Smell Law Goes to Supreme Court

Are the odors inside your vehicle yours?

By Susan Ball
|  Tuesday, Sep 29, 2009  |  Updated 1:14 PM CDT
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Probable Cause to Sniff

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Officers have the right to search a vehicle if drugs are in plain view -- but what about plain smell?

The Illinois Supreme Court is trying to decide just how much car odors are a property of their owner, if at all -- and if an officers overstep their limits of power when they follow their nose.

The "plain-sniff" debate stems from a 2006 case in which Quincy Police Officer Mike Tyler, then a seven-year veteran of the force, observed a pickup truck parked on the sidewalk.  Before approaching the vehicle he traced it back to its owner, Cheryl Bartely, whom he had heard was a methamphetamine user.  He then called in Officer Darin Kent for backup. 

Tyler, who did not observe any illegal items in plain view during the traffic stop, instructed Bartely to keep her doors and windows closed, and turn her vents on high -- forcing all odors out of the vehicle.  Kent then approached the truck with a drug-sniffing dog, trained specifically to sniff a vehicle's seams.  The dog alerted officers to both of the truck's doors, prompting a follow-up interior search which turned up methamphetamine residue and paraphernalia -- leading to an unlawful possession charge against the driver, according to court documents.

This "set-up procedure" is one taught at the canine academy and Illinois State Police, Tyler testified.  But Bartely's lawyer Arden Lang claimed the search was unlawful, since officers had no probable cause to enter the vehicle before the dog alerted them.  The courts initially agreed to suppress the evidence against Bartely, stating that the officers "manipulated the air within the vehicle that would not otherwise have been subject to their plain view or smell." 

But court judges have yet to come to a consensus, prompting the case to be heard in Springfield.

Chief Justice Thomas Fitzgerald cited how airport luggage is "fluffed" to force out air during screening without any incidence -- how is this case any different? 

The State agreed, claiming that airport "government agents do not violate the fourth amendment when they prepare a defendant's luggage to facilitate a canine sniff for drugs," according to case documents.  They also argued that a "set-up" procedure is not technically a search -- because it was "public air."

But Justice Ann Burke pointed the finger at the police officers, questioning why they didn't perform canine search of the exterior before they instructed the driver to use the controversial procedure. 

Is the new drug-dog search procedure nonintrusive or does it illegally magnify the odors from the interior of a car?  The Supreme Court judges will have to decide.

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