In today’s criminal defense world, the increasing use of video footage seems like a potential holy grail for a client’s case, but what about evidence that literally cannot be seen? Sure, a camera can directly refute a baseless traffic stop or improper actions by officers, but what about a smell? A camera is useless in such a fight.
“Upon approach of the vehicle, responding officer smelled a strong odor of marijuana.” Ask any seasoned criminal defense attorney and they’ve heard this line too many times to count. Officers know they can claim the smell of weed and search the vehicle? It’s a highly effective investigative tool that often pays off. But it’s not bulletproof. So what is the law and how can you use it to meet this challenge?
Simply put, the smell of cannabis in a vehicle gives an officer probable cause to search the vehicle, its contents, and everyone in it. People v. Stout, 106 Ill. 2d 77 (1985). People v. Williams, 2013 Il App (4th) 110857, Wyoming v. Houghton, 526 U.S. 295 (1999). If an officer tells you that he or she detects the odor of cannabis, be polite, remain silent, and realize that they will search your car. This is not where the battle is fought.
Don’t be this guy: https://www.youtube.com/watch?v=jcbrfGTqbqA. Don’t try to engage in a legal debate with the officers. Don’t put your family through the trauma of witnessing you getting tased and arrested. You are not going to win this battle with the police. You will, however, “win” new charges that will likely hold up in court.
Right or wrong, if the officer says those magic words, they are going to search you and your vehicle. The best thing you can do is remain calm and politely respond to basic identifying information. You can also ask them if you are free to leave and why they are searching you/your car. Tell them (nicely) you do not consent, but stop there. Anything further may not be in your best interest. You do have a right to not incriminate yourself, use it in this situation. It will help in the battle to come.
In Illinois, three issues often arise when analyzing drug and/or other criminal offenses resulting from a traffic stop: 1. The legal justification for the stop aka traffic violation; People v. Rush, 319 Ill.App.3d 34, (2001); 2. Whether the stop is unreasonably prolonged beyond the time necessary to complete the mission of the traffic stop. Rodriguez v. United States, 575 U.S. ___ (2015). 3. A person’s knowledge of, and ability to, control the contraband. People v. Schmalz, 194 Ill.2d 75, 82 (2000).
Why You Need An Experienced Criminal Defense Lawyer:
With proper representation, these types of searches can be challenged in numerous ways. At Robert Callahan & Associates, we employ a multi faceted investigative technique to challenge such a search and arrest by:
- Investigating the Stop-Gathering & validating the evidence that claims to support the reason you were detained or the vehicle stopped;
- Challenging the smell- Is there any evidence to suggest the officer is using this excuse as a pretext or has doubts? People v. Abdur-Rahim, 2014 IL App (3d) 130558;
- Investigating Knowledge-Identifying evidence that could show you were not aware of the contraband;
- Analyzing the Investigation– making sure officers followed the law and all proper procedures in a reasonable and timely manner;
- Thorough review of all the evidence–Upon representation, we will immediately begin working on obtaining the alleged evidence and researching its application to the law for your specific case.
You may not be able to stop an officer from searching your car if they claim to smell marijuana but you may be able to stop the consequences of what happens next. While the smell of marijuana may be enough to justify a search of a vehicle and its passengers, your rights don’t stop. Anyone facing this situation needs immediate consultation from an experienced criminal defense attorney. With 23 years of criminal defense advocacy, Robert Callahan & Associates is here to help.