In a unanimous decision in the case of The State of Illinois v. Stribling, Case No. 3-21-0098, the Third District of the Illinois Appellate Court recently ruled that the smell of “burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search [a] vehicle.” Like many other events that have occurred recently, this is a significant step towards destigmatizing cannabis consumption. In overturning precedent regarding cannabis that had been in place since 1985, the court relied on the fact that recreational cannabis recently became legal in Illinois. Because of that legalization, the court reasoned, “there was no evidence that would lead a reasonable officer to conclude that there was a substantial chance of criminal activity afoot.”

The underlying action is a charge for unlawful use of a weapon that stems from a 2020 traffic stop, where an officer searched the defendant’s car after noticing the smell of cannabis. The defendant filed a motion to suppress evidence that was granted, and the appellate court upheld that decision. In the trial court and on appeal, the defendant argued that the smell of cannabis should be treated similar to the smell of alcohol now that both are legal in Illinois, and the court agreed.

It should be noted that the officer did not believe the defendant was under the influence of cannabis at the time of the search, and in fact, the defendant told the officer that cannabis had been smoked in the car “a long time ago.” Whether current impairment of the driver of a vehicle could give rise to probable cause to search the vehicle is therefore a question not reached by this decision. Driving while under the influence of cannabis is, and always has been, a crime and the legalization of recreational cannabis does not change that, so a court’s analysis of what gives rise to probable cause under that scenario will necessarily be different.