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Ruling eliminates warrantless auto search for smell of cannabis

On Behalf of | Nov 29, 2021 | Drug possession |

Many states across the nation, including Illinois, have legalized cannabis for personal use. Even with that, there are limits to its legality. Since it was only legalized in the state at the start of 2020, the laws are still evolving with frequent confusion as to when arrests will be made and how law enforcement can legally go about conducting searches. One such gray area is whether police can conduct a vehicle search based solely on the smell of the substance. A judge recently issued a decision on this matter, but it is still up in the air with the possibility of appeals. This is an example of the type of issue that people arrested on cannabis charges should be cognizant of as they prepare a legal defense.

Understanding Illinois law for cannabis

On Jan. 1, 2020, it became legal to possess, use and buy cannabis in the state. Even with that, it must be on private property if the owner allows it or at a location with a license. It is illegal to consume it in public even if it is an area near a dispensary. A key point that is directly related to this specific case is if it is consumed in a vehicle. It cannot be legally consumed in a vehicle whether it is moving or not. However, it can be transported in a vehicle provided it is inaccessible by anyone in the vehicle and is in a child-resistant container. If it is purchased in Illinois, it cannot be legally transported out of state. There are licensed dispensaries in the state with time constraints as to when it can be purchased – 6 a.m. to 10 p.m. – and limits on how much can be possessed by residents and non-residents.

Ruling changes law enforcement protocol regarding smell of cannabis in vehicles

In a case that will impact how law enforcement goes about searching vehicles after claiming to smell cannabis, a judge ruled that the odor by itself is not sufficient to give an officer probable cause to search the vehicle without a warrant. Although decriminalization goes back more than two years if a person had a limited amount of cannabis, it did not apply to motor vehicles when an officer made a stop. The odor itself allowed a search.

In December 2020, a driver was stopped by an officer. The officer smelled cannabis, searched the vehicle and arrested the passenger for a misdemeanor when he was found to have 2.6 grams of the substance. The defense included an attempt to suppress that evidence questioning whether the smell of cannabis allowed police to search a vehicle without a warrant. The judge ruled that it should not be allowed based on the drug being legal in the state.

The search and evidence can be called into question as part of a defense

With this ruling, people should be aware that they now may be able to question a vehicle search after a traffic stop and subsequent drug charges. These cases can impact anyone, but they frequently involve younger people for whom an arrest and conviction can cause a litany of future challenges personally, professionally, educationally and financially. Although the cannabis laws are still evolving and it is legal within limits, that does not mean people cannot be confronted with charges because of it. Understanding how to cobble together a defense includes analyzing the evidence and how it was accrued. Even if a case moves forward, there are positive outcomes like a plea agreement, a reduction in charges, treatment and even an acquittal. Assessing the entire case is key and having experienced representation is useful from the beginning.

 

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