People v. Stribling

228 N.E.3d 766

2022 IL App (3d) 210098

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

v.Delante L. STRIBLING, Defendant-Appellee.

Appeal No. 3-21-0098

Appellate Court of Illinois, Third District.

Opinion Filed September 19, 2022

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 20-CM-816, Honorable Matthew Bertani, Judge, Presiding.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

James E. Chadd, Thomas A. Karalis, and Santiago A. Durango, of State Appellate Defender’s Office, of Ottawa, for appellee.

OPINION

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

¶ 1 The circuit court granted the motion to suppress filed by the defendant, Delante L. Stribling. The State filed a certificate of impairment and appeals, arguing that the legalization of the possession of a small quantity of marijuana has not changed the rule that the odor of burnt cannabis emanating from a vehicle provides an officer probable cause to search the vehicle.

¶ 2 I. BACKGROUND

¶ 3 The defendant was charged by information with unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 2020)), in that he "knowingly possessed in a white SUV a pistol, to wit: a 40 Smith and Wesson at a time when he was not on his land, or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission."

¶ 4 The defendant filed a motion to suppress. Based on the recent legalization of the possession of cannabis, the defendant alleged that the odor of cannabis should be insufficient probable cause to search a vehicle. A hearing on the motion was held on January 29, 2021. The parties stipulated that the arresting deputy would testify to the following: (1) on May 9, 2020, at 3:57 a.m., the officer observed the defendant violating various traffic laws at a specified location and executed a traffic stop; (2) the officer approached the defendant’s vehicle, and when the defendant opened his window, the officer could detect a strong odor of burnt cannabis emitting from inside the vehicle; (3) the defendant told the officer that someone had smoked inside the vehicle a "a long time ago"; and (4) based on these observations and admissions, the officer searched the vehicle. This stipulation was the only evidence presented.

¶ 5 The defense argued that, since the legalization of cannabis, it should be treated the same as alcohol, which requires more than just the odor of an alcoholic beverage for probable cause to search a vehicle The defense noted that the odor of burnt cannabis can linger and "sit on somebody," and there was no smoke or other evidence to suggest that cannabis would be in the vehicle. Moreover, the officer did not deploy a canine, discuss the defendant’s impairment, or do any field sobriety testing. The State argued that the supreme court case of People v. Stout, 106 Ill. 2d 77, 87 Ill.Dec. 521, 477 N.E.2d 498 (1985), which found that the odor of burnt cannabis alone was enough to search the vehicle, was still controlling caselaw. The State said that, since it is illegal to smoke cannabis within a vehicle on a highway, the smell of burnt cannabis provides probable cause to search the vehicle.

¶ 6 The court took the matter under advisement and issued a written order. The court granted the motion to suppress, finding "that the Officer lacked probable cause to search the vehicle under the automobile exception given the specific facts of this case—the strong odor of burnt cannabis and the admission that someone had smoked marijuana in the car some time ago." The court stated that it was unnecessary to resolve the issue of whether the odor of cannabis alone—burnt or raw—can ever establish probable cause to search under the automobile exception. The State filed a certificate of substantial impairment and appealed.

¶ 7 II. ANALYSIS

¶ 8 On appeal, the State argues that the court erred in granting the motion to suppress as the supreme court’s decision in Stout remains good law and, thus, the odor of burnt cannabis emanating from a vehicle provided probable cause for a warrantless search of the vehicle.

[1] ¶ 9 Generally, when considering a ruling on a motion to suppress, we use a two-part standard of review: reversing the court’s factual findings only if they are against the manifest weight of the evidence but reviewing de novo the ultimate ruling on the suppression. People v. Hill, 2020 IL 124595, ¶ 14, 443 Ill.Dec. 626, 162 N.E.3d 260. However, where, as here, the facts were uncontroverted, the case presents a question of law that we review de novo. People v. Krueger, 175 Ill. 2d 60, 64, 221 Ill.Dec. 409, 675 N.E.2d 604 (1996).

