People v. Redmond

2024 IL 129201

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 129201)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RYAN

SHAVOR DON REDMOND, Appellee.

Opinion filed September 19, 2024.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

Chief Justice Theis and Justices Overstreet, Cunningham, Rochford, and

O’Brien concurred in the judgment and opinion.

Justice Holder White took no part in the decision.

OPINION

¶1 In this case we must determine, after the recent changes to Illinois’s cannabis

laws, whether a police officer’s detection of the odor of burnt cannabis, considered

alone or in conjunction with other facts, provides probable cause to conduct a

warrantless search of a vehicle. Illinois State Police officer Hayden Combs

conducted a search of Ryan Redmond’s vehicle based on, inter alia, his detection

of the strong odor of burnt cannabis emanating from the vehicle. The State

primarily argues that Combs had probable cause to suspect that a search of the

vehicle would uncover evidence that cannabis was improperly contained in the

vehicle or, more likely, uncover evidence that Redmond had used cannabis on his

trip from Des Moines to Chicago. See 625 ILCS 5/11-502.15(a) (West 2020) (“No

driver may use cannabis within the passenger area of any motor vehicle upon a

highway in this State.”). Combs searched Redmond’s car and found one gram of

cannabis inside the center console in a plastic bag.

¶2 The State charged Redmond with unlawful possession of cannabis in violation

of section 4 of the Cannabis Control Act (Control Act) (720 ILCS 550/4(a) (West

2020)) and unlawful possession of cannabis by a driver in violation of section 11-

502.15(b) of the Illinois Vehicle Code (625 ILCS 5/11-502.15(b) (West 2020)).

Redmond filed a motion to suppress the cannabis. The Henry County circuit court

granted the motion, and the appellate court affirmed, holding that recent changes to

the law pertaining to cannabis made the odor of burnt cannabis, standing alone,

insufficient to justify a warrantless search of an automobile. 2022 IL App (3d)

210524, ¶ 21.

¶3 We allowed the State’s petition for leave to appeal pursuant to Illinois Supreme

Court Rule 315 (eff. Oct. 1, 2021). We also allowed the American Civil Liberties

Union, ACLU of Illinois, National Association of Criminal Defense Lawyers, and

the Illinois Association of Criminal Defense Lawyers to file an amici curiae brief

on behalf of Redmond’s position. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). For

the following reasons, we affirm the judgment of the appellate court.

¶4 I. BACKGROUND

¶5 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. 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

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center console in a plastic bag.

¶6 A. Circuit Court

¶7 On June 29, 2021, Redmond filed a motion to suppress the evidence—the

cannabis—the police found in his car. The court heard the motion on August 4,

2021.

¶8 At the hearing on the motion, Combs testified that he stopped Redmond because

his vehicle was travelling at 73 miles an hour in a 70-mile-per-hour zone (see 625

ILCS 5/11-601(f)(1.5) (West 2020) (setting the “maximum speed limit” at “70

miles per hour upon any interstate highway”)) and the vehicle had an improper

display of registration (see id. § 3-413(b) (West 2020) (“every registration plate or

digital registration plate shall at all times be securely fastened in a horizontal

position to the vehicle”)). 1 When Combs approached, he smelled the odor of burnt

cannabis emitting from the vehicle. During the State’s examination, Combs

testified that the odor was very strong. Combs also testified he asked Redmond

about the odor and Redmond denied having smoked cannabis in the vehicle.

¶9 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.

¶ 10 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.

1

Redmond has not contested the validity of the stop in any court, and thus, we do not analyze

the validity of the stop in this case.

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¶ 11 Combs testified that he searched the car because there was an odor of burnt

cannabis, Redmond gave evasive answers, Interstate 80 was “a known drug

corridor,” and Redmond admitted he was driving from Des Moines to Chicago,

where both cities are “hub[s] of criminal activity.” Combs’s search uncovered

approximately one gram of cannabis in the center console in a plastic bag.

¶ 12 In an order dated November 10, 2021, the circuit court granted the motion to

suppress, finding Combs lacked probable cause for the warrantless search. The

court first noted what was not present during the stop; namely, Combs did not

observe any signs of impairment or signs indicative of recent cannabis use. Combs

also did not observe any paraphernalia, loose or unpackaged cannabis, or the odor

of raw cannabis coming from the vehicle. The circuit court found that “nothing”

about Redmond’s “living arrangement, travel plans, or travel route add[ed] to the

likelihood that [he] was engaged in criminal conduct.” As to the odor of burnt

cannabis, the circuit court found that, because the smell of burnt cannabis could

persist even if possessed and used wholly within the bounds of Illinois law, the

smell of burnt cannabis standing alone could not constitute probable cause for a

warrantless vehicle search.

