People v. Rowell

2021 IL App (4th) 180819

182 N.E.3d 806

450 Ill.Dec. 994

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

v.Sharrieff ROWELL, Defendant-Appellant.

NO. 4-18-0819

Appellate Court of Illinois, Fourth District.

FILED January 26, 2021

James E. Chadd, Catherine K. Hart, and Darrel F. Oman, of State Appellate Defender's Office, of Springfield, for appellant.

Randy Yedinak, State's Attorney, of Pontiac (Patrick Delfino, David J. Robinson, and James Ryan Williams, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 In February 2017, the State charged defendant, Sharrieff Rowell, with one count each of identity theft ( 720 ILCS 5/16-30(a)(3) (West 2016)), possession of incomplete card (id. § 17-42), and altered or counterfeited card (id. § 17-41(a)). The charges generally alleged that defendant possessed blank and altered debit cards and another person's social security number with the intent to use it to commit a felony.

¶ 2 In August 2018, the trial court conducted defendant's bench trial, at which Illinois State Police Trooper Timothy Price testified that he stopped defendant for driving 115 miles per hour in a 70-mile-per-hour zone on Interstate 55. Price placed defendant under arrest for speeding. Because Price smelled cannabis in defendant's vehicle, he and two other officers searched it. Their search included two bags in the vehicle's passenger compartment and its trunk. As a result of that search, the officers discovered multiple pieces of physical evidence that were used to charge defendant with the previously described crimes. The officers found no cannabis or other drugs.

¶ 3 The trial court found defendant guilty of all counts and later sentenced him to prison for concurrent terms of 2½ years, 2½ years, and 2 years.

¶ 4 Defendant appeals, arguing only that his trial attorney provided ineffective assistance of counsel because he failed to move to suppress the evidence obtained from defendant's vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the alternative, (2) even if the officers had justification to investigate the smell, they did not have justification to search the trunk and bags. We disagree and affirm the trial court.

¶ 5 I. BACKGROUND

¶ 6 Because the only matter at issue is whether defendant's counsel should have filed a motion to suppress evidence, we will discuss only the information relevant to that issue.

¶ 7 A. The Charges

¶ 8 In February 2017, the State charged defendant with one count each of identity theft (id. § 16-30(a)(3) ), possession of incomplete card (id. § 17-42), and altered or counterfeited card (id. § 17-41(a)). The charges generally alleged that defendant possessed blank and altered debit cards and another person's social security number with the intent to use it to commit a felony.

¶ 9 B. The Trial

¶ 10 In August 2018, the trial court conducted defendant's bench trial. Price testified that in February 2017, he stopped defendant for driving 115 miles per hour in a 70-mile-per-hour zone on Interstate 55. The court granted the State's motion to admit into evidence a video recording from the dashboard camera of Price's squad car that showed the stop.

¶ 11 The video showed that shortly after stopping the vehicle, Price placed defendant under arrest for speeding and Price told defendant that Price "smelled weed." Price also said he believed that "gives us probable cause to search." Two other officers arrived and searched defendant's vehicle, including the trunk and "a green bag which contained a Crown Royal bag inside of it as well as a black bag." The "green bag was located in the front seat area. *** [T]he black bag was located in the rear, behind the driver's side." From that search, the officers discovered (1) a credit card with defendant's name and a billing statement for that card and (2) inside the black bag, unaltered debit cards, blank cards, a template for making engravings on cards, and handwritten notes of names and social security numbers. The officers also found inside the trunk a Western Union debit card and two credit cards bearing defendant's name. The officers did not find any cannabis or other drugs.

¶ 12 In summary, Illinois State Police Special Agent Daniel Rossiter testified that the Western Union debit card was altered and some of the other cards did not contain a balance. The parties stipulated that (1) one of the social security numbers that the officers discovered in the vehicle belonged to a man who was not defendant and (2) an address for one of the cards belonged to a man who did not apply for the card.

¶ 13 Defendant testified in his own defense and explained that he owns businesses and a friend, who had since died, gave him the cards to help pay for business expenses. Defendant explained that all of contents of the bags belonged to that friend.

