Members of the Illinois House of Representatives are considering a bill that would ban police searches of vehicles based solely on the odor of cannabis. The measure, Senate Bill 125, has been assigned to two House legislative committees after gaining the approval of the Illinois Senate in a 33-20 vote late last month.

Democratic Senator Rachel Ventura, the lead sponsor of the legislation, said that SB 125 will help people who use cannabis legally avoid searches by law enforcement simply because police perceive the odor of marijuana.

“People—especially people of color—are unnecessarily pulled over far too often,” Ventura said about the legislation in a statement. “The odor of cannabis alone shouldn’t be one of those reasons (for their car to be searched). Cannabis is legal in Illinois and it’s a pungent scent that can stick to clothes for extended periods of time.”

If passed by the House and signed into law by Democratic Governor J.B. Pritzker, Senate Bill 125 would amend the Illinois Vehicle Code to state that “the odor of burnt or raw cannabis in a motor vehicle by itself shall not constitute probable cause for the search of the motor vehicle, vehicle operator, or passengers in the vehicle,” provided that the vehicle is operated by an individual at least 21 years old. 

At a press conference on April 11, Democratic Representative Jehan Gordon-Booth said that Senate Bill 125 is needed to fully implement Illinois’ recreational marijuana legalization bill, which was passed by state lawmakers and signed by Pritzker in 2019. Under the legislation, adults 21 and older are permitted to possess up to 30 grams (just over one ounce) of cannabis and up to five mature cannabis plants. Non-residents of Illinois at least 21 are permitted to possess up to 15 grams.

“It was incredibly important as we were looking to legalize this product that has clearly demonized so many communities,” said Jehan Gordon-Booth.

Weed In Cars Must Be Inaccessible

Senate Bill 125 also requires that cannabis possessed by drivers or passengers in motor vehicles driven on state roadways be kept in a sealed or resealable, child-resistant container in a secure location not accessible.

An amendment to the original bill limits the protection from vehicle searches based on the odor of marijuana to autos operated by adults 21 and over. When the change was made to allow searches of vehicles operated by younger drivers, the Illinois chapter of the American Civil Liberties Union (ACLU) dropped its support of the bill and instead adopted a neutral stance on the legislation.

“We do have concerns that the amendment to the bill creates a workaround, or a loophole, that could have the effect of incentivizing police to target youth for unnecessary traffic stops or vehicle searches,” Atticus Ballesteros, an attorney with the ACLU of Illinois, told the Rockford Register Star.

Ballesteros added that the ACLU of Illinois originally supported the bill because there are numerous reasons a vehicle may smell of cannabis.

“And to us, that applies irrespective of age,” Ballesteros said.

Bill Opposed By Law Enforcement

Law enforcement officials including Illinois Sheriff’s Association executive director Jim Kaitschuk oppose Senate Bill 215 and are calling on lawmakers in the House to reject the measure barring vehicle searches based solely on the odor of weed.

“You can’t have endless marijuana in a vehicle,” Kaitschuk told The Center Square. “It’s only legal to a certain amount. Are we also going to inhibit the ability to intervene when the smell of burnt cannabis may be coming from the vehicle, when the motorists may actually be impaired?”

Kaitschuk added that he is concerned that if passed, the legislation could make it more difficult for law enforcement officers to address the illicit market for cannabis and other drugs.

“I think this bill will have the ability to impact illicit markets in terms of people being able to carry more of the drug than they should,” he said. “Plus, folks may traffic marijuana cannabis to mask other drugs that may illegally be in the vehicle.”

Kaitschuk added that he thinks the bill is a solution to a problem that does not exist.

“We’re not just stopping people because we smell cannabis,” he added. “That’s not a probable cause to stop a car. There has to be some other action or activity that occurred in terms of violation of the Vehicle Code that got us there.”

