People v. Rice ( 2019 )

2019 IL App (3d) 170134Opinion filed April 16, 2019
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2019
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) Bureau County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-17-0134
v. ) Circuit No. 16-CF-77
)
JEREMIAH PAIGE RICE, ) Honorable
) Cornelius J. Hollerich,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justices Carter and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Following a traffic stop, defendant Jeremiah Paige Rice was charged with one count of
unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (West 2016)
(methamphetamine possession)). He filed a motion to quash arrest and suppress evidence, which
the trial court denied. After a stipulated bench trial, the circuit court found defendant guilty and
sentenced him to 11 years in prison. He appeals the denial of his motion to suppress, arguing
that, under the recent amendment to the Cannabis Control Act (Act) (720 ILCS 550/4 (West
2016)), the odor of burnt cannabis alone is insufficient to expand the scope of a traffic stop into a
drug investigation. We affirm.
¶2 BACKGROUND
¶3 On October 9, 2016, Sergeant Michael Kasprak of the Illinois State Police stopped
defendant headed west on Interstate 80 for traveling 75 miles per hour in a 70-mile-per-hour
zone. Defendant’s car had valid plates and was registered as a rental vehicle out of New Mexico.
Kasprak smelled a strong odor of burnt cannabis when he approached the passenger side window
of defendant’s vehicle. He did not observe any weapons or drugs in plain view inside the car.
Based on the smell of cannabis, Kasprak believed that he had probable cause to search the
vehicle for drugs.
¶4 After backup arrived, Kasprak asked defendant to exit the vehicle. He escorted him to the
back of the vehicle and informed him that he was going to conduct a search of his person. In
performing the search, Kasprak located a bulge in defendant’s right pants pocket, which he
believed to be contraband. He pulled out a plastic bag of a leafy substance that looked like
cannabis. Defendant was placed under arrest, and a search of his vehicle revealed 1300 pills
containing methamphetamine.
¶5 Defendant filed a motion to quash the arrest and suppress evidence. He argued that since
possession of less than 10 grams of cannabis was no longer a criminal offense under section 4 of
the Act, Kasprak did not have probable cause to search defendant’s vehicle based on the smell of
burnt cannabis alone.
¶6 At the suppression hearing, Kasprak testified that he had been employed with the Illinois
State Police for 10 years. He received drug interdiction training, and it was part of his daily job
to address drug-related activity in the area. Kasprak testified that he was aware of the 2016
change in Illinois law as it related to possession of cannabis. He noted that the law had changed
for amounts of 10 grams or less and that the offense could be resolved by paying a fine.
2
¶7 On October 9, 2016, he observed defendant in a gray Chevrolet traveling west at a speed
in excess of the posted speed limit. When he stopped defendant, he noticed the driver of the
vehicle had rolled his window down and was showing his hands. Kasprak took the gesture to
mean that defendant did not have any weapons. He approached the vehicle from the passenger
side. He noticed defendant sitting in the driver’s seat and detected a strong odor of burnt
cannabis emitting from inside the vehicle. Kasprak did not observe any weapons, drugs, or drug
paraphernalia at defendant’s disposal.
¶8 Defendant provided his identification and rental agreement for the vehicle. Defendant
was cooperative and handled himself in a calm and collected manner. Kasprak took defendant’s
documents and returned to his squad car. After running a background check, he reported that
defendant’s driver’s license was valid. He then decided to run defendant’s criminal history.
During the background search, Kasprak learned that defendant had prior arrests for possession of
a controlled substance and other nondrug-related matters. Defendant’s prior arrests did not cause
Kasprak to fear for his safety.
¶9 Kasprak called for backup because he planned to execute a search of the vehicle. Kasprak
testified that he believed probable cause was established the moment he smelled cannabis:
“Q. So when did you make the determination that you had probable cause to
search the vehicle.
A. When I approached the vehicle and detected the odor of burnt cannabis.”
Kasprak explained that based on his training and experience he was certain he smelled burnt
cannabis and not raw cannabis.
