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How to Best Prepare Your Defense to Cannabis Trafficking Charges

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It starts with a traffic stop.  Oftentimes the officer will claim a subject crossed a yellow line or followed another motorist too closely.  The traffic stop seems fairly low level.  The officer asks the subject back to his cruiser.  He has a seat inside.  The officer asks for identification and starts small talk with the subject.  The officer then gears his questions towards a completely different topic than what the motorist believes he is being issued a citation for.  The officer begins asking where the motorist was coming from, why he didn't fly instead of driving, where did he stay, for how many nights, why did the other occupant of the vehicle come along for the trip, where does he work ...  The officer is laying a trap for the unwary subject.  The subject may not even be aware of what the officer is doing.  He is trying to get information that the vehicle first off had traveled from another state to Illinois.  Then he is trying to get the subject to give information that will be inconsistent with either another subject whom he is traveling with or with evidence (receipts) discovered in the vehicle.  After he is done questioning the subject he lets him out of the cruiser.  The subject believes he is almost free to leave.  He is handed a written warning and told to drive safely the remainder of his trip.  Just at that moment the officer asks the subject if he would mind consenting to a search of the car.  He may also tell him that a K9 is on the way to conduct an open air sniff search.

What should the subject do?  If he has anything illegal in the car the officer will find it.  Guaranteed.  It can be hidden in a side panel, inside the dash, inside a tire, anywhere.  The officer will find it.  If the K9 arrives quickly enough and reacts positively for the presence of drugs the car will be detained until a thorough search is conducted.  They can tow the vehicle to another location to dismantle it at that point. 

The person should politely state that he does not consent to any search and wants to be on his way.  The recent decision from the United States Supreme Court has solidified the subject's right to do so.  Any further detention by the officer becomes unconstitutional at that point.  Unless the officer can prove he has further reasonable grounds to detain he must let the person loose and free to leave the scene.  The officer cannot detain the car and allow the subject to leave.  That is an unconstitutional detention.  See Rodriguez v. United States (2015) http://www.supremecourt.gov/opinions/14pdf/13-9972_p8k0.pdf.  The Rodriguez decision is very important in these scenarios because former precedent didn't really come out and state that ANY amount of time prolonged after the point where the officer should have released the subjects was an unconstitutional deprivation. 

If a K9 is used to facilitate the search a full records request by defense of the Canine Packet as well as obtaining the ILETSB records for the K9 and handler (separate certificates) are mandatory.  The Canine Packet will detail yearly training and results for tests.  Aside from the minimum testing required, there are many other types of training certificates that may exist in each canine's file.  The statute in Illinois which mandates yearly K9 training and certification does not specifically state what penalty may befall the K9 whose sniff is relied upon when they haven't been properly certified.  The statute's citation is: 50 ILCS 705/10.12.  It not only requires the mandatory training be complied with.  The statute requires the training proof be submitted to the ILETSB who in turn certifies that the K9 is current.  The ILETSB is the same agency that certifies police officers in the State of Illinois.  I have prevailed on motions to suppress with the mere fact that the K9 was not properly certified.  My clients benefitted in that the evidence against them garnered from the sniff search was suppressed thereby leading to a dismissal of the charge against them.  See one such case article: http://www.thejournal-news.net/news/local_news/drug-defendants-escape-charges-on-technicality/article_8bc1be42-20f6-11e4-8429-0019bb2963f4.html.

One technique used by Illinois State Police drug interdiction agents is to claim that they notice a wide variety of bodily expressions of nervousness.  Judges have called this a "human polygraph" and have frowned upon relying upon that type of testimony.  However, some judges do put credence into that type of testimony.  Examples are an increased heart beat by watching the jugular vein, quickening of eye movements, repeated jestures, etc.  See. US v. Zambrana (S.Dist.Ill.) page 6 of the opinion : http://www.ilsd.uscourts.gov/opinions/ilsd.3.3.cr.30196.412720.0.pdf.  Different officers may espouse different factors they look for when determining that a subject is acting more nervous than is appropriate.  As the Zambrama opinion (on remand) states many of the factors are explainable and should not add to the officer's reasonable suspicion to believe criminal activity is ongoing. 

Dash cam videos are a major part of each criminal defense case involving Illinois State Police as well as many other agencies.  The Illinois State Police are mandated to have dash cam video in their patrol cars by statute.  This requirement began June 1, 2009.  20 ILCS 2610/30.  Failure of the ISP to have video always creates a question.  If they claim the video does not exist due to malfunction it is proper to obtain the repair records for the device.  If they claim the video doesn't exist because of accidental erasure the defense may move for sanctions to be imposed against the State.  It is wise to always demand preservation of any video that may exist directly to both the ISP and the State's Attorney when beginning to defend such a case.  Failure to demand the preservation may allow a valuable suppression tool to be lost. 

There are many other issues that must be addressed when defending a cannabis trafficking case.  Make sure you contact a qualified attorney when deciding whom to hire to represent you in these cases.

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