Navigating Possession Laws: Guns and Contraband with David Drwencke

Episode 2 Transcript

Sam Heninger:
Welcome to Defending the Windy City with David Drewicki. In today's episode, we delve into Illinois's complex landscape of gun laws and contraband possession. Drawing from his experience as a criminal defense attorney, David will share insights into common misconceptions and mistakes people make regarding possession laws and offer strategies for safeguarding their rights in such circumstances. I'm Sam Henninger, and I'm excited to interview David Drewicki. Thanks, David, for coming on.

David Drewecke:
Thanks for having me again, Sam. Please start by providing an overview of Illinois's current laws and regulations regarding guns and contraband possession.

David Drewecke:
Sure. The easy way of thinking about this in Illinois is that if you are not a FOID, a firearm identification owner, or a CCL, the concealed license carrier, you should not be driving around with a gun. That's kind of the short and easy part of it. The part that I think confuses a lot of people is that in Illinois, recreational marijuana or cannabis is legal for use and even possession. But if you get into the laws, you get into the nitty gritty of under what circumstances and how much and how you can transport that marijuana or cannabis. A lot of people find themselves getting into trouble with that as well. And, of course, there are other types of contraband; if we're talking about methamphetamines or other types of drugs, those are just outright illegal. So don't possess those or drive around with them because that's just outright illegal in and of itself.

When it comes to cannabis, again, because that's where we run into a lot of issues, is that it needs to be in a sealed compartment, odorless, in a perfect world, not even have access to that. So have it in your trunk. Have it somewhere you can't immediately reach over and grab it. Otherwise, that can be a possession charge. That can be the basis for searching for the rest of your car. And we'll undoubtedly dive more into that. But the most critical portion of this is that if it's an illegal substance that you're not supposed to have, carrying it around in your purse or your car can lead to a possession charge. That ranges from very simple misdemeanors to the most severe felonies, partly depending on what that contraband is, how much of that contraband you have, and what your criminal background looks like. These are a lot of the factors that go into it. But the simple part is, if you're not supposed to have it, don't carry it and don't have it in your car. If you're allowed to have it, you have a CCL, or you have cannabis, pay very close attention to the laws as to how that's supposed to be transported in what kind of container and in what portion of your car.

Again, when it comes to a gun you don't have access to, unloaded in a sealed container, like a lockbox, the advice would be to put it in the trunk. When it comes to being on your person, if you don't have a FOID or CCL, don't have that on your person. And when it comes to cannabis, again, be mindful of odorless, sealed containers; it's probably best that you don't have immediate access to it, have it in the trunk or something like that.

Sam Heninger:
There are many caveats. What are an individual's rights regarding firearm possession or other illegal items under Illinois law?

David Drewecke:
Tricky. There are a lot of caveats because there are some exceptions where you absolutely can have a gun, and you absolutely can carry cannabis or prescription drugs, things like that, where it's legal for you to possess them. You can have them on your person or in your pocket, whether it's a gun in a holster or on your person. But then you're getting really into the nitty gritty again. But the foundational point is, do you have that firearm identification card? Yes. The state said you can possess that gun. Having the CCL or the concealed carry license opens up where and under what circumstances you can carry that gun. Just because you have a FOID doesn't mean you can take the weapon everywhere and under all circumstances.

Cannabis, again, is the one kind of recreational drug that most people have familiarity with. Again, it is legal in specific amounts and under certain conditions; in this odorless sealed container, you're not supposed to have a blunt or a joint in your pocket. You're not supposed to be carrying around in a baggie. Those are inappropriate forms. So it's getting into the rural specifics of those laws, but know that you have to have the appropriate card from the state regarding guns. And then, as it relates to cannabis, it's usually the form you're going to buy it from an actual dispensary, a legitimate I don't want to use the word dealer, but a dispensary or somebody who's selling it legitimately, not somebody on the corner of the street or a friend or anything like that, they will undoubtedly be in a legal form. But you'll notice, again, they're odorless, sealed, and in another bag, sealed within a bag. And they, the dispensary, will likely tell you, don't open this until you get home. Don't just leave this to the center council. Put this in your trunk or the back seat so you don't have immediate access, and you're not giving the officers a reason to want to search your car or you. Some of the best advice I can give is to make sure you're doing things appropriately, and when in doubt, simply don't do it because the consequences can be genuine.

