Nov 7, 2018
Episode 556 (Duration 24:34). Charles Schierer of East Peoria, Illinois, explains why it's a good time to change the "smell of cannabis" rule.
"Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" -- Charles Schierer
Charles Schierer's first love is practicing criminal law in federal court. He started in the Peoria County Public Defender's Office. It didn't take him long before he was practicing before the United States Central District District Court.
Chuck's firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative.
Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611
✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)
✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck's personal opinion on what the best version of the "smell of cannabis" rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)
✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really "get it?" How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)
✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don't have to worry about the government having their nose in our business anymore...WRONG. Decriminalization is not exactly the same as legalization. (Go to 8:18)
✓ The burning leaves example...the difference between burning yard leaves and burning cannabis leaves...a real life practical example...The absurdity of police action...What police are really looking for in these cases. Nothing wrong with being a little intellectually honest and consistent. (Go to 9:12)
✓ "Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" (Go to 13:10)
✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states. Here's the best way to interpret what those states have said on this issue. (Go to 14:40)
✓ Does smell equal probable cause? Is it a done deal when the whiff is in or is it just one factor in the probable cause determination? That's what courts have to figure out. What the cases do and don't say matter. For example, there's a difference between raw cannabis and burnt cannabis. (Go to 15:45)
✓ The reason why Chuck says In re O.S. was well reasoned but still wrong...It does a good job of describing a situation that will happen over and over again. The case also did this one other thing very well. (17:50)
✓ This is what will happen if the court tries to distinguish between a strong odor, a moderate odor and a faint odor of cannabis. You'll invite certain conduct by the police. Is that what we want? Lead the police down this path and don't you worry they will go down it. (Go to 19:40)
✓ More absurdity: They arrest you for being addicted to opioids, encourage you to smoke weed via the Alternative To Opioids Act, then at the first scent of cannabis they toss your life and pull you out of your car as they proceed to go through everything in it. (Go to 21:13)
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