808 (noting the incident occurred in February 2018).

[54] Stribling, 2022 WL 4299289, at *6.

[55] Molina, 2022 WL 17248975, at *7 (emphasis added).

[56] Nika Schoonover, Lawmakers Consider Banning Vehicle Searches Based On Cannabis Odor, Changes To Probation, ABC News (Apr. 12, 2023, 4:02 PM), www.abc7chicago.com/illinois-marijuana-is-legal-in-2023-laws-dispensary/13118646/.

[57] S.B. 0125, 103rd Ill. Gen. Assembly § 5 (2023), www.ilga.gov/legislation/fulltext.asp?DocName=10300SB0125&GA=103&SessionId=112&DocTypeId=SB&LegID=143516&DocNum=125&GAID=17&SpecSess=&Session= (proposing to amend 625 Ill. Comp. Stat. §§ 11-502.1, 11-502.15 of the Illinois Vehicle Code by striking “odor proof” from the container requirement and adding a separate subsection (e) to § 11-502.15, stating that “[i]f a motor vehicle is driven or occupied by an individual” 21 years old or over, “the odor of burnt or raw cannabis in a motor vehicle by itself shall not constitute probable cause for the search of a motor vehicle, vehicle operator, or passengers in the vehicle”).

[58] Schoonover, supra note 54.

[59] Id. (internal quotations omitted).

[60] Id. (reporting on ACLU of Illinois attorney Atticus Ballesteros, who predicts the bill, as written, “creates a workaround, or a loophole, that could have the effective of incentivizing police to target youth for unnecessary traffic stops or vehicle searches”) (internal quotations omitted).

[61] S.B. 0125, 103rd Ill. Gen. Assembly § 5(e).

[62] Schoonover, supra note 54.

[63] 420 Ill. Comp. Stat. § 705/10-15 (prohibiting possession of cannabis by any person under age 21 and noting that “[i]f the person under the age of 21 was in a motor vehicle” while in possession of cannabis, they may have their driving privileges revoked or suspended and be subject to a fine under the Cannabis Control Act) See also 720 Ill. Comp. Stat. § 550/4 (authorizing a fine up to $200 for unlawful “knowing” possession of cannabis).

[64] Molina, 2022 WL 17248975, at *7 (holding that “Stout remains good law and . . . the smell of raw cannabis, without any corroborating factors, is sufficient to establish probable cause to search a person’s vehicle”).

[65] Stribling, 2022 WL 4299289, at *6 (holding that “the smell of burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle”).

[66] See, e.g., Maverick Li, The 12 Best Weed Containers to Keep Cannabis Fresh: Its time your upgraded from a Ziploc, isn’t it?, Esq. Mag. (Mar. 22, 2022), www.esquire.com/lifestyle/g39474843/weed-containers/.

[67] See, e.g., Savannah, The Best Air Fresheners for Weed Smell, Leafbuyer (Mar. 4, 2018), www.leafbuyer.com/blog/the-best-air-fresheners-for-weed-smell/.

[68] 2021 Illinois Traffic Stop Data Shows Continued Racial Inequities in Stops, Searches, ACLU (July 28, 2022), www.aclu-il.org/en/press-releases/2021-illinois-traffic-stop-data-shows-continued-racial-inequities-stops-searches.

[69] Or theoretically, those drivers of color over age 21 if the officer forgets (or claims to forget) to ask for identification before catching a whiff of cannabis.