Sam Heninger:
Okay, I appreciate that. I'm getting a good sense of the state law there, but I'm also interested in learning more about constitutional rights, particularly the Fifth Amendment, and how that relates to individuals who may be suspected of possessing illegal items or participating in criminal activities. So, how does that play into things?

David Drewecke:
Of the cases I handle as a criminal defense attorney here in Chicago, possession charges are among the most common. And what that usually takes the form of, it's one of two types of possession. There's actual possession. That's where you have it literally on your person. It's in your pocket. It's in your waistband. It's in your hand. You have that. It's actual possession. Then there's more of a legalese version of constructive possession. Where you do not have the gun or the drugs in your purse. You don't have them in your pocket. They're not in your hand, but they're near you. They're underneath your seat in a car. They're in a book bag next to you or maybe on your back, and an officer saw you take it off and drop it.

So it's not literally on your purse; you're not possessing it; it's constructive possession. So, we treat it as if you possessed it by circumstantial evidence. Did you have access to it? Was it within an arm's reach? Can you control that item or location? Did you know that it was there? That's usually one of the biggest questions: did the person even know it was there? And then, of course, the circumstantial evidence that a case can be built on are statements. That's where the Fifth Amendment comes in, and you have certain rights when you are arrested and interrogated by the police.

And this is a common misconception that I run into almost daily, where a potential client or a client will ask, hey, no one read me my rights. Does the case get dismissed? You know, what's going on? Why is this case going on? No one read me my rights. The simplest way to describe Miranda or the Fifth Amendment, your right against self-incrimination or saying things that will hurt you, is twofold. Are you under arrest? And the way of viewing that is, am I free to leave? And you can ask that question to the officer. If your hands are behind your back, you're handcuffed, you're in the back of a squad car, it's a good bet you've at least been detained, and you're probably under arrest.

The second component is whether you are being interrogated. Somebody just, an officer asking your biographical information, what's your name? Provide me with your ID. That's not self-incriminating. You're just; the officer has a right to know that information, especially if you're driving; you should have a valid driver's license and insurance, among other things. You have to turn that over. Now, if they're going to start asking different questions that are beyond those biological things, especially if you're in custody, then you need to be provided your Miranda rights.

I think the next component to that, without getting in the weeds, is that sometimes you're not under arrest. You're behind the wheel of your car, you've been stopped on the street, and the officers are asking you questions where you're not under arrest. But now they're asking you more than your name or, hey, where are you headed? Where are you coming from? Basic kinds of questions. They're asking, hey, is that your bag? Is that your car? Is there any contraband in the car? Did you know a gun was in the back seat or the trunk? Things of that nature. And twofold, A, you don't have to answer those questions. Those aren't required. And B, answering those questions will likely be the foundation of how the state builds a case against you by making admissions and statements that we can't unpack later. And that sinks the entire battleship.

Sam Heninger:
What other misconceptions or mistakes do people make regarding possession laws, and how can they protect their rights in those situations?

David Drewecke:
Some of the best advice I can provide is because there are plenty of misconceptions, but one of the others specifically is when you're a car driver. You get pulled over, and the officer even tells you it's for a minor traffic violation. You did a rolling stop. You didn't signal appropriately. You changed lanes. Again, there are many ways that you could be pulled over, but many clients don't believe that an officer can ask them out of the car. Illinois law says that they can. They can ask you out of the car for officer safety.

Then, the officer can view the vehicle; they can look inside the car; they aren't supposed to be searching, but it's called it's the plain view doctrine if they can see it with their own eyes without actually having to go into the car, they don't have to pretend like they didn't see it. So if they see a baggie that looks like it might be drugs or they see the butt of a gun. They don't have to have a warrant for that. They're seeing it in plain view. They can just see that.

The other bit relates to this misconception of being unable to be asked out of the car or at least some basic biographical questions. The advice is, even if you know or believe that the officer is wrong, that they told you you ran a red light and you didn't, the argument isn't going to be won there on the scene. You know, if we need to work through the system, that's why you hire me. You hire a criminal defense attorney because we'll unpack that. We'll go and check the pod, security, dash, and body cameras that the officers may have on, but getting belligerent or argumentative with the officer right then will only make the situation worse. It never makes it better. You're more likely to get the adrenaline pumping, be angry, and say something you will regret because now you're in your emotions and angry about the situation.

And then the fact is that if we ever have to negotiate on something, officers will remember harmful interactions they've had with people, just like they'll remember if it was perfect. I've had that happen where the officer comes back, and we're negotiating a resolution. The officer's like, he was a nice guy. He was pleasant. I didn't have any problem with him. Work out however you want to work it out.

