People v. Mallery

228 N.E.3d 856

2023 IL App (4th) 220528

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Amy J. MALLERY, Defendant-Appellee.

NO. 4-22-0528

Appellate Court of Illinois, Fourth District.

Filed April 25, 2023

Appeal from the Circuit Court of Henry County, No. 21CF266, Honorable Terence M. Patton, Judge Presiding.

Catherine L. Runty, State’s Attorney, of Cambridge (Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Matthew Paulson, of Paulson, Vandersnick & Bradfield Law, of Rock Island, for appellee.

OPINION

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Following a traffic stop and vehicle search, the State charged defendant, Amy J. Mallery, with possession of methamphetamine (720 ILCS 646/60(a), (b)(1) (West 2020)). Defendant filed a motion to suppress the evidence against her based on a lack of probable cause for the vehicle search. The trial court granted the motion and the State appeals. We reverse and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 In January 2021, Kewanee police officer Eric Peed conducted a traffic stop of a vehicle being driven by defendant. During the stop, Peed used his police canine to perform a free-air sniff of the vehicle. The canine had a positive alert, and Peed searched the vehicle. In July 2021, the State charged defendant with possession of less than five grams of methamphetamine (id.) based upon the results of that search.

¶ 4 In April 2022, defendant filed a motion to suppress evidence, arguing the vehicle search was unlawful because it was conducted without probable cause. Specifically, she asserted that because Peed’s canine was trained to alert to the odor of cannabis and cannabis is now a legal substance in Illinois, its odor alone is not indicative of unlawful activity. Defendant maintained a police canine that is trained to detect a legal substance is "unreliable" and, thus, its positive alert cannot provide probable cause for a search. Further, defendant argued that cannabis should now be treated similarly to alcohol, asserting that probable cause for a vehicle search may not be based solely upon an officer’s detection of the smell of alcohol.

¶ 5 In May 2022, the State filed a written response to defendant’s motion. It argued the "reliability" of Peed’s canine was established because the canine "satisfactorily completed a certification and training program by an accredited training facility." The State also pointed out that Illinois Supreme Court case authority has held that probable cause for a vehicle search exists based upon the odor of cannabis alone and that such case authority has not been revised or overruled. Further, it argued that cannabis is not legal in all circumstances. The State asserted that in Illinois, a person "can only lawfully possess certain amounts of cannabis under limited circumstances" and that cannabis may not be possessed in a motor vehicle unless it is in an "odor-proof’ container.

¶ 6 On May 26, 2022, the trial court conducted a hearing on defendant’s motion. Officer Peed was the only witness to testify at the hearing. He stated that one of his responsibilities as a police officer was to conduct free-air sniffs with a police canine named Rosco. According to Peed, Rosco was trained to detect five substances—cocaine, crack cocaine, heroin, methamphetamine, and cannabis. Rosco’s alerts were the same for each individual substance and Peed acknowledged that Rosco "could indicate to residual odors" from the five substances when they were no longer present at the location being searched.

¶ 7 In January 2021, Peed conducted the underlying traffic stop after observing the vehicle at issue with a broken taillight and failing to signal at an intersection. The vehicle had three occupants, and defendant was its driver. During the stop, Peed decided to conduct a free-air sniff with Rosco because he "had previous knowledge of the defendant and the other occupants of the vehicle and drug use." Rosco had a positive alert on the vehicle at the location of the passenger’s side front door. Because Rosco alerted, Peed searched the vehicle. During the search, he located a bag at defendant’s feet, which contained "a green, metal pipe, that’s typically used to smoke cannabis with some burnt residue in the end of it, a digital scale, and two metal spoons that had a white residue on top of them." The white residue was determined to be methamphetamine, but the substance in the metal pipe was never tested.

¶ 8 Peed testified he received Rosco in October 2015, and they "trained through January 2016." He stated Rosco was certified by an accredited training facility and since January 2016, their training was maintained on a monthly basis. The monthly training involved meeting with other canine handlers at different locations and hiding narcotic substances along with "distracting odors." Peed stated the dogs would then be "taken through those areas to confirm that they [were] alerting to the narcotics and not" the other odors. Peed also conducted his own research to "stay on top of the law." He testified that to lawfully transport cannabis in a motor vehicle, the cannabis must be "inside of a sealed tamper-evident, odor-proof container."

