Ordinarily, police in Illinois cannot legally search a vehicle incident to a routine traffic stop, such as for speeding or failure to signal. However, a police officer may have probable cause to search, even without a warrant, if there is apparent and articulable evidence of a crime. The smell of alcohol or marijuana is sometimes used as the basis for a warrantless search. However, a proposed state law would end this practice.

The bill, now pending in the state legislature, comes just three years after Illinois legalized possession and use of various forms of cannabis subject to certain exclusions and limitations. The proposed law would prevent police from using marijuana odor as the (sole) evidence to establish probable cause to search a vehicle, the driver and any passengers.

Proponents of the legislation argue that since possessing and using cannabis is now generally legal in the state, the use of marijuana should not be a basis of a search for suspected drug crime activity. Detractors assert that the smell of marijuana can and should be used as an indicator of driving impairment. For many decades, the police have used the odor of alcohol from a vehicle as probable cause for a warrantless search. Like marijuana, alcohol is legal to possess and consume with some limitations and restrictions. The more difficult question is why a search is necessary if the driver’s drug or alcohol impairment can be determined by blood testing.

The pending legislation does have certain exceptions and limitations. The law would prevent the odor of cannabis from being used as the only basis for probable cause to search. Probable cause could still be established through other means. For example, if a police officer smells marijuana during a traffic stop and also sees an illegal weapon (i.e. automatic gun) in plain view, the search would likely be lawful. The proposed law also discriminates based on age. In its present form the bill only applies to those aged 21 years and older. This is because the legal age to purchase/possess cannabis is 21 years.  

The Skinner Law Firm, P.C. in Bridgeview, Illinois is one of the Cook County’s most experienced criminal defense law firms. If you have been charged with a drug crime, feel free to contact us online or call 312-635-6459 for a free initial consultation.