Meanwhile, the alternative would be, man, he gave me a hard time. He was swearing at me. He wouldn't give me his identification. He started getting violent. He wouldn't put his arms behind his back. He was kicking things. It was whatever. Beyond the fact that you might pick up other criminal charges, the officer will remember that, and their input is often part of a negotiated plea. So the advice is, even if you know you're right or suspect you're right, that's not the time you'll succeed. So, be as professional as you can be. Be pleasant. Answer what you have to answer. Don't answer what you don't have to answer. And we'll fight this out when it's appropriate in court.

Sam Heninger:
Say more about how your perspective as a criminal defense attorney has really colored your perspective on these types of cases of firearm or contraband possession.

David Drewecke:
There are countless examples because, again, there are so many of these cases that I run into between either drug possession or gun possession where what a potential client or the client makes admissions to either builds the case and makes the defense possible or eliminates the case. And I mean that you're driving your car, you get pulled over, and the officer comes up, maybe with a legitimate reason. And again, we'll unpack that at a later date. They search the car, and they find something. And then my client, again scared or nervous or whatever it may be, started to come up with an explanation. Oh yeah, that was my brother's; he left it there.

Well, here's the problem: you think you're talking yourself out of the situation, but you just admitted that you knew that the drug or gun was there and then you had access to it for possession purposes; the case is done unless we can challenge the SOP or the search in some other technical way. But factually speaking, based on the evidence that would be presented to a judge or a jury, it's done. It's another example of you didn't have to say anything. You weren't under arrest. So Miranda doesn't apply. You were just volunteering, volunteering information that you didn't need to do.

So there are plenty of examples where you feel that the moment you get caught, you want to talk yourself out of it or that you'll be able to. And you make admissions about, yeah, that is my bag in the back of the seat. Then, they find a gun next to the bag. Well, we know it's your bag now. So constructively, now this gun must be yours, or at least they will argue it is. You make an admission about what you know is in the car or not in the vehicle. You don't have to answer that question. If they, being the police officers, find a weapon or contraband, we'll figure out later whether you knew it was there. But if you make an admission, the case is primarily done unless we can find a legal technicality to win on, which would be a Fourth Amendment issue. It is not likely to be a Fifth Amendment, but did they have probable cause to stop you or your vehicle? And did they have probable cause to do that search? And that's a shallow threshold.

So, trying to win on a legal technicality is difficult. So don't answer questions that you don't have to answer. I can't implore potential clients to avoid doing that as much as possible beyond being pleasant with the officer during the stop. Because, again, there'll be another day to unpack this.

Sam Heninger:
Words coming up in your explanations are: leave space for unpacking as much as possible later.

David Drewecke:
It's 100% true. That is exactly right. This is true in all kinds of cases, not necessarily contraband and firearms. You've committed to a story before knowing the evidence the state or police have. When you don't answer a question other than the basics that you're required to, if you don't answer questions, or if you don't provide a statement, we have the benefit of sitting back. And the metaphor that I like to use with clients is like playing cards. That once we're in litigation, the state must turn over their hand. They have to show me their hand of cards. How strong of a case do they have? Do they have a video? Do they have eyewitnesses? Do they have physical evidence like DNA and fingerprints, or what do you have? What do they have?

Sometimes, the answer is not much, but boy, oh boy, my client said something they really should not have, and now our hands are tied because we're committed to that. Had they not made the statement or committed themselves to a version of the facts or a story, we could have been more creative and worked through with an explanation that satisfies why the state has this evidence.

It goes back to a foundational point other than what you are effectively required to answer, which are those essential biographical bits and providing your license or identification. You don't have to answer pretty much everything else, or you can ask for an attorney or just refuse to answer in its entirety without an attorney.

Sam Heninger:
In Illinois, have any unique cases set up the law as it is now?

David Drewecke:
There are a few. One of the biggest ones that we run into is defense attorneys who relate to guns and contraband. Go specifically to the smell of cannabis. There are some settled case laws, but now, some new things are working their way through the Court of Appeals, and I think they will eventually find their way to the Illinois Supreme Court. But what I mean by that is with the smell of cannabis, an officer stops you again for something simple. Stoplight, you were speeding, or whatever it may be, they're just going to issue a ticket. At least that's their thought: they're approaching your vehicle. You roll down the window, doing everything you should, including your license and registration. You're not volunteering any information, but the officer says that he can smell burnt or fresh cannabis. That in and of itself, under Illinois laws it stands right now, is enough for them to search you and your car.

