People v. Williams ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Williams, 2013 IL App (4th) 110857
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MICHAEL R. WILLIAMS, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-11-0857
Filed June 6, 2013
Rehearing denied July 15, 2013
Held The detection of a “strong odor of cannabis” coming from the interior of
(Note: This syllabus a car legally stopped for speeding gave the arresting officer the probable
constitutes no part of cause and exigent circumstances necessary to perform a warrantless
the opinion of the court search of defendant, a passenger in the car, and defendant’s motion to
but has been prepared suppress the cannabis discovered in his shoes was properly denied, since
by the Reporter of defendant’s person was the last reasonable place the officer might find the
Decisions for the cannabis he smelled after he had searched the driver and the interior of
convenience of the the car, including containers in the car.
reader.)
Decision Under Appeal from the Circuit Court of Woodford County, No. 09-CF-148; the
Review Hon. John B. Huschen, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Michael H. Vonnahmen, all of
Appeal State Appellate Defender’s Office, of Springfield, for appellant.
Gregory A. Minger, State’s Attorney, of Eureka (Patrick Delfino, Robert
J. Biderman, and Perry L. Miller, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the
court, with opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.
OPINION
¶1 In this case, we are asked to decide whether a police officer’s detecting the “strong odor
of cannabis” emanating from the interior of a lawfully stopped vehicle provides the police
with the probable cause and exigent circumstances necessary to perform a warrantless search
of a passenger in that vehicle. We conclude that it does.
.
¶2 I. BACKGROUND
¶3 In December 2009, the State charged defendant, Michael R. Williams, with unlawful
possession of cannabis (720 ILCS 550/4(d) (West 2008)). In April 2010, defendant filed a
motion to suppress the cannabis that was the basis of that charge.
¶4 At a May 2010 hearing on defendant’s motion to suppress, the parties stipulated to the
facts, which were contained in the arresting officer’s December 2009 police report, and
argued only whether those facts justified the warrantless search of defendant as a passenger
in a lawfully detained vehicle. The following summary of facts was gleaned from that police
report.
¶5 In December 2009, Illinois State Trooper R. Slayback was running a radar speed gun at
a rest stop off Interstate 39 when he measured a Chrysler Aspen traveling 16 miles per hour
over the posted speed limit. Slayback initiated a traffic stop and found Olympia R. Cook
driving the vehicle, defendant in the front passenger seat, and the couple’s two children in
the backseat. As Cook lowered the window, Slayback “immediately detected a strong odor
of cannabis [emanating] from the vehicle.” Upon request, Cook and defendant provided
identification and explained that they were traveling to Indianapolis, Indiana, for the
holidays.
¶6 Slayback asked Cook to exit the vehicle so that he could question her outside defendant’s
presence. Cook claimed that the vehicle belonged to her cousin and that she was not
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responsible for anything inside the vehicle. Two other troopers arrived, and shortly thereafter,
Slayback asked defendant to exit the vehicle, which he did. Slayback patted down defendant
as a safety precaution. During that patdown, defendant told Slayback that he had
approximately $1,200 in cash in his front pocket. Defendant claimed that he was planning
to use the money to purchase Christmas presents when he arrived in Indianapolis. Slayback
asked defendant to remove his shoes and defendant vehemently refused, positing that
Slayback was violating his rights. Slayback thereafter handcuffed defendant and placed him
in the backseat of his squad car “for not complying with [his] request.”
¶7 The other troopers began searching the vehicle, which resulted in the recovery of “six
unknown pink pills” and a “stun gun.” The troopers thereafter arrested Cook, who, as
previously stated, had been driving the vehicle. Slayback then returned to his squad car and
removed defendant’s shoes. That search revealed 43 grams of cannabis.
¶8 On this evidence, defendant argued that Slayback lacked probable cause to search his
person based solely on the odor of cannabis emanating from the vehicle. Defendant asserted
that Slayback had probable cause to search the vehicle and Cook but lacked probable cause
to search him as a passenger. The prosecutor responded that the odor of cannabis provided
probable cause to search each person in the vehicle, arguing as follows:
“Now, [defendant] *** takes exception saying, well, a passenger is different from the
driver. And I would argue that that’s not the case. They’re both people. They either–if
you have four people in the car and you smell an odor of cannabis coming from the car,
it makes no sense that you have permission to search the driver but not the other
passengers when the cannabis can be concealed on any one of the four occupants that are
within the car.”