¶ 10 After backup arrived, Kasprak asked defendant to step out of the vehicle. Defendant
complied and walked with Kasprak to the back of the car. Kasprak then informed defendant that
3
he was going to conduct a search of his person. Kasprak told him he was going to pat him down
for weapons and for a probable-cause search based on the odor of cannabis. In performing the
search, Kasprak recovered a small plastic bag containing what he believed to be cannabis.
Kasprak placed defendant in handcuffs and put him in the squad car.
¶ 11 Officers searched defendant’s vehicle and found two sealed envelopes containing
$37,000 in U.S. currency. During a second search of the vehicle at the police station,
investigators recovered a small shoe care kit. A plastic bag inside the shoe care kit contained
1300 multicolored pills that tested positive for methamphetamine.
¶ 12 The trial court viewed Kasprak’s dashboard camera video. The court noted that defendant
was cooperative and appeared calm. The stop lasted approximately 11 minutes from the moment
Kasprak turned on his emergency lights to the time he ordered defendant out of the car. The
court held that the delay was not unreasonable and that Kasprak had probable cause to believe
that the defendant had violated the Illinois Vehicle Code by speeding. See 625 ILCS 5/11-601
(West 2016). The court then emphasized that the issue was whether “an officer [could] form
probable cause to believe a crime has been committed in possessing cannabis based solely on the
smell of burnt cannabis without some further evidence as to the weight of the cannabis” given
the change in the law. The trial court concluded that Kasprak had probable cause to search
defendant’s vehicle and denied his motion to suppress, stating:
“[I]t appears to the court that it’s still good law that smelling the odor of burnt cannabis
gives the officer probable cause to search the vehicle, whether he finds five grams of
cannabis or five tons of cannabis.”
¶ 13 Following a stipulated bench trial, defendant renewed his argument in a motion to
reconsider, which the trial court denied.
4
¶ 14 ANALYSIS
¶ 15 On appeal, defendant contends that the trial court erred in denying his motion to suppress.
He argues that in light of the recent amendment to section 4 of the Act, the smell of burnt
cannabis alone no longer provides a reasonable belief that a crime has occurred sufficient to
support probable cause.
¶ 16 In reviewing a circuit court’s decision on a motion to suppress evidence, we employ a
two-part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We grant great
deference to the court’s findings of fact and will disturb those findings only if they are against
the manifest weight of the evidence. Id. However, we review the trial court’s ultimate legal
ruling on the suppression motion de novo. Id.¶ 17 Because a traffic stop is more analogous to an investigative stop as defined in Terry v.
Ohio, 392 U.S. 1 (1968), courts generally apply the Terry principles when faced with a challenge
to the reasonableness of a traffic stop. People v. Jones, 215 Ill. 2d 261, 270 (2005). In this case,
there is no question that Kasprak had probable cause to stop defendant’s vehicle for speeding.
See 625 ILCS 5/11-601 (West 2016). Without more, though, an officer lacks the authority to
conduct a search of the vehicle or its occupants. Jones, 215 Ill. 2d at 271.
¶ 18 Under the automobile exception, police officers may search a vehicle without a warrant
where probable cause exists to believe the vehicle contains evidence of criminal activity subject
to seizure. People v. James, 163 Ill. 2d 302, 312 (1994). Probable cause means that there is a
reasonable ground for belief of guilt and that the belief of guilt must be particularized with
respect to the person to be searched or seized. Maryland v. Pringle, 540 U.S. 366, 371 (2003). In
determining whether probable cause exists, a law enforcement officer may rely on training and
experience to draw inferences and make certain deductions. Ornelas v. United States, 517 U.S.
5690, 700 (1996). Probable cause exists when the facts known to the arresting officer at the time
are sufficient to lead a reasonable person to believe that the defendant is engaged in criminal
activity. Jones, 215 Ill. 2d at 273-74.
