People v. Abdur-Rahim, 2014 IL App (3d) 130558 (August). Episode 015 (Duration 10:08).
7 year drug conviction reversed, even though the officer said he smelled marijuana.
Police Car Search Legal in Illinois if They Smell Marijuana
In 1985, the Illinois Supreme Court first authorized a police car search if the officer claimed to be able to smell marijuana in the car. See People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985).
This decision was followed by later appellate courts. See People v. Hansen, 326 Ill. App.3d 610 (4th Dist. 2001) and People v. Boyd, 298 Ill. App. 3d 1118 (4th Dist. 1998).
The Supreme court said that
“…distinctive odors can be persuasive evidence of probable cause. A police officer’s detection of controlled substances by their smell has been held to be a permissible method of establishing probable cause. This method of detection does not constitute an unconstitutional search. In the case at bar, it was the duty of [the officer], when confronted with circumstances which tended to indicate that criminal activity was taking place to investigate in order to determine whether such criminal activity in fact existed. Based on the particular facts of this case, including the officer’s experience and training on the detection of controlled substances, we find that probable cause existed to justify the warrantless search.”
Stout, 106 Ill 2d at 88.
This is the law in Illinois. Which only begs the question. If the officer was claiming to smell marijuana, why did the search of this car get reversed by the appellate court?
Facts of This Case
Essentially, we have a trooper who is taking forever with the traffic stop.
He called for the police drug dogs but they were late in arriving to the scene. When the officer finally has finished writing the tickets he holds on to the ticket and defendant’s driver’s license.
Defendant is then removed from his truck. And while standing outside the truck the officer asked defendant about the smell of marijuana coming from inside the truck.
Defendant admits to contraband being in the center console. Cop finds it. The dogs finally show up. The police drug dog indicated in the back of truck. Felony amounts of marijuana are found by the police.
Officer’s Comments About the Smell of Marijuana
Part of the reason for the reversal, is that the officer is heard expressing his true feelings about what he thought he was smelling.
Exactly what the trooper said about the smell of marijuana coming from the truck was this:
“When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”
The trooper was talking to his dispatch operator. He was more or less thinking out loud, outside the presence of the Defendant.
Essentially, the trooper was admitting that the smell was not that strong and that he couldn’t really draw any conclusions from it.
Is this, situation really any different from every other case where an officer testifies in court to smelling a “faint odor of cannabis?”
The difference in this case, is that the officer’s doubts were recorded on his mic and delivered to the defense in discovery. One only wonders, what the officers testimony at trial would have been had he not expressed his true opinion on the microphone?
Even if Officer Subjectively Believed in the Reliability of His Smell Should the Constitution Have Faith in That?
This brings me to my second point, let’s look at all the other cases where the police are saying that, through their training and experience, they have the ability to detect cannabis from what they smell.
Even if the police in court actually believes that, should the law put so much faith in “faint odors of cannabis”?
Just because the cop says he smells marijuana, may not necessarily mean marijuana is present. I have gotten off an elevator in the courthouse plenty of times convinced that the smell of marijuana got stuck to my suit. Usually, there are other people in the elevator who reek of that smell.
So, does that smell now mean that I now have marijuana on me, and that I can be legally searched? Or does it just mean that my clothes was recently in an environment abundant with the smell of cannabis?
In short, what exactly are the findings that justify the Supreme courts believe that “distinctive odors can be persuasive evidence of probable cause”? Stout, 106 Ill 2d at 88.
When it comes to the faint odor of cannabis, I would suggest that this whole area of law be reexamined. This officer was caught on tape questioning what he smelled and what it proved. Maybe, it’s time for the court system to engage in this same level of scrutiny.
Holding the DL was the Deal Breaker
Rather, than return the driver’s license to Defendant and issue him the citations, the officer removed him from the car to pursue the line of questioning dealing with the marijuana.
In the eyes of the court, this unnecessarily prolonged the traffic stop and turned the police encounter into an unreasonable traffic situation.
By not returning the DL when the traffic stop was essentially over Defendant could not leave. He was, thus, being detained unreasonably and the court found a Fourth Amendment violation.
The conviction was reversed.