¶9 Following a short recess to consider the facts, arguments, and applicable case law, the
trial court denied defendant’s motion to suppress, finding that “if the driver can be searched
*** because it’s his person instead of his thing, being a purse or a container, then I don’t see
why the police officer with probable cause *** would be prohibited from likewise searching
the passenger[–]a passenger could just as easily conceal evidence of the crime as the driver.”
¶ 10 Following a June 2010 stipulated bench trial, the trial court convicted defendant of
unlawful possession of cannabis (720 ILCS 550/4(d) (West 2008)). The court later sentenced
defendant to four years and six months in prison.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 Defendant argues that the trial court erred by denying his motion to suppress because
Slayback lacked any legal justification for searching his person. Specifically, defendant
contends that the probable cause Slayback possessed to search Cook and her vehicle without
a warrant did not apply to him as the passenger. For the reasons that follow, we disagree.
¶ 14 A. The Standard for Reviewing a Motion To Suppress
¶ 15 Typically, we review a trial court’s ruling on a motion to suppress evidence under the
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two-part test adopted by the United States Supreme Court in Ornelas v. United States, 517
U.S. 690, 699 (1996). People v. Absher, 242 Ill. 2d 77, 82, 950 N.E.2d 659, 663 (2011).
Under that standard, factual findings are upheld unless they are against the manifest weight
of the evidence. People v. Hunt, 2012 IL 111089, ¶ 22, 969 N.E.2d 819. Then, when the
reviewing court assesses the established facts in relation to the issues presented and reaches
its own conclusions as to what relief, if any, should be allowed, its review is de novo. Id.
Here, the facts are not in dispute, and therefore, our review is simply de novo.
¶ 16 B. The Fourth Amendment
¶ 17 The fourth amendment to the United States Constitution protects the “right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const., amend. IV. Similarly, article I, section 6, of the Illinois Constitution
provides that the “people shall have the right to be secure in their persons, houses, papers and
other possessions against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6.
Article I, section 6, is interpreted in limited lockstep with the fourth amendment. People v.
Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d 26, 44-45 (2006). Therefore, “[a] search
conducted without a search warrant is per se unreasonable unless it is a search conducted
pursuant to consent, a search incident to arrest, or a search predicated upon probable cause
where there are exigent circumstances which make it impracticable to obtain a warrant.”
(Internal quotation marks omitted.) People v. Ferral, 397 Ill. App. 3d 697, 706, 921 N.E.2d
414, 422 (2009).
¶ 18 In this case, Slayback did not obtain a warrant to search defendant, the search was not
incident to arrest, and defendant did not consent to be searched. Thus, Slayback’s search of
defendant had to be predicated upon probable cause where exigent circumstances existed that
made it impracticable for Slayback to obtain a warrant.
¶ 19 The fourth amendment has long been interpreted to allow probable-cause-based
warrantless searches of a vehicle that is stopped on the apron of a highway, given the
exigency of that situation. See Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971)
(“ ‘exigent circumstances’ justify the warrantless search of ‘an automobile stopped on the
highway,’ *** because the car is ‘movable, the occupants are alerted, and the car’s contents
may never be found again if a warrant must be obtained.’ ‘[T]he opportunity to search is
fleeting ....’ ” (Emphasis omitted.)). Thus, the only issue to be resolved in this case is whether
the odor of cannabis emanating from the interior of Cook’s vehicle provided Slayback
probable cause to search defendant. Because defendant was a passenger in the vehicle, and
probable cause to search a vehicle does not necessarily include passengers (see United States
v. Di Re, 332 U.S. 581, 587 (1948) (a passenger’s “mere presence” in a suspected vehicle
does not necessarily deprive the passenger of the immunities from the search of his person)),
a close examination of the probable-cause-to-search standard and the case law related to
vehicle and occupant searches is warranted.
¶ 20 C. Probable Cause Generally
¶ 21 The Supreme Court of the United States recently reiterated the probable-cause-to-search
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standard, as follows:
“A police officer has probable cause to conduct a search when ‘the facts available to
[him] would “warrant a [person] of reasonable caution in the belief” ’ that contraband or
evidence of a crime is present. [Citations.] The test for probable cause is not reducible
to ‘precise definition or quantification.’ [Citation.] ‘Finely tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the
[probable-cause] decision.’ [Citation.] All we have required is the kind of ‘fair
probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’
[Citation.]” Florida v. Harris, 568 U.S. ___, ___, 133 S. Ct. 1050, 1055 (2013).