¶ 19 It is well established that the distinctive odor of cannabis can be persuasive evidence of
criminal activity. See People v. Stout, 106 Ill. 2d 77, 87 (1985). In Stout, our supreme court held
that when an officer detects an odor of a controlled substance, the officer has probable cause to
conduct a search of a vehicle if testimony has been elicited that the officer has training and
experience in the detection of controlled substances. Id. Since then, Illinois courts have
repeatedly recognized that the smell of burnt cannabis emanating from a vehicle will provide
officers familiar with and trained in the detection of controlled substances with probable cause to
search a vehicle. See id.; People v. Weaver, 2013 IL App (3d) 130054, ¶ 32. This principle has
been extended to include searches of the driver and any passengers. People v. Zayed, 2016 IL
App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Strong,
215 Ill. App. 3d 484, 489-90 (1991).
¶ 20 Respondent acknowledges the holding in Stout. Yet he maintains that the odor of
cannabis can no longer serve as a ground for probable cause or reasonable suspicion of criminal
activity in light of the recent amendment to the Act decriminalizing the possession of small
amounts of cannabis. See Pub. Act 99-697, §40 (eff. July 29, 2016) (decriminalizing the
possession of not more than 10 grams of cannabis by categorizing it as a “civil law violation”
punishable by a fine ranging from $100 to $200). In support of his argument, he cites
Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011).
¶ 21 In Cruz, the Massachusetts Supreme Judicial Court found that the mere odor of marijuana
no longer provided law enforcement officers with reasonable suspicion of criminal activity
6
following the passage of a referendum decriminalizing possession of one ounce or less of
marijuana. Id. at 910. The court found that by voting in favor of the referendum, “the voters
intended to treat offenders who possess one ounce or less of marijuana differently from
perpetrators of drug crimes.” Id. As a result, the court concluded that the odor of burnt cannabis
alone could not provide reasonable suspicion of criminal activity. Id.; see also Commonwealth v.
Rodriguez, 37 N.E.3d 611, 614 (Mass. 2015) (because possession of one ounce or less of
marijuana had been decriminalized by referendum, odor of burnt marijuana alone did not create
probable cause to justify search).
¶ 22 Only New York has followed Cruz. See People v. Brukner, 25 N.Y.S.3d 559, 572 (City
Ct. 2015) (concluding that “the mere odor of mari[j]uana emanating from a pedestrian, without
more, does not create reasonable suspicion that a crime has occurred” following state
legislature’s decriminalization of possession of less than 25 grams of marijuana).
¶ 23 The majority of jurisdictions, however, have reached the opposite conclusion. Those
courts have found that decriminalization is not synonymous with legalization and that the odor of
cannabis remains indicative of criminal activity despite the passage of statutes decriminalizing
the possession of small amounts of marijuana. See In re O.S., 2018 IL App (1st) 171765, ¶ 28
(citing Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland statute
decriminalizing, but not legalizing, the possession of less than 10 grams of cannabis did not alter
existing search and seizure law in that state)); People v. Zuniga, 2016 CO 52, ¶ 23 (odor of
cannabis still relevant to probable cause determination and can support an inference of criminal
activity even though possession of one ounce or less of cannabis was allowed under new
Colorado law); State v. Senna, 2013 VT 67, ¶ 16, 194 Vt. 283, 79 A.3d 45 (passage of Vermont
medical marijuana law did “not undermine the significance of the smell of marijuana as an
7
indicator of criminal activity”); State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (odor of cannabis
provided officers with reasonable belief of probability of criminal activity even though Arizona
legislature recently passed medical marijuana statute).
¶ 24 Although defendant contends that Illinois has decriminalized small quantities of
cannabis, marijuana possession remains unlawful under the Act. Section 4, as amended, states
that “[i]t is unlawful for any person knowingly to possess cannabis.” 720 ILCS 550/4 (West
2016). As noted in In re O.S., “decriminalization is not synonymous with legalization.” In re
O.S., 2018 IL App (1st) 171765, ¶ 29. Under Illinois law, the knowing possession of cannabis is
still a criminal offense and possession of more than 10 grams remains an unlawful act subject to
criminal penalties. Id.¶ 25 Here, the officers searched defendant’s vehicle because Kasprak detected the odor of
cannabis. As we have stated, the odor of cannabis as indicative of criminal activity remains
viable notwithstanding the legislature’s decriminalization of the possession of a small amount of
marijuana. Once Kasprak identified the odor of burnt cannabis, probable cause for the search
existed. Thus, the trial court properly concluded that the search was justified and denied
defendant’s motion to suppress.
¶ 26 CONCLUSION
¶ 27 The judgment of the circuit court of Bureau County is affirmed.
¶ 28 Affirmed.
8