Testing the Long Nose of the Law

DO CAR ODORS BELONG TO YOU?

State High Court Takes Up Unique Drug Case

SPRINGFIELD - Suppose the next time police stop your vehicle the
officer asks for your license, insurance card and then tells you to
roll up the windows and crank the fan.

Excuse me?

That very scenario is now before the Illinois Supreme Court for a
possible first-of-its kind ruling on the legality of a new drug-dog
search procedure and the limits of police powers.

The case stems from a 2006 downstate case in which an officer in Adams
County stopped Cheryl Bartelt after observing her parked illegally.
After taking the routine information and telling the driver of the
violation, the officer - who'd heard the driver was involved with
methamphetamines - instructed Bartelt to roll up her windows and turn
the fan on high.

By that time a police dog had arrived and, as the fan blew inside, the
dog sniffed outside and was alerted to contraband. A search of the
vehicle found possible methamphetamine paraphernalia and residue.
Bartelt was charged with unlawful possession.

However, her attorney successfully fought to suppress the evidence,
arguing it was illegally obtained. The case ping-ponged through the
courts and is now before the Illinois Supreme Court, which recently
heard arguments in Springfield.

The questions posed could have significant legal implications but also
sound a bit odd for the justices of the high court.

For instance, are the odors inside your vehicle yours? Is there an
expectation of privacy attached to interior aromas protecting them
from the prying eyes ... err noses ... of police outside barring
probable cause for a search?

Arden Lang, the attorney for the driver, argues the police had no
right to be inside the vehicle so officers got creative and found a
way to force the inside air out and in doing so violated the driver's
rights.

"Air is part of your home. Air is part of your car," Lang recently
told justices. "You can't say you have a privacy right in your
floorboards but not the other."

Lang argues the procedure the police employed is akin to letting the
drug dog roam inside the vehicle, something that isn't allowed without
probable cause. Court documents show the procedure in question is
being taught by the Illinois State Police.

Obviously the attorney representing the police disagrees, saying air
is coming in and going out of vehicles all the time. The meth-tainted
air inside this vehicle would have eventually come out and alerted the
dog, so the procedure and the arrest are legitimate.

"An expectation to privacy in air in the vehicle is unreasonable under
these circumstances," Katherine D. Saunders told justices during the
arguments.

For their part, justices seemed skeptical of both sides.

Chief Justice Thomas Fitzgerald noted airport luggage can be "fluffed"
to force out air for screening but there's not been a case examining
the legality of forcing ambient air out of a vehicle's interior.

"Why should this ... be authorized by this court?" Fitzgerald asked
the attorney for the police.

And Justice Ann Burke questioned why police didn't first let the dog
walk around the car.

But Justice Robert Thomas noted police are free to act on things they
see in plain sight and for this case wondered, "Is there plain smell?"

There is no immediate deadline for the justices to render an opinion
in the case.