¶ 9 Despite changes in the law regarding cannabis, there had not been changes with respect to Rosco’s training. Peed testified the cannabis used for training was packaged the same way it had been since he began training with Rosco in 2015, and Rosco’s training did not involve the use of any odor-proof containers. Peed stated he was familiar with "sealed containers that come from a dispensary that are supposed to be odor-proof." He noted that he had located such containers "on traffic stops where Rosco ha[d] been deployed." However, during such stops, "open cannabis" was also always present. Peed stated there had never been an occasion when Rosco alerted on a vehicle and the only thing "found was a sealed, odor-proof container" with cannabis. Additionally, Peed testified that, from his training, he had experience encountering the odor of cannabis, including raw or burnt cannabis. When interacting "with the vehicle" at issue during the underlying traffic stop, he did not smell the odor of cannabis.

¶ 10 Following Peed’s testimony, the parties presented arguments to the trial court that were consistent with their written filings. Ultimately, the court granted defendant’s motion to suppress. In setting forth its decision, the court found the artic- ulated basis for finding that a canine’s positive alert is probable cause for a search has been that such an alert "only-reveals contraband, it’s only revealing things that are illegal to have under any circumstances." It concluded that cannabis no longer fit into such a category because "cannabis is not always contraband." The court analogized the use of a cannabisdetecting canine to the use of a thermal imaging camera, which it noted had been "ruled unconstitutional, because it reveals things other than illegal activity." It held as follows:

"So under the reasoning behind the case law that’s saying that it’s probable cause, since the dogs now, through no fault of their own, can detect innocent activity, I don’t see how that’s distinguishable from a thermal imaging camera. So I'm going to find that under the case law that defendant has met their burden of proof and that it’s not probable cause for a search, since it was based solely on the [canine] search."

¶ 11 Shortly after the trial court granted defendant’s motion to suppress, the State filed a certificate of impairment, asserting the court’s grant of defendant’s motion to suppress substantially impaired its ability to prosecute the case.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the State challenges the trial court’s grant of defendant’s motion to suppress evidence. It argues defendant failed to meet her burden for the suppression of evidence and the court’s determination was based on an erroneous application of Illinois law. The State maintains that a positive alert by a police canine is sufficient probable cause for a warrantless vehicle search. It contends case authority supporting that proposition remains good law despite recent changes to the laws regarding cannabis. Further, the State points out that although cannabis may be legal to possess in some instances, its possession and use remains prohibited in others. In particular, the State notes provisions of the Illinois Vehicle Code, which require cannabis to be inside "a sealed, odor-proof, and child-resistant" container when inside a motor vehicle. 625 ILCS 5/11-502.1, 11-502.15 (West 2020).

¶ 15 Defendant responds by arguing that recent changes to the law, including the passage of the Cannabis Regulation and Tax Act (Pub. Act 101-27 (eff. June 25, 2019) (adding 410 ILCS 705/1-1 et seq.)), have made the possession and use of cannabis "explicitly legal" and, thus, no longer contraband. She contends that "[c]hanging the status of cannabis from always illegal to explicitly legal and sometimes illegal based on the circumstances" must "necessarily change[ ] the treatment of the odor of cannabis alone" with respect to the probable cause analysis. Defendant asserts that because a canine trained to detect the odor of cannabis could be alerting to an odor stemming from legal behavior, the odor of cannabis, alone, may not be deemed sufficient probable cause for a vehicle search.

¶ 16 A. Motions to Suppress

[1–4] ¶ 17 "When a defendant files a motion to suppress evidence, he bears the burden of proof at a hearing on that motion." People v. Brooks, 2017 IL 121413, ¶ 22, 422 Ill.Dec. 850, 104 N.E.3d 417. "A defendant must make a prima facie case that the evidence was obtained by an illegal search or seizure." Id. "A prima facie showing means that the defendant has the primary responsibility for establishing the factual and legal bases for the motion to...