Kane County Nuggets: The Best Reason To Change The "Smell Of Cannabis" Rule

The Best Reason To Change The "Smell Of Cannabis" Rule

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.

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In This Episode...

"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

Attorney 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.

Contact Information

Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611

(309) 839-2024

chuck@srtriallawyers.com

"Can't Miss" Moments:

✓ 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)

Links & Resources

In re O.S., 2018 IL App (1st) 171765 (June)
Central District of Illinois | United States District Court
CJA Central District Panel
Peoria County Public Defender's Office
Illinois Cannabis Control Act - Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4)
People v. Rice - Third District Appellate Court - Case No. 3-17-0134
Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011) (mere odor of marijuana no longer provided reasonable suspicion of criminal activity following decriminalizing of small amounts)
People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred)
People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (odor of marijuana in a parked car provided police officer with probable cause to search the vehicle and the occupants therein)
State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity)
People v. Zuniga, 372 P.3d 1052, 2016 CO 52 (Colo., 2016) (concluding that the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing)
Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana)
State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law does not undermine the significance of the smell of marijuana as an indicator of criminal activity)
The Illinois Alternative To Opioids Act
Illinois Policy.org on the Alternative To Opioids Act

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