Charles Schierer Interviewed by the Criminal Nuggets Podcast

As felony criminal defense and plaintiffs’ personal injury lawyers, our Schierer & Ritchie, LLC team knows much about fighting for the people of Peoria, Illinois. Recently, our firm’s own Charles Schierer sat down with the criminal law podcast Criminal Nuggets to discuss one of the most unfair legal precedents that negatively affect Illinois citizens: the “smell of cannabis” rule. You can find the episode below.

The Smell of Cannabis Rule

Under Illinois state law, the “smell of cannabis rule” allows police officers probable cause to search a vehicle, along with the persons and contents of anything inside the vehicle, if they believe they can detect the smell of cannabis. As someone who came up as a public defender in Peoria felony courts, where he received many class 3 and 4 drug cases, Charles has long been familiar with the smell of cannabis rule. He also argued a case last year in Bureau County that dealt with the cannabis smell rule.

As Charles told Criminal Nuggets, the standards for cannabis cases were entirely different during the time of the Cannabis Control Act, where the smell of cannabis was often used to pull people over and charge them with other crimes in addition to cannabis possession. But since Illinois has decriminalized cannabis and amended state law so that anything under 10 grams of marijuana is not a crime, the practice of using cannabis smell as probable cause must now be viewed differently.

According to Charles, a police officer should have more to go on than smell. For him, the 10 g amendment suggests that the judiciary understands people are using cannabis, which should, in turn, mean they understand cannabis users are also prone to smelling like cannabis. “Police officers are smart, they’re well-trained,” he told Criminal Nuggets, “So, I believe the law is, if you’re going to pull someone over and just say, ‘their breath smelled like alcohol,’ that’s not enough. So how is it enough to smell like cannabis without smelling like anything else?”

Some would argue that since “decriminalized” does not mean “legal,” the use of cannabis smell as probable cause should not change. But, as Charles explains on Criminal Nuggets, possession of cannabis should now be viewed like other civil infractions. “Let’s say I’m burning leaves in my yard, and an officer drives by,” he states. “I might be subject to a fine, just like I might be subject to a fine if I’m in possession of under 10 g of cannabis. Are we going to let the police officer go into my garage or my shed… to see if I was the one who was burning the leaves?”

As Charles observes, cannabis smell might be present in a vehicle from the previous night, or because it’s clinging to someone’s clothes, or because someone else who smoked marijuana was in the car, or because someone smoked a little bit but not enough to put them under the influence. Why is it fair then, he asks, to allow a search when there’s nothing explicitly indicating there are more than 10 g of cannabis present in a vehicle? As Charles sees it, these improper searches are still used to justify looking for other things in a vehicle, which may lead to more serious criminal charges. Charles argues that if an officer suspects there is a criminal amount of marijuana in the vehicle, they should first ask if someone has been smoking, just as they would with someone who has been drinking. Furthermore, he states that police should have probable cause, which goes beyond smell, to search, such as visual indications of marijuana use.

Charles points to other states, such as Massachusetts and New York, which are currently amid cases trying to determine whether smell alone should justify searching a vehicle. For Charles, the issue comes down to the idea that smell should not be a probable cause. As he sees it, the courts must determine whether smell should be a factor in determining probable cause or if it can be the sole reason a search is allowed to take place. Charles also believes that the law must determine the difference between the smell of burned and un-burned cannabis and create more straightforward guidelines for law enforcement to make their jobs more manageable as well.

Charles concludes by talking about the “Alternative to Opioids Act,” which, under Illinois State Law, suggests that medical marijuana may be a better alternative to heavy medication for nonaddictive pain treatment. As Charles tells Criminal Nuggets, it’s inherently unfair to encourage the use of medical cannabis on the one hand but punish medical cannabis users for the smell of cannabis on the other.