The Supreme Court added that probable cause is a “fluid concept” that turns on “the
assessment of probabilities in particular factual contexts.” (Internal quotation marks omitted.)
Harris, 568 U.S. at ___, 133 S. Ct. at 1056. With this standard in mind, we turn to a brief
history of cases involving a search of vehicles and vehicle occupants.
¶ 22 D. A Brief History of Probable Cause To Search
a Vehicle and Vehicle Occupants
¶ 23 We begin in 1948 with the Supreme Court’s decision in Di Re. In that case, the
defendant, a passenger in a lawfully stopped vehicle, argued that the probable cause to search
the vehicle did not confer an incidental right on law enforcement to search him. Di Re, 332
U.S. at 587.
¶ 24 “Reed,” a police informant, had confessed to law enforcement that he was going to buy
counterfeit gasoline rations from a man named Buttitta at a particular location in Buffalo,
New York. Di Re, 332 U.S. at 583. Police trailed Buttitta’s vehicle until it parked at the
location Reed had provided them. Id. Officers approached the vehicle and found Reed in the
backseat, holding two gasoline rations in his hand. Id. Reed told the officers that he received
the coupons from Buttitta, who was sitting in the driver’s seat of the vehicle. Id. Di Re was
in the front passenger seat next to Buttitta. Id. All three men were taken into custody and
later searched. Id. The search of Di Re revealed 100 counterfeit gasoline rations in an
envelope concealed between his shirt and underwear, and he argued that the probable cause
to search a vehicle did not confer an incidental right on law enforcement to search a
passenger. Id. at 587.
¶ 25 In concluding that the search of Di Re was unconstitutional, the Supreme Court held that
probable cause to search a vehicle did not automatically confer upon law enforcement the
probable cause required to search passengers in that vehicle. Di Re, 332 U.S. at 587. In so
holding, the Supreme Court noted as follows: “We are not convinced that a person, by mere
presence in a suspected car, loses immunities from search of his person to which he would
otherwise be entitled.” Id. Reed never implicated Di Re, and nothing, other than his presence
in the vehicle, gave law enforcement any reason to believe that he was committing or had
committed a crime. Id. at 592 (“It is admitted that at the time of the arrest the officers had no
information implicating Di Re and no information pointing to possession of any coupons,
unless his presence in the car warranted that inference.”).
¶ 26 Nearly four decades later, the Supreme Court of Illinois considered whether “the
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detection of the odor of cannabis emanating from [a] defendant’s vehicle gave the officer
probable cause to search” his vehicle. People v. Stout, 106 Ill. 2d 77, 83, 477 N.E.2d 498,
500 (1985). The supreme court said that it did, as long as the police officer who detects the
odor of cannabis is trained and experienced in such detection. Id. at 87, 477 N.E.2d at 502-
03. The supreme court also emphasized that probable cause to search a vehicle is governed
by a totality-of-circumstances analysis. Id. The supreme court concluded its holding, as
follows:
“In the case at bar, it was the duty of [law enforcement], when confronted with
circumstances which tended to indicate that criminal activity was taking place, to
investigate in order to determine whether such criminal activity in fact existed. Based on
the particular facts of this case, including the officer’s experience and training in the
detection of controlled substances, we find that probable cause existed to justify the
warrantless search.” Id.
¶ 27 Thirteen years later, this court was asked to determine whether a police officer’s
detection of the odor of burning cannabis emanating from a lawfully stopped vehicle
provided the officer with probable cause to search a passenger in the vehicle. People v. Boyd,
298 Ill. App. 3d 1118, 1127, 700 N.E.2d 444, 450 (1998). This court held that it did, noting
that the opposite result would be absurd, given that possession of a substance may be shared:
“To hold otherwise would lead to the illogical conclusion that when a trained police
officer detects the odor of a burning controlled substance emanating from a lawfully
stopped vehicle he can search only the driver and not the other occupants of the car even
though the smell was emanating from the enclosed space of the vehicle in which all
occupants were present.” (Emphasis in original.) Id.
