Does Illinois’ pot law pass the smell test? Scent of weed can still prompt cops to search vehicles

For many folks, the fragrance of weed is unmistakable.

But the mere smell of pot can still prompt cops to search a vehicle in Illinois — despite the state fully legalizing the drug at the start of the year.

In an article published Monday by the Illinois State Bar Association, a former prosecutor and a public defender raised questions about what exactly constitutes probable cause for a search when a cop or drug-sniffing dog smells marijuana. Earlier this month, lawmakers in Virginia passed two bills preventing officers from conducting similar warrantless searches that are currently awaiting approval from the state’s governor.

While the law that legalized pot across Illinois prohibits the use of cannabis in a vehicle and requires that weed is transported in an “odor-proof” container, one of the article’s authors warned that problems could potentially arise for folks who have gotten high elsewhere.

“It’s just like a cigarette. That smoke smell lingers,” Emily Fitch, a public defender in Marion County, told the Sun-Times. “They could just be smoking it in their home and it just sticks to their clothing and they just reek like cannabis.” In fact many strains of today’s high-powered weed are commonly known as “loud” based on their overwhelming sensory effects.

Fitch and her colleague, former Fayette County Assistant State’s Attorney Brenda Mathis, note in the article that there are different legal precedents for establishing probable cause in Illinois.

If a drug-sniffing dog detects the smell of weed in as much time as it would take to write a ticket, that’s enough for officers to search a vehicle. But if a cop smells weed, there needs to be other factors that prompt a search.

The precedent for police officers was established in a case decided by the Illinois Supreme Court earlier this year. The defendant in that case, Charles Hill, was found with a small rock of crack cocaine when a Decatur police officer searched his vehicle after smelling marijuana and spotting a small “bud” in the back seat.

The court ultimately ruled that the search was acceptable based on the “totality of the circumstances” — and marijuana still being illegal in some situations, the attorneys wrote. But they claimed the ruling failed to “determine whether the odor of cannabis alone constitutes probable cause to search.”

“The Hill case is a crucial case for prosecutors and defense attorneys alike as it will provide clear guidance in cases involving the smell of cannabis as a basis for a search and seizure,” Fitch and Mathis wrote. “Although this area of law is far from settled, this case provides insight as to what is coming in the future.”

Ultimately, the attorneys wrote that “multiple issues” would be clarified through further case law and additional legislative action.

It can be hard to determine when or where marijuana was consumed based solely on its odor.

State Reps. Kelly Cassidy and La Shawn Ford both said they ultimately hope to further address the core issue of what constitutes probable cause, which was discussed as lawmakers debated the legalization law. Ford specifically said more protections should be established “to make sure a person’s civil liberties aren’t violated.”

“That smell is so strong,” Ford said. “I’m sure everyone’s been in a public space where someone had just smoked. Or they had probably smoked hours [earlier] and they walk past you and you smell it.”

For Cassidy, the legalization of hemp, which is not intoxicating, “adds another layer of challenge to this puzzle” because that legal substance smells much like cannabis. She added that the issue of what prompts a search is likely among the cannabis-related issues that will “have to be constantly monitored and looked at and adjusted.”

Fitch and Mathis make it clear that cannabis law is still being established and enforced through a patchwork of state laws and legal decisions. In the meantime, Fitch believes more needs to be done to inform Illinoisans about what’s legal.

Fitch said some of her clients have been surprised to learn the legal age for possessing weed is 21, while others were under the impression that it’s now okay to smoke in a car. She thinks additional public service campaigns could help get across some the finer points.

“Legally, ignorance of the law is not an excuse,” she said. “You don’t get away with it just because you didn’t know, but it may help a little bit if people did know.”