Illinois was the 11th state to legalize recreational marijuana, but they didn’t include a provision within the law to limit warrantless searches over it. The “plain smell law” may sound silly, but most states allow police officers to conduct a vehicle search without a warrant if they claim to smell marijuana.
In states where it’s legal to have marijuana in your possession, leaving the law in place can result in many completely unnecessary traffic stops and searches. Illinois joins New York and many other states that have removed the “plain smell” excuse for warrantless vehicle searches.
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A Common Sense Ruling for Personal Privacy
Judge Daniel P. Dalton issued the ruling last week to settle the issue that had been in dispute since just weeks after the decision to legalize marijuana. Like judges before him in other states like Pennsylvania, Judge Dalton focused on the fact that the odor of marijuana was no longer automatically indicative of a broken law. Since marijuana can be legally transported by car in Illinois, police officers shouldn’t simply be allowed to search the vehicle because of its odor.
Unlike with alcohol, the judge recognized many more innocent reasons why the smell might be noticeable despite the driver’s sobriety and proper containment of the product.
Public Safety Officers Argue They’ll Have a Harder Time Catching Intoxicated Drivers
Of course, there has been pushback from police officers and state troopers in Illinois who are concerned with keeping intoxicated drivers off of the roads. Many of these claims rely on the idea that marijuana odor is only generated by ingesting it, even though plenty of edible or tincture products that can intoxicate a driver won’t produce any smell at all.
Thankfully, this claim didn’t win over the judge, who ruled in favor of drivers who want to maintain their privacy instead. Police officers can still rely on other sobriety testing methods and signs of intoxication like failure to maintain lane. The majority of cases of warrantless searches in Illinois relying on the “plain smell law” argument failed to reveal marijuana, much less active consumption of the product in question.
It’s clear that smell alone isn’t a useful way to make drivers safer but rather just a way to justify unnecessary searches that should require a warrant.
A Long History of Plain Smell Law
Like many other states, Illinois first adopted the “plain smell” excuse for warrantless searches in 1986. However, the law went even further than many other statutes by waiving the need to establish an officer’s capability of detecting marijuana odors from other similar smells.
That meant that any police officer who thought they smelled marijuana, regardless of what the scent actually was, could declare the need for a warrantless search. The law was far-reaching and had negative consequences for thousands of state residents even before marijuana was legal, and there was little argument for keeping it in place post-legalization.
The Case in Question
The case that brought the argument before the state court involved Illinois resident Vincent Molina. He was stopped in December 2020, even though marijuana had been legalized in January of that year. He showed the police officer his medical license that allowed him to carry marijuana legally. However, the cop still executed a warrantless search of the vehicle based on the claim he smelled the odor. As a result, Mr. Molina was charged with a misdemeanor for possession despite having a medical license and recreational use being legal. His concern in bringing the case to a higher court wasn’t about having his record cleared but rather establishing the end of the “plain smell” search procedure for the benefit of other residents of the state.
With over $1 billion in marijuana sales within Illinois, it’s safe to say that thousands of vehicles have smelled like marijuana for completely legal reasons within the last two years already. Now Illinois drivers who obey all the state’s requirements for buying and transporting these products no longer have to worry that a faint whiff of some flower won’t put them at risk for a search of the entire vehicle without a judge’s warrant.