[2–7] ¶ 10 The fourth amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const., amend. IV. A search without a warrant is presumptively unreasonable, subject to certain limited exceptions. United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). One such exception is the "automobile exception." See Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under this exception, a warrantless search of a vehicle is not per se unreasonable as the transient nature of vehicles renders it unfeasible to secure a warrant before the vehicle leaves the jurisdiction, with the potential evidence of a crime or contraband in tow. California v. Acevedo, 500 U.S. 565, 569, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). Therefore, an immediate intrusion of a vehicle is allowed so long as the officer has probable cause to search the vehicle. Carroll, 267 U.S. at 154, 45 S.Ct. 280. Probable cause exists where the facts and circumstances known to the officer at the time would warrant a reasonable person to believe there is a reasonable probability that the automobile contains contraband or evidence of criminal activity. Hill, 2020 IL 124595, ¶ 23, 443 Ill.Dec. 626, 162 N.E.3d 260. The officer may rely on their training and experience; therefore, a reviewing court determines whether probable cause existed "through the standpoint of an objectively reasonable officer." Id. Probable cause "requires only that the facts available to the officer—including the plausibility of an innocent explanation—would warrant a reasonable [person] to believe there is a reasonable probability ‘that certain items may be contraband or stolen property 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)).

¶ 11 Here, the parties’ arguments regarding the officer’s probable cause to search the vehicle based on the odor of burnt cannabis, hinge on the changing landscape of cannabis law, which we will now consider.

¶ 12 A. In the Weeds of Cannabis Law

¶ 13 1. All Cannabis Is Illegal

¶ 14 Illinois first criminalized marijuana use and possession in 1931, classifying it as a narcotic under the Narcotic Drug Control Law (Ill. Rev. Stat. 1931, ch. 38, ¶ 22-1 et seq.). Pamela Platt, Legislative Note-Legal Analysis of Marijuana Legislation in Illinois, 22 DePaul L. Rev. 277, 278-79 (1972). The Cannabis Control Act (Act) (Ill. Rev. Stat. 1977, ch. 56½, ¶ 701 et seq. (now codified at 720 ILCS 550/1 et seq.)) was then passed in 1978, setting forth the paradigm and penalties for cannabis-related offenses. Moreover, any concentration of cannabis in a person’s blood or urine while they were operating a motor vehicle was enough to warrant a charge of driving under the influence of drugs. See 625 ILCS 5/11-501.2 (West 1994).

¶ 15 Consistent with the illegal nature of cannabis, our supreme court in Stout determined that, when a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle, the odor alone provided sufficient enough probable cause to search the vehicle under the automobile exception. Stout, 106 Ill. 2d at 88, 87 Ill.Dec. 521, 477 N.E.2d 498. No additional corroborating evidence was necessary. Id. After Stout, Illinois courts continued to recognize that the smell of burnt or raw cannabis emanating from a vehicle provides probable cause to search the vehicle, if detected by an officer familiar with and trained in the detection of controlled substances. See People v. Rice, 2019 IL App (3d) 170134, 429 Ill.Dec. 840, 125 N.E.3d 546; People v. Smith, 2012 IL App (2d) 120307, 367 Ill. Dec. 556, 982 N.E.2d 234; People v. Sims, 2022 IL App (2d) 200391, 462 Ill.Dec. 506, 207 N.E.3d 238.¹

¶ 16 2. Medical Use and Decriminalization

¶ 17 The state of the law on cannabis began to change in 2013, when the Compassionate Use of Medical Cannabis Pilot Program Act² was passed (410 ILCS 130/1 et seq. (West 2014)), which allowed those with certain debilitating medical conditions to purchase and possess cannabis. Then, in 2016, Public Act 99-697 began to decriminalize cannabis. Pub. Act 99-697, § 40 (eff. July 29, 2016) (amending 720 ILCS 550/4). Previously under the Act, possessing below 2.5 grams of cannabis was a Class C misdemeanor, 2.5 grams to 10 grams was a Class B misdemeanor, and 10 to 30 grams was a Class A misdemeanor. 720 ILCS 550/4 (West 2014). Under the new law, possession below 10 grams of cannabis was only a civil violation punishable by a fine. 720 ILCS 550/4 (West 2016). Stated another way, an individual would no longer face any jail time for possessing less than 10 grams of cannabis. Moreover, possession of 10 to 30 grams of cannabis was a Class B misdemeanor and possession of 30 to 100 grams was a Class A misdemeanor. Id. The felony classifications for larger possessions also changed. See id. Public Act 99-697 likewise carved out a cannabis limit for driving...