Pot-smoking Pantera fans? A cannabis DUI case study.

This firm’s client was headed home from a Pantera concert in Chicago with his four friends when he was pulled over by the Illinois State Police on I-94 for speeding. When the officer approached the driver (our client), the officer detected a “strong odor of cannabis” coming from the vehicle.

When the officer asked our client why the car smelled like cannabis, our client told the officer that people had been smoking pot around him at the concert but that he had not smoked. And that was our client’s consistent answer to that question which was repeatedly put to him. The four passengers said the same exact thing: everyone denied smoking cannabis and advised the officer that the strong scent was due to other pot-loving Pantera fans. (The officer asked our client and his passengers 26 times whether they smoked pot that night, and each time everyone gave the same denial.)

The officer then ordered all of the occupants out of the car, placing our client in the back of his squad and the four friends sat against the median. The officer searched all five occupants but failed to unearth any contraband on them.

Increasingly frustrated that he didn’t catch our client red-handed with cannabis or drug paraphernalia, the officer then searched the vehicle with our client’s consent. The officer tore the car apart looking in every nook and cranny for the weed but found nothing. The officer was now pissed because he was certain he stumbled upon a career-enhancing drug bust. Hitting a dead end, the officer turned his attention to a potential DUI.

The officer administered Standardized Field Sobriety tests (and a couple non-standardized tests), and, surprise-suprise, the officer said our client failed those tests. Our client was then arrested for Driving Under the Influence (DUI) in violation of 625 ILCS 5/11-501(a)(6).

After being retained, we subpoenaed records and training materials from the Illinois State Police, filed a Petition to Rescind the Statutory Summary Suspension and filed a Motion to Suppress. We argued that the officer lacked probable cause to arrest our client for a DUI for six reasons:

1. The officer had no evidence that our client had ingested cannabis that evening;
2. The officer was repeatedly given consistent denials from our client and his four passengers. All of them advised that people were smoking pot around them. (We argued that this was no different that a designated driver getting a beer spilled on him at a rowdy Blackhawks game.)
3. The officer’s search failed to uncover any cannabis or drug paraphernalia;
4. The officer did not have adequate training to make a probable cause determination for a cannabis DUI;
5. The officer’s administration of the SFTs departed from the applicable standard protocols; and
6. The officer’s administration of non-Standardized Field Sobriety tests (finger-to-nose and “modified Romberg test”) cannot form the basis for the officer’s probable cause.

We ran the hearing on our Motion and the Petition to Rescind, and we won. The judge determined that the officer lacked probable cause for his arrest. Our Motion to Suppress was granted, as was our Petition to Rescind the Statutory Summary Suspension. And the State dismissed the DUI. But the judge’s rationale was not directly related to one of our 6 arguments.

Instead, the judge held that the officer unreasonably prolonged the stop and therefore violated our client’s Fourth Amendment’s right to be free from unreasonable searches and seizures. Most important to the judge was the fact that the questioning of all five occupants, the search of each, and the search of the vehicle took approximately 45 minutes. In other words, it took almost an hour for the police to turn its attention to a possible DUI, and, once the searches failed to turn up any contraband, the police lacked authority to continue its detention of our client.

Last year, the U.S. Supreme Court held:

[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure is justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing the ticket. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

Rodriguez v. U.S., 135 S.Ct. 1609, 1612 (decided April 21, 2015). Further, “[a]uthority for the seizure ends when the tasks tied to the traffic infraction are–or reasonably should have been–completed.” Id. at 1614 (emphasis added). Despite not raising that exact issue in our briefing, that was the issue that convinced the judge to side with our client.

To our client, the judge’s reasoning is almost irrelevant–we beat the DUI! To the criminal defense practitioner the takeaway is more nuanced. This case reinforced the following lessons: (1) “You miss 100% of the shots you don’t take.” ~Wayne Gretzky. If we didn’t run the Motion to begin with, our odds of success were nil. (2) Throw lots of different theories in your Motions to Suppress because you never know what will compel your particular judge. (3) Even Pantera fans like to smoke up.

Dreifuss, P.C. is a full-service criminal defense law firm available to handle all of your defense needs from Chicago to Waukegan and Nationwide. We are available to represent you or a loved one charged with the most serious crimes in state and federal courts. Please contact us at 847-893-9399 to schedule a free, initial in-office consultation.

This post does not create an attorney-client relationship and is not intended to provide legal advice. This post is for informational purposes only. We welcome your calls, e-mails, or letters, but please do not send any confidential or time-sensitive information until an attorney-client relationship is established. Each case is unique, and past performance does not guarantee future results.