Does Not Pass the Smell Test - Search & Seizure

Under Illinois law, a police officer has the authority to search your car during a routine traffic stop if the officer smells marijuana coming from inside. Illinois continues to follow the United States Supreme Court’s analysis under the Fourth Amendment to the United State’s Constitution that the scent of marijuana provides an officer with probable cause to search the car. Other states, such as Massachusetts, where possession of marijuana weighing less than an ounce is not a crime, offer those caught with a small amount of marijuana some protection from criminal prosecution and prevent an officer from searching your car if they only smell marijuana.

Possession is 9/10th of the law

In Illinois, possession of a perceptible amount of marijuana, or cannabis, is a crime. Therefore, a police officer who smells cannabis coming from a car has the legal authority, known as probable cause, to search the car, and even the person, to find the source of the smell. Police officers have the authority to search your car--which includes any place where cannabis may be concealed--you, your possessions, and even your passengers. They can even make you take your shoes off. At least one Illinois Appeals Court considered police action reasonable after they ordered a passenger in a car remove his shoes when they smelled cannabis during a routine traffic stop. It does not have to be a strong odor. Even testimony of a faint odor perceived by an officer trained in drug interdiction will be sufficient to provide probable cause.

According to the United States Supreme Court, reasonableness is the “touchstone of the Fourth Amendment.”  In other words, if the police act “reasonably” then whatever they seize from you or your car is admissible against you in court.  Of course, the prosecution continues to have the burden of proving you actually or constructively possessed the cannabis beyond a reasonable doubt for a judge or jury to find you guilty.

What is Unreasonable?

If the police acted unreasonably, then the evidence seized must be suppressed. Although the law is heavily in favor of the prosecution in these cases, the defendant still has a chance to get the evidence against him suppressed.  Illinois courts will suppress evidence when the police make a mistake that violates a defendant’s constitutional rights. A common mistake police make is extending a car stop longer than necessary for police to investigate the violation of the law that authorized the car stop in the first place. So, if police stop you to give you a citation because your taillight is out, the police cannot prevent you from leaving once they have cited you for the infraction. In other words, the police cannot hang on to your license after the citation is written so they can have a drug-sniffing dog come to the scene to further investigate. If they do, whatever the police seized must be suppressed.

What happens if you are charged with cannabis possession?

You should contact a lawyer who is experienced in criminal defense immediately. Failing to do so could hurt your case. If an officer seizes cannabis from you or your car at a traffic stop contact our team at Barney & Hourihane to protect your civil rights.