As of January 1, 2020, Illinois allows adults over the age of 21 to lawfully possess and used recreational cannabis under the Cannabis Regulation and Tax Act.  Illinois joined 10 other states (Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington) that allow the recreational use of marijuana for adults. 

The issue of whether the smell of cannabis alone was sufficient for a warrantless search of a vehicle recently came before the Illinois Supreme Court in the case of People v. Hill, 2020 IL 124595 (Ill. 2020).  The defendant in the Hill case specifically requested that the Court overturn the earlier People v. Stout decision.  In reviewing the facts of Hill case, however, the Court noted that the investigating officer was not relying on the smell of cannabis alone.  That officer visibly saw a loose cannabis bud in the back seat of defendant’s vehicle and that the defendant had delayed in pulling the vehicle over at the initiation of the traffic stop.  Thus, the case had additional evidence, and not just the odor of cannabis alone, to justify the search of the vehicle. 

The Illinois Supreme Court had an opportunity here to specifically uphold People v. Stout as the law of the land in Illinois.  Although some parts of the opinion seem to favor Stout’s ruling as good case law (see *P33), the Court refused to address the validity of Stout.  (*P18).  In fact, the Court failed to cite the Stout case as legal authority at all in rendering its decision.  Thus, practitioners are curious about the future Sniff-and-Search, especially given enactment of the Cannabis Regulation and Tax Act in June of 2019, which legalized the possession and use of small amounts of recreational cannabis for adults as of January 1, 2020.  410 ILCS 705/1-1 et. seq.

Other courts that have addressed this issue have been a mixed bag.  For example, Massachusetts has found that the odor of cannabis alone no longer justifies a search. See Commonwealth v. Cruz, 459 Mass. 459 (2011). A court in New York agreed with the reasoning of Cruz case in People v. Brukner, 51 Misc. 3d 354 (2015).  Vermont, Colorado, and California, however, still hold sniff and search despite the decriminalization laws on their books. State v. Senna, 2013 VT 67 ; People v. Zuniga, 372 P.3d 1052 (2016) People v. Strasburg, 148 Cal. App. 4th 1052 (2007). 

Finally, in September of 2022, the Appellate court gave us the answer in the case of People v. Stribling, 2022 IL App (3d) 210098.  The Appellate Court said, “We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with the supreme court’s holding in Hill and its treatment of the analogous situation regarding alcohol. Thus, the supreme court’s holding in Stout is no longer applicable to postlegalization fact patterns.”  

Article written by Illinois Criminal Defense Attorney and Host of the YouTube Channel “Law Talk for Non-Lawyers” Clyde Guilamo.