I don't love that bit of case law right now because I think it's a little open-ended, and kind of disproving whether somebody did or did not smell cannabis is effectively impossible. Some cases are working through that now that cannabis is and has been legal for recreational purposes, why is the smell of cannabis in and of itself enough to search a car when particular possession of cannabis and the actual smoking and use of cannabis is legal? It'd be like smelling a cigarette. Cigarettes are legal; at least if you're over 18, you can buy, possess, and use them. So why would smelling a cigarette give rise to a search of your purse in your vehicle?

I think that's where some of the logic is going. But right now, if your car or you smell like cannabis, the officer can search you or your vehicle. So, where does the advice come from? Don't smoke cannabis and drive beyond the fact that you might be under the influence. You're also inviting a search of your person or your car. Make sure your car is clean and de-scented. Have things in your vehicle that eliminate that smell because it is intense, strong, and noticeable. So if you've been smoking, don't drive, change your clothes, and make sure your car is clean because, again, that's the basis of searching your car, and that's when officers find guns or other contraband. So, if you're trying to avoid that, don't smell like cannabis; don't have fresh cannabis in your car.

Sam Heninger:
Let me push on that a bit, David. I appreciate that as a caution, but let me ask you, are there actual cases coming up just off the whiff of marijuana?

David Drewecke:
There are some split decisions in this. That's why it's not quite the law of the land in Illinois. But some cases come back that if that's all the officer has; they've stopped you for speeding, they approach your car, they smell burnt cannabis. If that's it, and if that's the only thing they have, that is no longer sufficient to search your car. Now, again, that's not the ultimate law of the land, unfortunately. Do I think that that's probably where things are heading over the next few years? Probably. You know, again, with cannabis being legal, the recreational use of cannabis being legal, The comparison, again, I think is apt as cigarettes, where, again, you're allowed to smoke that, you can smell like cigarettes. No one's going to search your car.

But right now, yeah, the smell of burnt or fresh cannabis can be the basis to ask you out of the vehicle to search your car for other contraband. And even though they smell cannabis and they don't find any, but they find the gun, now we have a gun possession case that we're going to be working through.

Sam Heninger:
What other advice or critical factors would you offer for people to consider when considering their rights and legal options with these possession cases?

David Drewecke:
Sure. Beyond that, I will always advise people not to break the law. The foundational point is a lawyer and a member of the bar. That's a starting point. If you don't have a FOID or CCL, don't possess that gun. There are genuine and serious, serious consequences, especially in Illinois and in Cook County, for gun possession that just doesn't do that as a foundational point.

When it relates to anything that's not cannabis or something legal, as far as drugs are concerned, the same idea, you know, just don't do it. Now, for those who have or are dealing with those types of situations or may deal with that situation in the future, yeah, the foundational best practices are don't answer questions that you don't have to answer, be polite, be pleasant at the scene because that's going to pay dividends in the long run and not invite future issues. The more you fight, the more the officers are going to get unhappy and then think that you have something to hide. But just enact your rights to answer just the basic questions. Here's my license. Here's my insurance, my name, that's all there is, and I'm not going to answer any other questions because I don't have to and I'm not legally obligated to; it will go a long way.

And then, of course, I need to understand the basics of actual and constructive possession. If you're going to have a gun, the worst thing you can do is have it in your waistband and be walking around and driving around with it if you're not legally allowed to do so. How do you try to soften that situation? Have it in the trunk. If you carry things around, have that off your person. You know, certainly don't admit to having knowledge that it's there. Among other things, it goes back to not answering questions you don't have to. And then, ultimately, the attorney will know the latest lay of the land. You know, have things changed recently as it relates to cannabis being the basis of a smell of cannabis to be a search? Your attorney is going to know that. The actual elements of a constructive possession case are what your attorney will know, and you can look at those facts to present the best defense for you. These types of cases can be won in a speedy trial. If my clients do themselves a lot of favors by not answering questions, not admitting to things, and not volunteering information, it goes a long way. That's the best advice I can give.

Sam Heninger:
I've learned so much personally just from this. So David, I want to thank you again for lending your expert eye and letting everybody know just what their rights are, what they should be doing when they are in these types of situations, and how they could best be served by an attorney such as you. It was my pleasure. Thanks for watching Defending the Windy City with David Drewicki. I'm Sam Henninger. Like and subscribe.