Chicago Police Department (CPD) officials recently agreed to revise new rules for investigatory stops, protective pat downs, and other searches that also included policy amendments for Illinois’ conflicting, and often confusing, “sufficient probable cause” laws dealing with burnt and raw cannabis odor.

The proposed-rules revisions on searches followed a legal motion, filed by a community coalition led by the American Civil Liberties Union of Illinois ( ACLU-IL), to enforce a previous CPD Consent Decree (a court order that establishes an enforceable plan for sustainable reform) prohibiting police searches based on the odor of cannabis. The motion to enforce the consent decree came on the heels of two conflicting rulings from the Illinois Supreme Court. Dec. 5, 2024, the Illinois Supreme Court ruled in the  People v. Molina case that raw cannabis aroma alone is sufficient probable cause for a warrantless search of a motor vehicle “based on the stringent ‘odor-proof’ container requirement in the Vehicle Code.” Three months earlier, though, the Illinois Supreme Court had ruled in People v. Redmond that “burnt” cannabis odor alone was not sufficient probable cause for a warrantless search of a vehicle.

The updated policy revisions on searches covered definitions, types of police encounters, and types of searches. Important cannabis-related highlights include:

1. People (i.e., pedestrians, bicyclists) cannot be stopped or searched based on the odor of cannabis, raw or burnt.
2. Drivers or another occupant of the vehicle cannot be searched (i.e., an officer patting down clothing, feeling underneath clothing, or placing hands into pockets, purses, backpacks, etc.) based on the odor of cannabis, raw or burnt.
3. Vehicles cannot be stopped based on the odor of raw or burnt cannabis.
4. Vehicles cannot be searched based on the odor of burnt cannabis (per People v. Redmond).
5. Vehicles can be searched based on the odor of raw cannabis (per People v. Molina) but in limited circumstances. For instance, if an CPD officer lawfully stops a vehicle to investigate a different alleged crime (unrelated to cannabis odor) and then smells raw cannabis, the officer could search the vehicle for improperly packaged raw cannabis. A traffic stop for minor traffic violations, such as a broken taillight or missing registration sticker, does not provide grounds for extending the stop to conduct a vehicle search based on the odor of raw cannabis alone.

Of course, the exception would be if the driver freely gives consent for the officer to search the vehicle. ACLU-IL also has suggested a change to CPD’s policy that would prohibit officers from asking for consent to search cars based on the odor of raw cannabis. ACLU-IL advocates changing the law at the state level by removing the requirement that cannabis in vehicles be packaged in an “odor proof container.”  House Bill 0042, sponsored by Sen. Rachel Ventura, would be the strongest path to remove the odor-proof language. HB0042, which is currently stuck in the Rules Committee, provides that “If a motor vehicle is driven or occupied by an individual 21 years of age or over, a law enforcement officer may not stop or detain the motor vehicle or its driver nor inspect or search the motor vehicle, the contents of the motor vehicle, or the operator or passenger of the motor vehicle solely based on the odor of burnt or raw cannabis.” HB0042 can be revisited during the veto session in the fall.

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