¶ 13 On November 10, 2021, the State filed an interlocutory appeal pursuant to

Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2017) with a certificate stating

that the order substantially impaired its prosecution of the case. See People v. Truitt,

175 Ill. 2d 148, 151-52 (1997).

¶ 14 B. Appellate Court

¶ 15 The appellate court held that “ ‘the smell of the burnt cannabis, without any

corroborating factors, is not enough to establish probable cause to search the

vehicle.’ ” 2022 IL App (3d) 210524, ¶ 21 (quoting People v. Stribling, 2022 IL

App (3d) 210098, ¶ 29). The appellate court, like the trial court, pointed out the

absence of evidence supporting the search. Id. ¶ 22 (“Redmond did not delay

pulling over or make any furtive movements, he rolled down the window when

Combs came to the passenger side of the vehicle, and Combs did not observe any

cannabis or related drug paraphernalia in the vehicle, smoke in the vehicle, or signs

of impairment in Redmond.”).

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¶ 16 The court also found a lack of evidence supporting Combs’s testimony that

Interstate 80 was a known drug corridor and that Des Moines and Chicago were

hubs of criminal activity. Id. ¶¶ 23-24. Both facts were unrelated to and

unsupportive of Combs’s suspicion that Redmond had smoked cannabis in the

vehicle. Id. The appellate court affirmed the circuit court’s judgment suppressing

the cannabis seized in the warrantless search of Redmond’s car. Id. ¶ 26.

¶ 17 This court granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a)

(eff. Oct. 1, 2021).

¶ 18 II. ANALYSIS

¶ 19 The sole issue before this court is whether Officer Combs had probable cause

to search Redmond’s vehicle after Combs smelled the odor of burnt cannabis

coming from the vehicle. The State argued in its brief that “where the officer

detected the strong odor of burnt cannabis—a reasonable officer was justified in

suspecting either a violation of the odor-proof transportation requirement or,

perhaps more likely, the prohibition on the use of cannabis within a vehicle.”

Redmond responds that, after the legislature legalized the use and possession of

cannabis, the odor of burnt cannabis emanating from a vehicle alone “lacks a clear

and direct enough connection to illegal activity to make it ‘probable’ that a crime

has recently been committed or is being committed.”

¶ 20 A. Standard of Review

¶ 21 We review the trial court’s ruling on the motion to suppress under the two-part

standard enunciated by the United States Supreme Court in Ornelas v. United

States, 517 U.S. 690, 696-97 (1996). People v. Hill, 2020 IL 124595, ¶ 14. “Factual

findings by the trial court will be reversed only if they are against the manifest

weight of the evidence, but the ultimate legal determination as to whether

suppression is warranted is reviewed de novo.” People v. Salamon, 2022 IL

125722, ¶ 75.

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¶ 22 B. Constitutional Prohibitions Against

Unreasonable Searches

¶ 23 The fourth amendment to the United States Constitution provides: “The right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause ***.” U.S. Const., amend. IV. The Illinois

Constitution similarly provides: “The people shall have the right to be secure in

their persons, houses, papers and other possessions against unreasonable searches

***. No warrant shall issue without probable cause ***.” Ill. Const. 1970, art. I,

§ 6. “[S]earches conducted outside the judicial process, without prior approval by

judge or magistrate, are per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357 (1967).

¶ 24 One well-established exception is for searches of automobiles. See Carroll v.

United States, 267 U.S. 132, 156 (1925); People v. Webb, 2023 IL 128957, ¶ 24

(“There are recognized exceptions to the general rule, however, including an

exception for searches of vehicles.”). The automobile exception is justified because

of an automobile’s “transient nature,” which “often renders it impracticable to

secure a warrant before the automobile escapes the jurisdiction in which the warrant

must be sought.” Hill, 2020 IL 124595, ¶ 21. “Under the automobile exception, law

enforcement officers may undertake a warrantless search of a vehicle if there is

probable cause to believe that the automobile contains evidence of criminal activity

that the officers are entitled to seize.” People v. James, 163 Ill. 2d 302, 312 (1994).

¶ 25 C. Probable Cause to Search

¶ 26 Probable cause exists where the evidence known to the officer raises a “fair

probability that contraband or evidence of a crime will be found in a particular

place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); see id. at 243 n.13 (“[P]robable

cause requires only a probability or substantial chance of criminal activity, not an

actual showing of such activity.”). “Whether the necessary probability exists is

governed by commonsense considerations that are factual and practical, rather than

by technical rules.” People v. Manzo, 2018 IL 122761, ¶ 30. “[P]robable cause does

not require an officer to rule out any innocent explanations for suspicious facts.”

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Hill, 2020 IL 124595, ¶ 24. “Instead, it requires only that the facts available to the

officer—including the plausibility of an innocent explanation—would warrant a

reasonable man to believe there is a reasonable probability” that a search of the

automobile will uncover contraband or evidence of criminal activity. Id. “A court

must examine the events leading up to the search or seizure, and then decide

whether these historical facts, viewed from the standpoint of an objectively

reasonable law enforcement officer, amount to probable cause.” People v. Jones,

215 Ill. 2d 261, 274 (2005).

¶ 27 D. Evolution of Cannabis Law

¶ 28 Because cannabis law has changed drastically over the last decade, we briefly

address the evolution of statutes dealing with cannabis and the caselaw analyzing

whether probable cause exists based on an officer’s detection of the odor of

cannabis coming from a vehicle. And because probable cause deals with the

probability that a search will produce contraband or evidence of criminal activity,

we address the state of cannabis laws at the time of the stop in September 2020.