¶ 28 In 1999, the Supreme Court of the United States revisited Di Re as part of its holding in
Wyoming v. Houghton, 526 U.S. 295, 303 (1999). In Houghton, the Supreme Court held that
a warrantless search of a passenger’s purse did not run afoul of the fourth amendment. Id.
at 307. Following a routine traffic stop, the officer noticed a hypodermic syringe in the
driver’s pocket, which the driver admitted he used to “take drugs.” Id. at 298. Writing for the
majority, Justice Scalia explained that a search of a passenger’s purse was permissible
because it was an item located “in” the vehicle and the officer had probable cause to search
for contraband “in” the vehicle. Id. at 302. Justice Scalia distinguished Houghton’s situation
from that of Di Re in that the search of Houghton’s purse was not the same as searching her
person, recognizing the “heightened protection afforded against searches of one’s person.”
Id. at 303. In short, the Supreme Court in Houghton held that when police officers have
probable cause to search a vehicle, they may “inspect [the] passengers’ belongings found in
the car that are capable of concealing the object of the search.” Id. at 307.
¶ 29 Having outlined a brief history of cases involving a search of vehicles and vehicle
occupants, we turn to the search of defendant in this case.
¶ 30 E. The Search of Defendant in This Case
¶ 31 As we stated at the beginning of this opinion, the question before us is whether a police
officer’s detecting the “strong odor of cannabis” emanating from the interior of a lawfully
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stopped vehicle provides the police with the probable cause and exigent circumstances
necessary to perform a warrantless search of a passenger in that vehicle. (We note that
defendant has never questioned whether Slayback was qualified to detect such an odor; thus,
we assume for purposes of this case that he was sufficiently trained and experienced in such
detection.)
¶ 32 Although not as numerous as cases involving probable cause based upon an individual’s
sense of sight, cases involving probable cause based upon an individual’s sense of smell can
be of the “most persuasive character” (Johnson v. United States, 333 U.S. 10, 13 (1948)),
particularly in cases involving cannabis. “This, of course, is because there are some truly
distinctive odors, while many objects commonly associated with the possession and use of
illegal substances (e.g., a green plant, a grassy substance, a handrolled cigarette, pills, a pipe,
a folded dollar bill, a plastic baggie, or a glassine envelope) may in fact be innocent.” 2
Wayne R. LaFave, Search and Seizure § 3.6(b), at 388 (5th ed. 2012).
¶ 33 Recall that in Di Re, the Supreme Court held that the search of the passenger, Di Re, was
impermissible because nothing, except the fact that Di Re was in the vehicle, implicated him
at all in any criminal activity. Thus, the search of Di Re’s person was not supported by
probable cause. Similarly, the passenger in Houghton could not be searched–although her
purse could be as part of the overall vehicle search–because nothing, except that she was in
the vehicle, implicated her at all in any criminal activity. Indeed, the specific probable cause
to search the driver arose from the officer’s having noticed a hypodermic syringe in the
driver’s pocket.
¶ 34 This case differs from Di Re and Houghton. Here, the “strong odor of cannabis”
emanating from the driver’s side window provided Slayback probable cause to search
defendant because, unlike the gasoline rations in Di Re and the hypodermic syringe in
Houghton, the odor–that is, the thing that gave the officer probable cause–included defendant
as a front-seat passenger in that vehicle. See Harris, 568 U.S. at ___, 133 S. Ct. at 1055 (“A
police officer has probable cause to conduct a search when ‘the facts available to [him]
would “warrant a [person] of reasonable caution in the belief” ’ that contraband or evidence
of a crime is present.”); see also United States v. Humphries, 372 F.3d 653, 659 (4th Cir.
2004) (“if an officer smells the odor of marijuana in circumstances where the officer can
localize its source to a person, the officer has probable cause to believe that the person has
committed or is committing the crime of possession of marijuana”). Thus, this is not a case,
like Di Re, where the police “had no information implicating” defendant (see Di Re, 332 U.S.
at 592). The “strong odor of cannabis” that Slayback detected coming from the interior of the
vehicle in which defendant was a passenger was sufficient to implicate defendant. Indeed,
when Slayback detected the odor of cannabis, he first searched Cook (the driver) and the
interior of the vehicle, including containers inside the vehicle. Having eliminated those
potential sources for the smell, Slayback’s probable cause to search defendant heightened,
given that defendant’s person was left as the last reasonable place to find the cannabis
Slayback smelled.
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¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
award the State its $50 statutory assessment against defendant as costs.
¶ 37 Affirmed.
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