Court Reminds Cops That Smelling Decriminalized Weed Ain’t The Probable Cause It Used To Be

If there’s anything that’s going to severely reduce the number of pretextual stops performed by cops, it probably won’t be the handful of traffic stop reform efforts being made by legislators. It’s going to be the continued legalization (or decriminalization) of marijuana possession.

One of law enforcement’s favorite tricks is to pull over a car for bullshit reasons, pretend officers smelled marijuana, and engage in a warrantless search in hopes of finding something far more illegal than the pretense that initiated the stop.

But “odor of marijuana” is no longer as effective as it used to be. Smelling marijuana now just means smelling a legal substance in many cities and states. It’s like a cop initiating a search after saying they smelled gasoline. Smelling burnt marijuana is the hot new action, since it means officers could be dealing with someone driving under the influence.

The problem with relying on that supposed indicator of crime is that it doesn’t immediately mean officers have permission to search stopped vehicles. At best, they can engage in an equally pretextual “inventory search” if the vehicle needs to be towed. But even at best, smelling marijuana is no longer a permission slip for invasive searches of stopped vehicles on its own.

There’s more precedent on the law books now, thanks to the Illinois Supreme Court. A recent ruling makes it clear that cops are no longer free to search vehicles simply because they’ve (allegedly) detected the odor of a substance that’s now a misdemeanor to possess, rather than a felony. Cops can issue citations, but they can’t treat smelling weed like it’s probable cause for a search. (via FourthAmendment.com)

This stop, in which Illinois State Police Officer Hayden Combs imitated a stop and search of resident Ryan Redmond’s car, was completely pretextual. The state’s top court doesn’t make a note of it, but its recounting of the stop in its precedential decision [PDF] makes it clear this stop had nothing to with Redmond’s driving.

On September 15, 2020, Officer Combs saw a car with an improperly secured license plate traveling at a speed of 73 miles per hour in a 70-mile-per-hour zone on Interstate 80 in Henry County.

Yep, that’s what we want to spend our law enforcement dollars on: hassling people for missing a screw or two from their license plate mounts while traveling at a speed that normally would be considered a speedometer accuracy fluctuation, rather than a driver thumbing his nose at the law while endangering other drivers.

Once Officer Combs had stopped the car, he turned to a bunch of bullshit to justify a search.

Combs initiated a traffic stop of Redmond’s vehicle. Combs approached on the passenger side, and when Redmond rolled down the passenger-side window, Combs smelled burnt cannabis. According to the complaint, Combs searched Redmond’s car and found one gram of cannabis in the center console in a plastic bag.

There are two problems here. First, the discovered cannabis was of the un-burnt variety. Second, under state law, that amount doesn’t support criminal charges. It’s an amount that’s only subject to a citation.

Furthermore, the officer didn’t come across anything that supports his claim that he smelled “burnt” marijuana. On top of that, he admitted lots of other stuff that undercut his supposition he had a legal right to search the car.

Combs’s examination of the vehicle did not reveal anything that was lit or currently emitting the odor of cannabis from the vehicle. Combs also agreed that he did not see any cannabis in plain view. Combs had Redmond step out of his vehicle and seated him in the squad car. With Redmond out of his vehicle, Combs could still smell the odor of burnt cannabis in the vehicle, but he could not recall smelling the odor of burnt cannabis on Redmond’s person. Combs admitted he saw no signs of impairment when he spoke to Redmond.

Redmond did not produce his license and registration. Using information obtained from Redmond, Combs retrieved a record showing that Redmond had a valid Illinois license with a Chicago address. Combs testified that Redmond failed to give a straight answer to questions about where he lived, but Combs admitted Redmond said he lived in Chicago and had stayed with a friend in Des Moines.

Then Combs went on to claim that Redmond was probably in the drug trafficking business because (in a statement that surely must come as a surprise to Des Moines, Iowa) both Chicago and Des Moines are “hubs of criminal activity.”

But it’s hard to pretend finding a gram of weed makes someone a drug dealer, especially when that quantity isn’t subject to criminal charges in Illinois. Resolving a split in the state’s lower courts, the state’s top court says the smell of marijuana (whether “burnt” or not) is no longer sufficient on its own to justify the search of stopped vehicles.

[B]ased on our precedent and the state of cannabis laws at the time of the search, we hold that the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle. In light of our holding, Stout’s core holding—that an officer’s detection of the odor of burnt cannabis
emanating from a vehicle, standing alone, establishes probable cause to conduct a warrantless search of the vehicle—is no longer valid for searches that occurred on or after January 1, 2020.

Note that last sentence: not only does this set precedent going forward, but the ruling is retroactive, affecting anyone who was subjected to this kind of law enforcement bullshit since the law’s enactment in 2020. Good stuff. More top courts should do this sort of thing more often, rather than just refuse to address the (pardon the pun) burning question of legality or constitutionality until a case more to its liking bubbles to the surface.

In addition, the court points out that a poorly mounted license plate adds nothing to the justification for a search. This is purely an external vehicle issue. No amount of searching the interior is going to uncover any more evidence of this “crime.”

The evidence is suppressed. Going forward, law enforcement officers in the state are now on notice simply claiming to smell a (mostly) legal substance isn’t going to prevent illegal searches from being rejected by the state’s court. And, going backwards, anyone with an unresolved motion to suppress or a string of rights violations initiated by searches predicated on cops smelling weed now have all the precedent they need to take cops to court.