¶ 29 1. Pre-2013: All Cannabis Is Contraband

¶ 30 Prior to 1971, marijuana was classified as a narcotic and punished accordingly.

See People v. McCabe, 49 Ill. 2d 338, 350 (1971) (per curiam) (observing that the

legislature had recently removed marijuana from the purview of the Narcotic Drug

Act (Ill. Rev. Stat. 1969, ch. 38, ¶ 22-1 et seq.)). In 1971, the legislature enacted

the Control Act. See Pub. Act 77-758, § 1 (adding Ill. Rev. Stat. 1971, ch. 56½,

§ 701 et seq.). 2 The Control Act provided: “It is unlawful for any person knowingly

to possess cannabis.” Id. § 704. The Control Act set penalties between a Class C

misdemeanor for the possession of not more than 2.5 grams of any substance

2

Among the legislative findings were that cannabis was “widely used and pervasive among the

citizens of Illinois” and that previous laws on cannabis had “unnecessarily and unrealistically drawn

a large segment of our population within the criminal justice system.” Ill. Rev. Stat. 1971, ch. 56½,

§ 701. The General Assembly declared its intent to “establish a reasonable penalty system which is

responsive to the current state of knowledge concerning cannabis and which directs the greatest

efforts of law enforcement agencies toward the commercial traffickers and large-scale purveyors of

cannabis.” Id.

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containing cannabis and a Class 3 felony for the possession of more than 500 grams

of any substance containing cannabis. Id. § 704(a)-(e).

¶ 31 In People v. Stout, 106 Ill. 2d 77, 88 (1985), this court held that “additional

corroboration” was not required to establish probable cause for a warrantless search

“where a trained and experienced police officer detects the odor of cannabis

emanating from a defendant’s vehicle.” The defendant had been pulled over for

making an illegal turn. Id. at 81. As the officer approached the vehicle, he smelled

the odor of “burning cannabis from inside the defendant’s car.” Id. at 87. We

explained that a “police officer’s detection of controlled substances by their smell

has been held to be a permissible method of establishing probable cause.” Id. This

court added that the officer, “when confronted with circumstances which tended to

indicate that criminal activity was taking place,” had a duty “to investigate in order

to determine whether such criminal activity in fact existed.” Id.

¶ 32 2. Legalization (Medical) and

Decriminalization Phase

¶ 33 In 2013, the General Assembly promulgated the Compassionate Use of Medical

Cannabis Pilot Program Act (Medical Act). See Pub. Act 98-122, § 1 (eff. Jan. 1,

2014) (adding 410 ILCS 130/1 et seq.). The Medical Act made it lawful for certain

individuals with debilitating medical conditions to possess and use cannabis. 410

ILCS 130/10(t), 25(a) (West 2014). Nevertheless, the Vehicle Code prohibited the

use of cannabis in a motor vehicle (625 ILCS 5/11-502.1(a) (West 2014)), and if it

was possessed in a motor vehicle, the cannabis was required to be stored in a

“sealed, tamper-evident medical cannabis container” (id. § 11-502.1(b), (c)).

¶ 34 In 2016, the Control Act was amended, and the possession of not more than 10

grams of any substance containing cannabis was made a civil law violation with a

minimum fine of $100 and a maximum fine of $200. 720 ILCS 550/4(a) (West

2018); see Pub. Act 99-697, § 40 (eff. July 29, 2016). Possession of more than 10

grams of a substance containing cannabis remained criminal, with penalties ranging

from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(b)-(g) (West

2018).

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¶ 35 During the evolution of Illinois’s cannabis laws—the legalization of medical

cannabis and the decriminalization of the possession of small amounts of

cannabis—this court decided Hill, 2020 IL 124595. In Hill, this court decided the

propriety of a search that occurred on May 29, 2017. Id. ¶ 5. The defendant was

pulled over based on the officer’s belief that the passenger was a fugitive. Id. The

defendant drove a few blocks before pulling over, which the officer testified was

indicative of someone in the car concealing or destroying contraband or producing

a weapon. Id. The officer approached the passenger side and immediately smelled

the strong odor of raw cannabis. Id. The passenger admitted that he was a cannabis

user and that he had smoked cannabis earlier that day. Id. ¶ 10. The officer also

observed in plain view a “bud” in the back seat of the car. Id.

