As the movement for the legalization of recreational and medical cannabis gains momentum across the United States, many states are starting to address cannabis-related driving offenses in a way that mirrors existing laws for alcohol-induced intoxication.
A recent ruling by the Illinois Supreme Court has sparked significant attention by stating that the mere smell of burnt cannabis does not provide police with enough reason to conduct a warrantless vehicle search. This makes Illinois the sixth state supreme court to come to such a conclusion, standing in stark contrast to the ruling from the Wisconsin Supreme Court just a year prior, which affirmed that the scent of cannabis could indeed serve as probable cause for a search. This divergence underscores the patchwork of cannabis laws across the country; while recreational cannabis is legal in Illinois, Wisconsin maintains its prohibition.
The authority for police to conduct warrantless searches dates back to the 1920s during alcohol prohibition. A pivotal 1925 Supreme Court decision determined that officers had the right to search vehicles based on probable cause regarding illegal alcohol. This principle persisted beyond prohibition, allowing law enforcement to act on suspicions of impaired driving.
Paula Savchenko, an attorney and founding partner at Cannacore, which aids cannabis businesses in acquiring licenses, highlights a growing trend in legalized states where courts are acknowledging the legality of cannabis while simultaneously criminalizing driving under its influence. “When officers investigate a driver for DUI, the smell of alcohol is significant; however, they usually require additional evidence to substantiate their suspicions,” she explains.
The Illinois Supreme Court’s decision recognizes the smell of cannabis as a contributing factor for establishing probable cause, but it also asserts that it cannot stand alone as the basis for a search. Will Garriot, a law professor at Drake University, comments, “For a long time, the odor of cannabis has been a key enforcement tool for police.” In the past, the illegality of cannabis made its smell a valid justification for searches, but with changing laws, the bar for probable cause has been raised.
Consequently, officers are now tasked with identifying other signs that may indicate a driver is impaired by cannabis, especially given that, unlike alcohol, there is no widely accepted test similar to a breathalyzer specifically for cannabis use.
Specifically addressing the term “burnt cannabis,” the Illinois Supreme Court ruling also reflects the state laws that require drivers to carry cannabis in odor-proof containers. Across the nation, various local regulations mandate cannabis users to mitigate the smell of their products; for example, Minnesota recently enacted a law prohibiting cannabis use in multi-family housing.
Christopher Strunk, an attorney specializing in cannabis and environmental regulation, cautions against these types of laws, suggesting they can lead to unnecessary complications. “In my opinion, there isn’t a justifiable reason for such regulations. Unless you are very close to it, the odor from cannabis is not particularly overpowering,” Strunk asserts. He adds that these laws can provide a pretext for strict enforcement in municipalities or regions opposed to cannabis.
Moreover, such regulations can disproportionately affect vulnerable populations, including individuals facing homelessness and communities of color.
Savchenko notes that other industries producing odors, such as wineries and breweries, face similar regulatory scrutiny. For instance, Vermont has mandated air pollution control permits for hard cider and whiskey distilleries.
While laws targeting individual cannabis consumers may be selectively enforced, broader environmental regulations like the Clean Air Act apply universally to all industries that generate unpleasant odors, including cannabis production. Savchenko observes that in some states, cannabis businesses are required to submit odor control plans prior to receiving their licenses.
Nevertheless, odor issues from cannabis facilities continue to create tension within communities. Strunk refers to an ongoing legal battle in Santa Barbara County, known for being responsible for 40% of California’s cannabis production. Residents in Carpinteria have initiated a class-action lawsuit, claiming that noxious odors from adjacent cannabis operations are diminishing their property values. They are advocating for the installation of expensive carbon scrubbers to alleviate the offensive smells.
“Ultimately, any business that emits unpleasant odors could potentially violate the law and face enforcement actions,” Garriot explains. “However, not every complaint leads to action, and many residents are willing to tolerate odors from businesses that significantly contribute to their local economies.”
