Can You Be Arrested Because of How You Smell?

dogUnless you’ve purposely rolled in cow manure to annoy your neighbor, the answer of course is “no.” Not everyone smells as wonderful as you do, but a lack of personal hygiene has never been a crime in Chicago or elsewhere. Otherwise, that kid that you remember from High School might still be in jail.

Take a whiff on me, that ain't no rose
Roll up your window and hold your nose
–From “Dead Skunk” by Loudon Wainwright III

So How Can a Smell Get You Arrested?

Police need what’s called “probable cause” in order to arrest someone or search their property. Probable cause basically means a reasonable, articulable suspicion that a crime has been or is about to be committed. So, Chicago Police can’t just arrest people or search belongings based upon a mere hunch or a feeling. They need something more to support their actions.

Usually, this probable cause to act is based upon things that the Police see or things that are told to them, such as when the police:

  • Witness a crime or traffic offense in progress
  • View a video of a crime
  • Hear a confession from an offender
  • Listen to a witness describe a crime or offense they watched occur
  • See physical evidence that links a crime to a certain person
  • Hear a car crash, gun shot or explosion and link the event to a crime that has just occurred

But Probable Cause isn’t only about things that the police can see and hear. It can be based on any of the senses, including things that they smell or even taste.

Sir, Have You Been Drinking Today?

Police are curious by nature; some might say downright nosey. They want to know what’s in your glove compartment, what’s in your trunk and what’s in your pocket. They also want to know what’s in your stomach and what’s in your bloodstream. Thankfully, the Fourth Amendment of the U.S. Constitution protects us citizens from unreasonable searches and seizures (or it at least, it purports to protect us).

So, how is an officer supposed to satisfy his or her curiosity about what you’ve got going on? Often, it’s by using the sense of smell to create probable cause for a legal search. For over a hundred years, police have used their noses to detect the odor of alcohol on drivers. It doesn’t take any specialized police training to be qualified to discern the odor of alcohol. So, when a person has been pulled over and charged with a DUI, if the officer indicates familiarity with the odor of alcohol and has smelled it hundreds of times before, that is usually sufficient to satisfy a judge that the officer correctly identified the odor of alcohol.

When the police smell alcohol on a driver’s breath, this information can be used as part of their “probable cause” to justify detaining or searching the driver or the vehicle. When dealing with an adult, the odor of alcohol by itself isn’t likely enough though to justify an arrest or a search, because no matter how experienced a police officer may be, no one can truly quantify the odor of alcohol (in other words, one beer smells pretty much like ten beers) and there’s no law against adults smelling like booze. In Illinois, where you must be 21 to purchase or consume alcohol, the mere smell of alcohol may be enough to justify a search however, as minors are not supposed to possess or use it.

“Legal Limit” for Cannabis and Alcohol in Chicago

Until very recently in Chicago and across Illinois, any amount of cannabis in your system was generally enough to charge and convict a driver of the offense of Driving Under the Influence of Cannabis, a Class A misdemeanor. But then came new laws that first legalized the approved consumption of medical marijuana for certain medical conditions. Then more recently, the use of recreational cannabis was decriminalized and later legalized in Illinois. Along with that legislation, for the first time in Illinois a 5 nanogram “limit” was established in Illinois, which is similar in concept to the .08 “limit” for alcohol. This new nanogram limit was necessary because police could no longer criminalize driving for just “any” amount of cannabis in the driver’s system when cannabis was no longer illegal. They needed to come up with a number (like they use for alcohol) at which point a presumption of impairment would attach.

Most people incorrectly believe that if you blow under .08, you’re not guilty and if you blow over .08 you’re guilty of DUI. Similarly, people believe that under 5 nanograms means you’re not guilty of Driving Under the Influence of Cannabis. This is not correct. Those “limits” are merely numbers at which point the judge will “presume” impairment, whereas readings below that indicate no such presumption. So, if you’re at or above those numbers, it will be much more difficult to win your case, whereas numbers below give you a much better chance at success. But each person’s metabolism is different, so one smoker may be highly impaired at 1 nanogram while we suspect that Snoop Dogg or Willie Nelson may be very functional at 10 nanograms. In other words, it’s still possible to lose a DUI Cannabis case which showed 1 nanogram in your system yet win a case with 10 nanograms. The same is true for alcohol. It’s just not as simple as most people would believe.

Ma’am, Have You Been Smoking Weed Today?

If you’re a regular (or even occasional) pot smoker, chances are that you smell like marijuana, as does your car and your clothing. They don’t call it “skunk weed” for nothing and it’s not that easy to get the smell out of certain fabrics. Unless you’ve spilled a beer in your car or on your clothing, you’re probably not going to smell like alcohol the next day if you’re pulled over by the police. Unfortunately, the same may not be true about the smell of cannabis.

Big deal – who cares if I smell like weed? The police that’s who! They care very much, because the odor of marijuana is like winning the lottery for police officers! When the Chicago Police pull over a vehicle, they’re always very interested to know if you’ve got a gun or drugs. But unfortunately, they’re just not allowed to just search everyone they encounter (as much as they’d really like to). Enter the magical smell of cannabis! Jackpot!

The police don’t have to see you actually smoking. They don’t even need to see smoke. For many judges, all they typically need to justify a legal search of your vehicle or person is the odor of marijuana. Once they smell it, you can pretty much bet that you’re going to get searched along with your car. Sure, they’re supposedly searching for pot, but really, they’re hoping that they find guns, other drugs, or stolen merchandise because under the law, as long as the search is legal, anything illegal they find during the course of that search is fair game.

Speak to a Search and Seizure Lawyer Today

Since 1990, the legal team as Mitchell S. Sexner & Associates LLC has been helping people who have been the subject of overzealous police searches and seizures. Sometimes, the property seized can be suppressed in court by filing a motion, thereby preventing the State’s Attorney’s Office from using the items against the defendant during a trial. Call us at (312) 644-0444 to arrange a free consultation to discuss the facts of your particular criminal or traffic case.

Written by Mitchell S. Sexner Last Updated : January 13, 2023