¶ 36 This court first declined to address the “narrow legal issue” of whether Stout

remained good law because, unlike the officer in Stout, the officer relied on more

than the odor of raw cannabis. Id. ¶¶ 16, 18. In a footnote we stated: “Although we

do not reach whether the odor of cannabis, alone, is sufficient to establish probable

cause, the smell and presence of cannabis undoubtedly remains a factor in a

probable cause determination.” Id. ¶ 18 n.2.

¶ 37 This court then analyzed the changes in Illinois’s cannabis law. Id. ¶¶ 27-31.

We rejected the defendant’s argument that decriminalization of the possession of

small amounts of cannabis affected the probable cause analysis because the

possession of cannabis remained unlawful. See id. ¶ 31 (“the decriminalization of

possessing small amounts of cannabis did not alter the status of cannabis as

contraband”). Regarding the Medical Act, we noted that, “[w]hile the mere

presence of cannabis for medical users may no longer be immediately attributable

to criminal activity or possession of contraband, such users must possess and use

cannabis in accordance with the [Medical] Act.” Id. ¶ 34 (citing the Vehicle Code’s

requirement that a medical user must possess cannabis within a motor vehicle in a

“sealed, tamper-evident medical cannabis container” (625 ILCS 5/11-502.1(b), (c)

(West 2016))).

¶ 38 With the legal framework established, this court found that the officers had

probable cause to search the defendant’s vehicle based on the totality of the

circumstances, including (1) the defendant’s delay in pulling over and the officer’s

testimony that a delay often means the car’s occupants are hiding contraband or

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retrieving a weapon, (2) the passenger stating that he smokes cannabis and had done

so that day, (3) the officer’s observation of a loose “bud” in the back seat, and

(4) the strong odor of raw cannabis, which, “together,” indicated that cannabis was

in the car and likely not properly contained. Id. ¶ 35. We then analyzed the case

under standards we have used related to an officer’s smell of alcohol because, like

cannabis, “possession of alcohol is lawful under some circumstances but remains

unlawful under other circumstances.” Id. ¶ 36. We concluded that there was

probable cause because, as the alcohol precedent instructed, there was some indicia

of criminality in addition to the smell of cannabis. Id. ¶¶ 36-37.

¶ 39 3. Public Act 101-27: Cannabis Act Amended and

Regulation Act Enacted

¶ 40 On June 25, 2019, the General Assembly promulgated Public Act 101-27 (eff.

June 25, 2019), which, along with Public Act 101-593, § 35 (eff. Dec. 4, 2019),

amended the Control Act to provide: “Except as otherwise provided in the Cannabis

Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person

knowingly to possess cannabis.” Id. (amending 720 ILCS 550/4). The Control Act

maintained the same penalty structure regarding the possession of cannabis: the

possession of not more than 10 grams of a substance containing cannabis remained

a civil law violation, and the possession of more than 10 grams was penalized

ranging from a Class B misdemeanor to a Class 1 felony. See 720 ILCS 550/4(a)-

(g) (West 2020).

¶ 41 In Public Act 101-27 (eff. June 25, 2019), the General Assembly also enacted

the Cannabis Regulation and Tax Act (Regulation Act) (410 ILCS 705/1-1 et seq.

(West 2020)), the most comprehensive and detailed legislation regarding the use

and possession of cannabis in the State of Illinois. In what could be described as

the legalization clause, section 10-5 of the Regulation Act provides:

“Beginning January 1, 2020, notwithstanding any other provision of law, and

except as otherwise provided in this Act, the following acts are not a violation

of this Act and shall not be a criminal or civil offense under State law or the

ordinances of any unit of local government of this State or be a basis for seizure

or forfeiture of assets under State law for persons other than natural individuals

under 21 years of age:

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(1) possession, consumption, use, purchase, obtaining, or transporting

cannabis paraphernalia or an amount of cannabis for personal use that does

not exceed the possession limit under Section 10-10 or otherwise in

accordance with the requirements of this Act[.]” Id. § 10-5(a)(1).

Section 10-10 of the Regulation Act defines the possession limit “for a person who

is 21 years of age or older and a resident of this State” as “(1) 30 grams of cannabis

flower; (2) no more than 500 milligrams of THC contained in cannabis-infused

product; [and] (3) 5 grams of cannabis concentrate.” Id. § 10-10(a)(1)-(3). 3

Pursuant to the Regulation Act, it is generally legal for an Illinois resident who is

over the age of 21 to use cannabis and to possess up to 30 grams of cannabis. Thus,

the Regulation Act provides an exception to the Control Act’s prohibition against

the possession of cannabis. Compare 720 ILCS 550/4 (West 2020), with 410 ILCS

705/10-5(a)(1), 10-10(a)(1)-(3) (West 2020).

¶ 42 Section 10-35 of the Regulation Act, titled “Limitations and penalties,”

provides that the Regulation Act

“does not permit any person to engage in, and does not prevent the imposition

of any civil, criminal, or other penalties for ***

***

(2) possessing cannabis ***

***

(D) in a vehicle not open to the public unless the cannabis is in a

reasonably secured, sealed container and reasonably inaccessible while

the vehicle is moving[.]” 410 ILCS 705/10-35(a)(2)(D) (West 2020).