¶ 14 The trial court found defendant guilty of all counts and later sentenced him as earlier stated.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 Defendant appeals, arguing only that his trial attorney provided ineffective assistance of counsel because he failed to move to suppress the evidence obtained from defendant's vehicle. Defendant contends that (1) the odor of cannabis did not justify the search or, in the alternative, (2) even if the officers had justification to investigate the smell, they did not have justification to search the trunk and bags. We affirm the trial court.

¶ 18 We disagree with defendant's arguments because (1) the law at the time of the search clearly allowed the police to search based upon the odor of cannabis alone and (2) the trial court record provides no basis to conclude that counsel was ineffective for not filing a motion to suppress.

¶ 19 A. General Legal Principles Regarding Defendant's Claim of Ineffective Assistance of Counsel

¶ 20 1. Ineffective Assistance of Counsel

¶ 21 All defendants enjoy the constitutional right to effective assistance of counsel. U.S. Const., amends. VI, XIV ; Ill. Const. 1970, art. I, § 8. "To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant." (Internal quotation marks omitted.) People v. Williams , 2020 IL App (4th) 180554, ¶ 79, ––– Ill.Dec. ––––, ––– N.E.3d ––––. However, "[a] court will not find that defense counsel was ineffective for failing to file a meritless motion to suppress."

People v. McIntosh , 2020 IL App (5th) 170068, ¶ 54, 438 Ill.Dec. 744, 146 N.E.3d 813. "[T]he decision whether to file a motion to suppress is generally ‘a matter of trial strategy, which is entitled to great deference.’ " People v. Peck , 2017 IL App (4th) 160410, ¶ 29, 413 Ill.Dec. 883, 79 N.E.3d 232 (quoting People v. Bew , 228 Ill. 2d 122, 128, 319 Ill.Dec. 878, 886 N.E.2d 1002, 1006 (2008) ). Accordingly, this court must determine, based upon this record, whether a motion to suppress would have been meritless. To make that determination, we must decide whether the police had probable cause to search defendant's vehicle.

¶ 22 2. Search and Seizure

¶ 23 All persons enjoy the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6. A police officer may conduct a warrantless search of a stopped vehicle if the officer has probable cause to believe that the vehicle contains contraband. United States v. Ross , 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). "To establish probable cause, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that the automobile contains contraband or evidence of criminal activity." People v. Hill , 2020 IL 124595, ¶ 23, ––– Ill.Dec. ––––, ––– N.E.3d ––––. Probable cause "requires only that the facts available to the officer—including the plausibility of an innocent explanation—would warrant a reasonable man to believe there is a reasonable probability ‘that certain items may be contraband *** or useful as evidence of a crime.’ " Id. ¶ 24 (quoting Texas v. Brown , 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ).

¶ 24 3. The Law Pertaining to Cannabis in Illinois

¶ 25 In 2014, the State of Illinois legalized the possession of cannabis for people to whom the State had granted a license to use cannabis for medical purposes. See 410 ILCS 130/1 et seq. (West 2014). In 2016, the State of Illinois passed a law stating that a licensed user of medical cannabis "shall not be considered an unlawful user" and that medical cannabis "purchased by a qualifying patient at a licensed dispensing organization shall be lawful products." 410 ILCS 130/7 (West 2016). Also in 2016, the State of Illinois decriminalized the possession of less than 10 grams of cannabis and defined possession of less than 10 grams as a "civil law violation." 720 ILCS 550/4(a) (West 2016).

¶ 26 Earlier this year in Hill , the Illinois Supreme Court acknowledged it had the opportunity to overrule its precedent that the smell of cannabis alone can establish probable cause sufficient to justify the search of a vehicle. The supreme court declined to do so, explaining as follows:

"[D]efendant further requests this court to overrule People v. Stout , 106 Ill. 2d 77, 87[, 87 Ill.Dec. 521, 477 N.E.2d 498, 502] (1985), which held the odor of burnt cannabis without other corroborating evidence provides an officer probable cause to search a vehicle. Based on the record, however, we find it unnecessary to address this narrow legal issue." Hill , 2020 IL 124595, ¶ 15, ––– Ill.Dec. ––––, ––– N.E.3d ––––.

Accordingly, Stout remains good law and binding precedent.

¶ 27 B. The Odor of Cannabis Justified the Search of Defendant's Vehicle

¶ 28 In this case, we must follow the lead of the Illinois Supreme Court. It is important to recognize that the ...