It was legal to carry weed in his car when he was in Washington state.
But now he was in Indiana, pulled over for a broken headlight. The cop didn't smell anything suspicious, nor did he suspect the driver of being impaired. But he did ask some questions.
And that is where the driver screwed up. It is hard in the moment. An intimidating person with a gun is interrogating you. But you have got to stay calm and say in the most polite possible way that you will be exercising your right to remain silent.
Try something like, "With all due respect sir, I make it a habit not answer questions without a lawyer present." The police officer may try to intimidate and bully you, but he cannot establish probable cause based on your refusal to answer his questions.
The cop asked the driver if he had any marijuana in the car. The driver said no. The cop then asked if the driver had ever had any marijuana in the car. The driver said that when he was in Washington state, he did carry marijuana in the car, which is legal there.
Even though the man was admitting only to legal behavior, the police officer used this fact to justify ordering a canine unit to the scene. The dog alerted the officers to drugs, and a search turned up a small amount of marijuana and a hallucinogen called DMT.
The man's lawyer tried to have the evidence suppressed based on the fact that the officer did not legally establish probable cause to order a canine unit. The stop extended beyond a reasonable time frame while waiting for the drug sniffer to arrive.
But the court ruled that since the driver admitted to possessing marijuana in the car in the past, it was reasonable for the officer to assume he may still possess marijuana.
The judges explained while police can ask questions about unrelated criminal activity during a traffic stop, Toschlog was under no obligation to answer the officer's questions regarding the past presence of drugs in his vehicle.
"His choice to do so and to disclose inculpatory information — i.e., that he had previously had drugs in his car — provided the officer with reasonable suspicion to believe at that point that Toschlog currently had marijuana in his vehicle," the judges said.