3

The legislative findings for the Regulation Act include the following:

“In the interest of allowing law enforcement to focus on violent and property crimes, generating

revenue for education, substance abuse prevention and treatment, freeing public resources to

invest in communities and other public purposes, and individual freedom, the General

Assembly finds and declares that the use of cannabis should be legal for persons 21 years of

age or older and should be taxed in a manner similar to alcohol.” 410 ILCS 705/1-5(a) (West

2020).

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Section 10-35 also provides that the Regulation Act “does not permit any person to

engage in, and does not prevent the imposition of any civil, criminal, or other

penalties for *** (3) using cannabis *** (D) in any motor vehicle *** [or] (F) in

any public place.” Id. § 10-35(a)(3)(D), (F). Thus, if an individual engages in the

conduct described in section 10-35, the section 10-5 immunity provision is rendered

inapplicable. 4

¶ 43 The Vehicle Code, amended at the same time and in the same public act that

created the Regulation Act, prohibits the use of cannabis in a vehicle upon a

highway and restrains how an individual may possess cannabis within a vehicle.

Pub. Act 101-27 (eff. June 25, 2019) (adding 625 ILCS 5/11-502.15). The Vehicle

Code provides: “No driver may use cannabis within the passenger area of any motor

vehicle upon a highway in this State.” 625 ILCS 5/11-502.15(a) (West 2020). The

Code also provides that “[n]o driver may possess cannabis within any area of any

motor vehicle upon a highway in this State except in a sealed, odor-proof, child-

resistant cannabis container.” Id. § 11-502.15(b). 5

¶ 44 E. The Odor of Burnt Cannabis Alone

No Longer Establishes Probable Cause

¶ 45 After January 1, 2020, when the use and possession of cannabis was legalized

in many instances, our appellate court has reached conflicting results in cases

concerning the effect of legalization on probable cause for automobile searches.

The Second District has held that the odor of burnt cannabis, standing alone, still

justifies a warrantless search of an automobile. See People v. Harris, 2023 IL App

(2d) 210697, ¶ 31 (holding that an officer that smells the strong odor of burnt

cannabis coming from a vehicle has “probable cause to believe that cannabis is

4

The use and possession of up to “30 grams of cannabis flower; *** no more than 500

milligrams of THC contained in cannabis-infused product; [and] *** 5 grams of cannabis

concentrate” is not a criminal or civil offense under state law (410 ILCS 705/10-5(a)(1), 10-10(a)(1)-

(3) (West 2020)), but section 10-35 of the Regulation Act removes its protection for the use of

cannabis in a motor vehicle and the possession of cannabis in a motor vehicle “unless the cannabis

is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving”

(id. § 10-35(a)(2)(D), (3)(D)).

5

Redmond does not contest the validity of the odor-proof container requirement. In People v.

Molina, 2024 IL 129237, a case dealing with a police officer’s detection of the odor of raw cannabis

coming from a vehicle, we address the validity of the odor-proof container requirement.

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being transported, possessed, or used in a manner contrary to law”). The Third

District has held that “the smell of the burnt cannabis, without any corroborating

factors, is not enough to establish probable cause to search [a] vehicle.” Stribling,

2022 IL App (3d) 210098, ¶ 28. We now resolve the conflict between the districts

and consider whether the legalization of cannabis affects the legality of warrantless

searches based on the odor of burnt cannabis.

¶ 46 At oral argument, the State conceded 6 that the smell of burnt cannabis, standing

alone, is insufficient to give an officer probable cause to search a vehicle. 7 While

we are not bound by the State’s concession (In re Brandon P., 2014 IL 116653,

¶ 44), we agree with the concession in this case. The laws on cannabis have changed

in such a drastic way as to render the smell of burnt cannabis, standing alone,

insufficient to provide probable cause for a police officer to search a vehicle without

a warrant. See 720 ILCS 550/4 (West 2020); 410 ILCS 705/10-5(a)(1), 10-10(a)

(West 2020); 625 ILCS 5/11-502.15 (West 2020).

¶ 47 Unlike the legal landscape considered in Hill, Illinois cannabis law has evolved,

and use and possession have not only been decriminalized in numerous situations,

but they have been legalized in numerous situations. See 410 ILCS 705/10-5(a)(1),

10-10(a) (West 2020). There are now a myriad of situations where cannabis can be

used and possessed (id.), and the smell resulting from that legal use and possession

is not indicative of the commission of a criminal offense. See 720 ILCS 5/2-12

(West 2020) (“ ‘Offense’ means a violation of any penal statute of this State.”).

Therefore, given the fact that under Illinois law the use and possession of cannabis

is legal in some situations and illegal in others, the odor of burnt cannabis in a motor

6

The following two colloquies occurred during oral argument:

CHIEF JUSTICE THEIS: “So you are conceding that the case *** where there is burnt

marijuana, you are conceding that that is the case in which the analysis should be totality of the

circumstances?”

