Illinois Supreme Court To Decide If Smell Of Marijuana Justifies Police Search

Jan 27, 2020

The Illinois Supreme Court is considering whether smelling marijuana is justifiable cause for police to search someone's car.

In 2017, Decatur police pulled over a man they believed to be a fugitive. The officer allegedly smelled "raw" cannabis and saw the butt of a joint in the car. He then searched and found other contraband, leading to his arrest.

At the time, marijuana possession up to 10 grams was a ticket — not a crime. Attorney Zachary Rosen argues police didn't have reason to believe there was a larger amount in the vehicle.

"Contraband isn't always clearly contraband anymore,” he told the court. “The officer needs to have evidence of a crime. And simply smelling the cannabis and seeing the cannabis doesn't give the officer the reasonable belief that a crime has occurred or is about to occur."

Rosen said other paraphernalia — like a scale or pipe — could have suggested a criminal amount of cannabis was in the car.

Although this case deals with Illinois’ marijuana decriminalization law, Rosen said the court’s decision will have implications for traffic stops after cannabis legalization.

"The same question that the officer was pondering alongside Mr. Hill's car, every officer WILL ponder under legalization. And the [it’s] question, 'Do I have more or less than the amount?' that's important."

The new limit is 30 grams or less.

Garson Fischer, representing the state, argues that because officers can still seize larger amounts of the drug, they should be able to search for it.

The case is People vs. Charles D. Hill, Case No. 124595.