Illinois Supreme Court to decide whether smell of pot is grounds to search a car

With marijuana now legal in Illinois, the state high court heard arguments Tuesday on whether the smell of marijuana grants police the right to conduct warrantless vehicle searches.

The court’s decision could have major implications for policing in the era of legal marijuana, though the stop at issue occurred before the law legalizing marijuana took effect Jan. 1.

At issue before the Illinois Supreme Court was the case of Charles Hill, who was pulled over as he was driving in June 2017 by an officer who said that he smelled raw cannabis after he approached the vehicle and that he then saw a small bud in the backseat.

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The smell and sight led him to believe he had probable cause to search the car, the officer testified. The search revealed a small rock of crack cocaine, which led to a possession charge. No marijuana bud was recovered and no marijuana charges were filed.

At the time of the stop, medical exemptions were permitted; without one, 10 grams or less of marijuana was a civil offense resulting in a fine of up to $200.

Assistant Appellate Defender Zachary Rosen

Illinois Supreme Court

Assistant Appellate Defender Zachary Rosen argues on behalf of driver Charles Hill before the Illinois Supreme Court.

Hill’s attorney, Zachary Rosen, argued in court Tuesday that the smell of marijuana would not necessarily indicate that a crime was being committed, and therefore was not in itself sufficient to give probable cause to search a vehicle.

“So the question that this case brings is, when does an officer have probable cause, and does the fact that the legislature has passed some new laws change the court’s determination of when an officer has probable cause?” Rosen asked.

Many states with legal or medical marijuana have wrestled with this issue. A Pennsylvania judge ruled in 2019 that the smell was not enough to search a car since the passenger had a medical marijuana card.

“The ‘plain smell’ of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle,” Lehigh County Judge Maria Dantos wrote in that case, because it is “no longer indicative of an illegal or criminal act.”

Massachusetts and Colorado courts have both ruled that the smell is not enough to justify a search.

Maryland, which allows medical marijuana, ruled that the search was in fact justified since the drug was still considered contraband – a key issue in Hill’s case.

Rosen noted that the state Supreme Court had ruled in 1985 that the smell of cannabis was sufficient basis for an officer to conduct a warrantless search. “But,” he added, “that case, and the other cases that reached that same conclusion, reached that conclusion because the laws that were in effect at the time made the possession of all amounts of cannabis entirely, criminally, illegal.”

Assistant Attorney General Garson Fischer argued that, since marijuana was still considered contraband, the longstanding precedent still applied.

“Because decriminalization doesn’t mean legalization, at the time of the search of the defendant’s vehicle, marijuana was contraband, and based on this court’s longstanding precedent, the distinctive odor of marijuana provided probable cause for the officer to search the defendant’s vehicle,” he said.

Fischer argued that the medical marijuana exemptions in place did not alter the probable cause equation, which he described as “a probability, a likelihood determination.”

“The fact that a very small number of people under very specific circumstances in 2017 could obtain a license to possess marijuana doesn’t change the fact that the odor of marijuana provided a very high probability to believe that it was contraband and illegally possessed,” he said.

Rosen responded that Fischer’s argument would mean the loss of Fourth Amendment rights for all medical marijuana users. “That standard doesn’t make sense anymore when there is room for some sort of legal possession in the state of Illinois,” he said.

The court typically takes about five months to issue decisions regarding criminal cases.