STATE: “Yes. *** The smoked cannabis, yes. *** It is not directly before this court

because there were additional circumstances beyond the smell of cannabis alone.”

***

JUSTICE HOLDER WHITE: “Okay, so burnt cannabis, you’re stopped and the officer

smells burnt cannabis. *** Your argument is that that alone is insufficient to search the

vehicle?”

STATE: “I think that’s correct though it’s not necessarily before this court *** because

there were additional circumstances in this case which I believe led to the probable cause.”

7

The State argued in its brief that “the odor of cannabis—whether in raw or burnt form—

continues to provide police with probable cause to search the vehicle.”

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vehicle, standing alone, is not a sufficiently inculpatory fact that reliably points to

who used the cannabis, when the cannabis was used, or where the cannabis was

used.

¶ 48 A comparison to the odor of alcohol caselaw supports the conclusion that

probable cause does not exist based on the smell of burnt cannabis alone. See 410

ILCS 705/1-5(b) (West 2020) (finding that “cannabis should be regulated in a

manner similar to alcohol”). “Similar to cannabis, possession of alcohol is lawful

under some circumstances but remains unlawful under other circumstances.” Hill,

2020 IL 124595, ¶ 36; see, e.g., 625 ILCS 5/11-502(a) (West 2020) (providing that

“no driver may transport, carry, possess or have any alcoholic liquor within the

passenger area of any motor vehicle upon a highway in this State except in the

original container and with the seal unbroken”); 625 ILCS 5/11-501(a) (West 2020)

(“A person shall not drive or be in actual physical control of any vehicle within this

State while: (1) the alcohol concentration in the person’s blood, other bodily

substance, or breath is 0.08 or more ***.”). Our cases, and those of other

jurisdictions, support the proposition that more is needed to establish probable

cause than the odor of alcohol.

¶ 49 For example, in People v. Smith, 95 Ill. 2d 412, 415 (1983), the officer stopped

the driver of a truck based on an expired sticker. The officer smelled alcohol on the

defendant’s breath and observed an open bottle in a brown paper bag. Id. at 416.

“The bottle’s neck was exposed and the officer could observe that it contained

liquid.” Id. “Judging from the shape of the bottle and color of the label on the neck,

the officer was nearly certain that it was a bottle of Miller’s beer.” Id. We held that

on this information “alone it was reasonable for the officer to enter the passenger

compartment of the defendant’s vehicle in order to inspect the bottle and search for

alcohol.” Id. at 420. Similarly, the appellate court held that probable caused existed

in People v. Corrigan, 45 Ill. App. 3d 502 (1977), where the officers (1) observed

a passenger’s hurried and suspicious movements, (2) observed liquid dripping from

the glove compartment, and (3) smelled the odor of alcohol. The court held that the

“odor of alcohol associated with the dripping glove compartment would warrant

the belief of a reasonable man that further investigation was appropriate.” Id. at

505.

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¶ 50 Courts from other states agree. In State v. Stevenson, 321 P.3d 754, 763 (Kan.

2014), the Supreme Court of Kansas held that probable cause to search a vehicle

did not exist based on the strong odor of alcohol coming from the vehicle. There,

officers stopped the defendant for a turn signal violation. Id. at 756. When the

officers approached, they smelled the very strong odor of alcohol. Id. The defendant

exited the vehicle, passed field sobriety tests, and then was allowed to reenter the

vehicle. Id. The officers then searched the vehicle. Id. at 757.

¶ 51 The court conducted a detailed analysis of the facts known to the officers in

relation to the crime suspected, transporting an open container of alcohol, to

determine if there was a “fair probability” that a search would uncover evidence of

the crime. Id. at 762-63. The court noted several exculpatory facts that the officers

discovered during their investigation, including that the defendant passed a field

sobriety test and that an initial observation into the vehicle uncovered no open

containers. Id. at 763. The court stated:

“the totality of the circumstances in this case only establishes that the officers’

observation of a very strong odor of alcohol emanating from within the vehicle,

which they suspected to be the result of spilled alcohol, provided them with

reasonable suspicion to extend the traffic infraction detention to further

investigate whether [the defendant] was transporting an open container of

alcohol.” Id.

The court concluded that the “officers’ failure to acquire additional inculpatory

facts relating to the crime being investigated before commencing their search of the

vehicle rendered the search unreasonable and unlawful.” Id.; see State v. Burbach,

706 N.W.2d 484, 489 (Minn. 2005) (odor of alcohol did not justify search during a

traffic stop).

¶ 52 In State v. Torgerson, 995 N.W.2d 164 (Minn. 2023), the Minnesota Supreme

Court extended the reasoning of Burbach to a case involving the odor of cannabis

in a vehicle. The Torgerson court said:

“[W]e hold that the odor of marijuana may be considered as part of the probable

cause calculus. Specifically, the odor of marijuana is one of the circumstances

in the totality of circumstances analysis that should be considered in

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determining if there is a ‘fair probability’ that contraband or evidence of a crime

will be found in the location searched. [Citations.]

