Illinois Supreme Court: Burnt Cannabis Odor Insufficient for Search, Unburnt Odor Decision to Come

On September 19th, as anticipated by The Cole Memo*, the Illinois Supreme Court issued a key ruling on the cannabis odor issue. The Court ruled that the smell of burnt cannabis alone can no longer justify a vehicle search. While the ‘odor-proof container’ language was a central topic in a hearing earlier this year, the Court chose to focus on burnt cannabis in this ruling. The issue of unburnt cannabis remains unresolved, with the Court indicating that a separate ruling will follow to address it.

In short, the court divided its focus: ruling on odor of burnt cannabis now, with issue of odor unburnt cannabis to be decided later.

*Earlier this week, I had predicted that Thursday’s decision would include a ruling on the ‘odor-proof container’ language—one of the key topics in a Supreme Court hearing earlier this year. However, the ruling ultimately took a different direction.

Legal professionals recently joined me to discuss the details of this case. You can listen or watch that conversation here.

A Surprising Court Move

In what the Chicago Tribune described as an ‘unusual’ move, the court consolidated two cases with opposing appellate rulings, only to later separate them for individual decisions.

Though the Supreme Court heard the cases in consolidated arguments earlier this year, the justices only ruled on Redmond’s case Thursday. The decision briefly mentioned the Molina case in a footnote saying the court was not addressing “the validity of the odor-proof container requirement” in the Redmond decision.

ABC 7 Chicago

At this point, I don’t have a clear explanation for why the Court decided to split the rulings. For now, all we have are predictions.

What Does This Ruling Really Mean?

According to legal professionals I’ve spoken to, this Illinois Supreme Court ruling means that law enforcement officers can no longer rely solely on the smell of burnt cannabis to justify a vehicle search without a warrant. While the court emphasized that the smell of burnt cannabis can still be considered alongside other factors in determining probable cause, it cannot be the sole reason for a search.

This marks a significant change for law enforcement practices in Illinois, but the issue of unburnt cannabis remains unresolved. The Illinois Supreme Court is expected to issue a separate ruling on that matter soon.

You might be wondering: why is the odor of unburnt cannabis being treated as a separate legal issue?

Unburnt Cannabis Odor: Still a Cause for Concern

According to the Chicago Tribune, the Illinois Supreme Court chose to focus solely on the issue of burnt cannabis. In footnote #5 of the ruling, the Court clarified that the issue of unburnt cannabis will be addressed in a separate decision.

Why Does the Odor of Unburnt Cannabis Remain an Issue?

As it stands, law enforcement can still use the smell of raw or unburnt cannabis as the primary basis for a vehicle search—at least until the Illinois Supreme Court issues a separate ruling on the Molina case, as referenced in footnote #5 of their recent decision.

Why? In 2020, the Cannabis Regulation and Tax Act introduced a new offense, making it a Class A misdemeanor to possess cannabis in a motor vehicle unless it is stored in a sealed, child-proof, odor-proof container.

Source: Illinois Cannabis Regulation Oversight Office

As a result, based on discussions I’ve had with legal experts, the moment you purchase a cannabis product (like flower) from the dispensary and enter your vehicle, you will find yourself out of compliance with the law. From what I understand, consumers are less likely to encounter odor-related issues with cannabis edibles, as they generally do not emit a strong cannabis scent and are less aromatic compared to fresh flower products.

Attorney Galholtra hosted an event, which I attended, on this exact subject. I have also discussed this subject with cannabis defense attorney Evan Bruno. Evan wrote an article on the shortcomings of Illinois’ cannabis law, which can be found here.

Law Enforcement’s Role in Blocking Reform

On May 23, 2024, a hearing was held on HB2911 in the Senate Executive Committee. The bill aimed to remove the “odor-proof container” requirement from the law, a step toward addressing concerns over the continued criminalization of cannabis consumers.

However, Jim Kaitschuk, representing the Illinois Sheriffs Association, opposed this change, arguing that it would weaken enforcement efforts. To address the concerns raised by law enforcement, the “odor-proof” language was ultimately reinserted into the bill.

Real Stories: The Impact of the Odor-Proof Law

My mini-documentary, now available here, focuses on the odor-proof container issue. The sneak peek below features testimony from an attorney who has defended clients against these charges, and a citizen who was accused of this crime by Illinois law enforcement.

What’s Next for Illinois Cannabis Odor Laws?

Legal professionals on The Cole Memo podcast predicted that the “odor-proof” language would remain part of cannabis law following the Supreme Court ruling.

With this “unusual” move by the Court, I can’t help but wonder if their prediction will hold true, particularly regarding the smell of unburnt cannabis.

Legal Insights: Two Professionals Break Down the Details of This Case

Criminal defense attorneys Evan Bruno and Bob Galhotra recently appeared on The Cole Memo Podcast to discuss this issue. You can tune into that episode here or by viewing below video.

Full Illinois Supreme Court Ruling

You can read the entire ruling from the Illinois Supreme Court Case below

People v. Redmond, 2024 IL 129201 Download

Coverage from Other Outlets

Chicago Tribune – “Smell of burnt cannabis alone no longer justifies a police search of a vehicle, Illinois Supreme Court rules”
Chicago Sun-Times – “Smell of marijuana isn’t enough to justify a search, Illinois Supreme Court rules”
ABC 7 Chicago – “Illinois Supreme Court rules smell of burnt marijuana not cause for warrantless vehicle search”