ATTORNEY MATT PAULSON AS SEEN IN THE ISBA - ILLINOIS STATE BAR ASSOCIATION / ILLINOIS BAR JOURNAL 

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The Third District of the Illinois Appellate Court’s holding on automobile searches based on the scent of burnt cannabis alone.

 

The Third District of the Illinois Appellate Court’s recent ruling concerning searches based on the scent of burnt cannabis was welcomed by the criminal defense bar as part of the natural evolution of the law after the state legalized the substance in 2021.

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In People v. Stribling, the Third District held that the smell of burnt cannabis alone, without additional “corroborating factors,” was not enough to justify a search of a vehicle during a routine traffic stop. Attorneys say this case may be a first step toward a wholesale change in police practice in conducting traffic stops.

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“It is groundbreaking,” says Matt Paulson, a partner with Paulson, Vandersnick & Bradfield in Rock Island. “Before this, courts used to say that there is no precedent, so they were still bound by the precedent of cases decided before legalization.”

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Illinois became the 11th state to legalize cannabis in 2020. Before legalization, it was well-settled law that the smell of cannabis alone provided probable cause for law enforcement personnel to conduct a search of a vehicle during a traffic stop. Practitioners say this made sense when cannabis was illegal under the Cannabis Control Act, but that everything changed when cannabis was legalized.

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“The justification behind that is that an officer detecting an odor of cannabis was detecting the odor of contraband,” Paulson says. “The officer was detecting something that the legislature had determined was illegal to possess. Now the Cannabis Regulation and Tax Act says that cannabis is legal. It is not just decriminalized, but legal to consume and possess. That is a huge change because the odor of cannabis is no longer the result of illegal activity.” 

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What Happens During An Average Traffic Stop

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Matthew Paulson and Larry Vandersnick describe a drug interdiction traffic stop and analyze where it went wrong for the prosecution.