***

It is undisputed that the only indication that evidence of a crime or

contraband may be found in Torgerson’s vehicle was the odor of marijuana

emanating from the vehicle. *** There was nothing in Torgerson’s actions to

give suspicion that he was under the influence while driving, no drug

paraphernalia or other evidence to indicate that the marijuana was being used

in a manner, or was of such a quantity, so as to be criminally illegal, and no

evidence showing that any use was not for legal medicinal purposes. In the

absence of any other evidence as part of the totality of the circumstances

analysis, the evidence of the medium-strength odor of marijuana, on its own, is

insufficient to establish a fair probability that the search would yield evidence

of criminally illegal drug-related contraband or conduct.” Id. at 174-75.

¶ 53 The Minnesota Supreme Court’s ruling comports with several recent decisions

from other states that have reduced or eliminated criminal penalties for cannabis

possession and use. See Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021) (“the

odor of marijuana alone does not amount to probable cause to conduct a warrantless

search of a vehicle but, rather, may be considered as a factor in examining the

totality of the circumstances”); Commonwealth v. Craan, 13 N.E.3d 569, 574

(Mass. 2014) (“Since the enactment of the 2008 initiative decriminalizing the

possession of one ounce or less of marijuana, we have held that the odor of burnt

marijuana alone cannot support probable cause to search a vehicle without a

warrant.”).

¶ 54 Therefore, based 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

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or after January 1, 2020.

¶ 55 F. The Totality of the Circumstances Did

Not Provide Probable Cause to Search

¶ 56 We have summarized the state of the law regarding cannabis in September

2020. Now we will discuss in more detail the legal landscape in relation to the

search in this case. We pause here to discuss, in slightly more detail, what crimes

Combs was investigating.

¶ 57 First, the State argues that Redmond was likely violating the Vehicle Code by

using cannabis in a motor vehicle. 625 ILCS 5/11-502.15 (West 2020). Section 11-

502.15 of the Vehicle Code provides: “No driver may use cannabis within the

passenger area of any motor vehicle upon a highway in this State.” Id. § 502.15(a).

Second, Redmond may have violated the Vehicle Code by possessing cannabis in

a motor vehicle in violation of the Vehicle Code. See id. § 11-502.15(b) (“No driver

may possess cannabis within any area of any motor vehicle upon a highway in this

State except in a sealed, odor-proof, child-resistant cannabis container.”). What is

notable about the Vehicle Code provisions is that they do not prohibit the

possession or use of cannabis within a motor vehicle. See id. § 502.15. The

gravamen of the offenses is that the conduct occurs “upon a highway in this State.” 8

Thus, it would not have been a violation of the Vehicle Code for Redmond to have

used cannabis in a motor vehicle before he left Des Moines or in any location within

Illinois not considered a “highway.” 9

¶ 58 Finally, the State points to the Regulation Act’s (1) prohibition against the use

of cannabis in a motor vehicle and (2) prohibition against the possession of

cannabis in a motor vehicle “unless the cannabis is in a reasonably secured, sealed

container and reasonably inaccessible while the vehicle is moving.” 410 ILCS

705/10-35(a)(2)(D) (West 2020); id. § 10-35(a)(3)(D). Notably, these are not

8

We note the narrowness of these prohibitions in comparison to the prohibition against driving

while under the influence, which applies if a person “drive[s]” or is in “actual physical control of

any vehicle within this State.” 625 ILCS 5/11-501(a) (West 2020).

9

The Vehicle Code defines “highway” as the “[t]he entire width between the boundary lines of

every way publicly maintained when any part thereof is open to the use of the public for purposes

of vehicular travel or located on public school property.” 625 ILCS 5/1-126 (West 2020).

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offenses themselves. Instead, the Control Act establishes the penalty structure for

the possession of cannabis. See 720 ILCS 550/4(a)-(g) (West 2020). Section 10-5

of the Regulation Act then generally grants immunity from prosecution for the use

and possession of cannabis. Section 10-35 then describes conduct for which section

10-5 does not apply. In other words, if the State can establish that an individual is

engaged in conduct described in section 10-35 (i.e., the individual used cannabis in

the vehicle or possessed cannabis in an unauthorized container), the individual’s

possession of cannabis is not immune from the Control Act’s general prohibition

against the possession of cannabis.

¶ 59 The State contends that the totality of the circumstances, including Combs’s

detection of the strong odor of burnt cannabis, made it reasonable to suspect that

Redmond had smoked cannabis in the car on his way from Des Moines to Chicago.