Senate Bill 125 was passed by the Illinois Senate on March 30 and is now pending in the state House of Representatives, where it has been assigned to the Rules Committee and the Executive Committee. A hearing on the legislation has been scheduled by the Executive Committee to be held at the state capitol in Springfield on April 19.

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The Maryland House of Delegates passed a bill on April 10 that bars police from using the odor of cannabis as the basis for the search of a person or automobile. The measure, House Bill 1071, also lowers the civil fine for consuming cannabis in public to $50. 

The bill was approved by the Maryland House by a vote of 101-36 in the closing minutes of the legislative session Monday night after passing in the state Senate with amendments earlier in the day. The legislation now heads to the desk of Democratic Gov. Wes Moore for consideration.

Bill Bans Searches Based on Odor of Weed

Under House Bill 1071, law enforcement officers would be prohibited from using the odor of raw or burnt cannabis as probable cause to search a person or vehicle. Supporters of the legislation maintain that the bill is required to fulfill the intent of Question 4, a ballot referendum to legalize recreational marijuana that passed with nearly two-thirds of the vote in the midterm elections last year. House Bill 1071 also bans searches based on possession of a legal amount of marijuana or the presence of cash in the proximity of cannabis without additional evidence showing an intent to distribute marijuana.

Question 4, which takes effect on July 1, legalizes possession of up to 12 grams of cannabis for personal use. Possession of between 12 and 20 grams will be a civil offense, punishable by a fine of up to $250. Possession of cannabis in quantities greater than 20 grams will be a misdemeanor carrying penalties including up to six months in jail and a fine of up to $1,000.

Because possession of cannabis will still be illegal in amounts greater than 12 grams, legalization advocates say House Bill 1071 is necessary to protect the rights of legal cannabis users. The legislation follows a court decision from the Maryland Supreme Court last year that upheld police authority to briefly detain and search individuals based on the odor of cannabis, despite the state’s legalization of medical marijuana in 2013. Assistant Maryland Public Defender Michele Hall, who unsuccessfully argued the Supreme Court case, told the House Judiciary Committee last month that police will continue to conduct searches based solely on the perceived odor of cannabis.

“Legalization alone did not fix this problem,” Hall told the House Judiciary Committee last month, according to a report from the Maryland Daily Record.

“As long as odor supports Fourth Amendment intrusion, Marylanders legally engaging in the cannabis market are at risk,” added Hall. “Alleging odor of cannabis alone is nothing more than a blank check for police to intrude upon a person’s right to privacy in the hopes of finding something criminal, and the Fourth Amendment requires more.”

The legislation to ban police from using the odor of marijuana as probable cause for a search is also supported by the Maryland chapter of the American Civil Liberties Union.

“Marijuana odor stops and searches not only pose serious risk to people’s Fourth Amendment rights, they enable racial profiling and dangerous and unnecessary police interactions,” Yanet Amanuel, the chapter’s public policy director, told the Judiciary Committee in March.

“This is why it is critical that the legislature must step up and ensure that the law and police practices are consistent with the reason you all said you support legalization of marijuana and, most importantly, the law reflects the will of the people,” Amanuel added. “Marylanders should not fear police interactions because of a lingering odor of a now legal substance.”

Meg Nash, a partner at the cannabis and psychedelics law firm Vicente LLP, said that legislation such as House Bill 1071 is needed to ensure that the legalization of cannabis is enforced equally.

“It’s encouraging to see Maryland tackling the harmful impacts of the war on drugs, not only through adult use legalization, but by revisiting sections of their criminal code,” Nash wrote in an email to High Times on Wednesday. “These types of laws are necessary to protect the rights of individuals in states, like Maryland, that have legalized cannabis for adult use and show the state’s commitment to addressing harms to communities that have been disproportionately impacted by prohibition.”

House Bill 1071 also reduces the fine for public consumption of cannabis from $250 to $50. After receiving final passage in the closing minutes of the current legislative session Monday night, the bill has been sent to the governor’s desk for consideration.

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