The State relies on the following facts in addition to the strong smell of burnt

cannabis coming from the vehicle: (1) the stop occurred on Interstate 80, halfway

between Des Moines and Chicago, (2) Combs continued to smell the odor of burnt

cannabis in the vehicle after he removed Redmond, (3) Redmond did not produce

his license and registration, and (4) Redmond did not provide direct answers to

Combs’s questions about where he lived or why he was traveling from Des Moines

to Chicago. The State concludes that these facts established probable cause to

believe that Redmond violated the Vehicle Code and Regulation Act.

¶ 60 The first two facts are not inculpatory facts that provide probable cause for a

search. Notably, the State has abandoned its argument related to, and the trial court

discounted as “unpersuasive,” Combs’s testimony that Interstate 80 is a “drug

corridor.” That Redmond had likely been in the car for a lengthy period and that

the smell of cannabis remained in the car when Redmond was removed support a

reasonable suspicion that he had smoked cannabis in the car at some point.

However, Combs, aside from the smell, observed no signs of impairment and no

drug paraphernalia or evidence of cannabis use in the car. See Stevenson, 321 P.3d

at 763 (“Country common sense would likewise lead one to believe that an

intoxicated person would be more likely to have an open container in the vehicle

from which he or she had been drinking than a sober person who had passed the

field sobriety tests.”). Combs also did not smell the odor of burnt cannabis on

Redmond, which undercuts the reasonable belief that Redmond had recently

smoked cannabis inside the vehicle while on an Illinois highway.

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¶ 61 We are unpersuaded that the two latter facts provided any support to the

probable cause analysis. First, while it is a violation of the Vehicle Code for a driver

not to have his driver’s license in his immediate possession when operating a motor

vehicle (625 ILCS 5/6-112 (West 2020)), that violation does not add to the probable

cause analysis because it did not make it any more likely that evidence of the

suspected crime would be present. Also, Combs’s search through the Secretary of

State’s database established that Redmond had a valid Illinois license at the time of

the stop. Second, the trial court found, and we agree, that there was a semantic

difference between Combs and Redmond regarding Redmond’s living

arrangements. Redmond explained that he lived in Chicago but was temporarily

staying in Des Moines because of the pandemic. Combs continued to construe that

explanation as Redmond stating that his permanent address had changed to

Des Moines. We also agree with the trial court’s finding that Redmond’s alleged

failure to give “direct answers” on his living arrangements did not make it any more

likely, alone or along with the other evidence, that Redmond’s car contained

contraband or evidence of a crime.

¶ 62 Police are also, in considering the totality of the circumstances, required to

consider facts that tend to defeat or dispel probable cause. See United States v.

Cortez, 449 U.S. 411, 417 (1981) (“But the essence of all that has been written is

that the totality of the circumstances—the whole picture—must be taken into

account.”); Terry v. Ohio, 392 U.S. 1, 28 (1968) (recognizing that facts may be

uncovered that “dispel” an officer’s initial reasonable suspicion). As the appellate

court noted,

“Redmond did not delay pulling over or make any furtive movements, he rolled

down the window when Combs came to the passenger side of the vehicle, and

Combs did not observe any cannabis or related drug paraphernalia in the

vehicle, smoke in the vehicle, or signs of impairment in Redmond.” 2022 IL

App (3d) 210524, ¶ 22.

¶ 63 In short, Officer Combs’s detection of the strong odor of burnt cannabis coming

from the vehicle certainly established reasonable suspicion to investigate further.

Combs reasonably investigated whether Redmond had violated the Vehicle Code

and whether Redmond was driving impaired. When his further investigation did

not yield any inculpatory facts, the quantity of evidence never advanced on the

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continuum from reasonable suspicion to probable cause to search. Therefore, the

search was unreasonable and unlawful, and the circuit court properly granted

Redmond’s motion to suppress the evidence in this case.

¶ 64 Finally, the State argues that this court should reverse the circuit court because

Combs acted in good faith when he searched Redmond’s car. The State did not raise

any issue regarding the good faith exception in the circuit court. The State forfeited

the issue a second time by failing to raise it in the appellate court. See People v.

Sophanavong, 2020 IL 124337, ¶ 21. Therefore, we decline to address the State’s

twice-forfeited good faith argument.

¶ 65 III. CONCLUSION

¶ 66 In sum, since January 1, 2020, the use and possession of cannabis is

presumptively lawful, subject to certain restrictions. See 410 ILCS 705/10-5(a)

(West 2020) (“Beginning January 1, 2020 ***.”). We hold that the odor of burnt

cannabis, alone, is insufficient to provide probable cause for police officers to

perform a warrantless search of a vehicle. We also hold that the totality of the facts

and circumstances known to Officer Combs did not provide probable cause to

search Redmond’s vehicle. Therefore, the circuit court correctly granted the motion

suppressing the evidence confiscated from Redmond. Accordingly, we affirm the

appellate court’s decision affirming the trial court’s order suppressing the evidence

seized in the warrantless search of Redmond’s car.

¶ 67 Judgments affirmed.

¶ 68 JUSTICE HOLDER WHITE took no part in the consideration or decision of

this case.

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