People v. StriblingPeople v. Stribling
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justices Hettel and Peterson concurred in the judgment and opinion.
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 оf burnt cannabis emanating from a vehicle provides an officer probable cause to search the vehicle.
I. BACKGROUND
¶ 2 The defendant was charged by information with unlawful use of a weapon (
¶ 3 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
¶ 4 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 cаn 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 (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.
¶ 5 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 casе—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.
II. ANALYSIS
¶ 6 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.
¶ 7 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. 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 (1996).
¶ 8 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.”
¶ 9 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.
A. In the Weeds of Cannabis Law
1. All Cannabis Is Illegal
¶ 10 Illinois first criminalized marijuana use and possession in 1931, classifying it as a narcotic under the Narcotic Drug Control Law (
¶ 11 Consistent with the illegal nature of cannabis, our supreme court in Stout determined that, whеn 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. 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 tо 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; People v. Smith, 2012 IL App (2d) 120307; People v. Sims, 2022 IL App (2d) 200391.1
2. Medical Use and Decriminalization
¶ 12 The state of the law on cannabis began to change in 2013, when the Compassionate Use of Medical Cannabis Pilot Program Act2 was passed (
The felony classifications for larger possessions also changed. See
¶ 13 The supreme court again had the opportunity to consider cannabis and the automobile exception in Hill, 2020 IL 124595. In Hill, an officer pulled over the defendant‘s vehicle “based on his reasonable belief that the passenger was a known fugitive.” Id. ¶ 5. The defendant failed to pull over for a few blocks, which the officer stated, based on his experience and training, often meant that the occupants were concealing or destroying contraband or producing a weapon. Id. The officer approached the vehicle, and when the vehicle‘s window was rolled down, the officer smеlled a strong odor of raw cannabis. Id. The defendant denied having any or recently smoking cannabis. Id. ¶ 9. The officer looked through the window in the back seat and saw ” ‘a bud.’ ”3 Id. ¶ 10. The officer executed a search of the vehicle and discovered a small amount of cannabis and a small rock that tested positive for crack cocaine. Id. ¶ 7. The defendant filed a motion to suppress, which the circuit court granted, and the State appealed. Id. ¶ 11. The appellate court reversed, finding that the smell of cannabis established probable cause to search. Id. ¶ 12.
¶ 14 Before the supreme court, the defendant argued that “the legalization of medical cannabis and decriminalization of small amounts of cannabis altered the police‘s power to conduct a warrantless search of a vehicle solely based on thе odor of raw cannabis.” Id. ¶ 15. While the court agreed that the Act “somewhat altered the status of cannabis as contraband” (id. ¶ 26), “the United States Supreme Court clearly equated ‘contraband’ with illegality rather than unlawful acts subject to criminal penalties” (id. ¶ 28 (citing Carroll, 267 U.S. 132)). The court noted that decriminalization is not the same as legalization and, as it remained unlawful to possess cannabis, it remained contraband. Id. ¶ 29. “To hold otherwise leаds to the absurd conclusion that persons could have a legitimate privacy interest in an item that remains illegal to possess.” Id.
¶ 15 The court agreed with the defendant‘s argument that, based on the legalization of medical marijuana, cannabis is no longer contraband in every instance. Id. ¶ 32. However, the court noted that medical marijuana users were required to possess and use cannabis in accordance with the Act, which required that, when transporting medical cannabis in a vehicle, it must be in a sealed, tamper-evident container. Id. ¶ 34 (citing
¶ 16 Further, the court noted that this analysis comported with the court‘s treatment of alcohol, which is lawful in some circumstances but remains unlawful under other circumstances (such as the possession of an open container of alcohol in a vehiсle or possession by a person under 21 years old). Id. ¶ 36. The court found the circumstances similar to People v. Smith, 95 Ill. 2d 412 (1983), where the officer had probable cause to search the vehicle where he smelled an alcoholic beverage and observed a bottle in a brown paper bag in the vehicle. Hill, 2020 IL 124595, ¶ 36. Based on the corroborating evidence available to the officer, the court determined that it “need not address the validity of Stout after the enactment of the Cоmpassionate Use of Medical Cannabis *** Program Act *** and decriminalization of possession of small amounts of cannabis.” Id. ¶ 18. The court stated that, though it did not reach the question of whether the odor of cannabis, alone, was enough to establish probable cause, “the smell and presence of cannabis undoubtedly remains a factor in a probable cause determination.” Id. ¶ 18 n.2 (citing District of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 588 (2018) (“[T]he relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts. [Citation.] Thus, the panel majority should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the [innocent] explanation itself—that there was a ‘substantial chance of criminal activity.’ ” (Internal quotation marks omitted.))).
3. Legalization of Recreational Use
¶ 17 Since Hill, Illinоis became the eleventh state to legalize marijuana for adult, recreational use. As of January 1, 2020, under the Cannabis Regulation and Tax Act (
¶ 18 Since the legalization of recreational cannabis in Illinois, neither the supreme court nor the appellate court has considered whether the enactment of this law has changed the probable cause determination for cannabis. However, at this point 18 other states,4 plus Washington, D.C., and Guam, have legalized recreational marijuana use, and some of those jurisdictions have had the opportunity to consider probable cause to search since this legalization.5 For example, Colorado has found that “the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination.” People v. Zuniga, 2016 CO 52, ¶ 23 (finding probable cause to search a vehicle where the defendant and the driver of the car were inconsistent in their stories, the defendant and the driver appeared extremely nervous, the officer smelled a heavy odor of raw marijuana, and the K-9 alerted on the vehicle). However, Colorado has further determined that, because a drug-sniffing dog‘s alert may signal only lawful activity (the possession of a small amount of cannabis), officers must have probable cause based on more than that smell to believe the vehicle
B. Probable Cause to Search the Defendant‘s Vehicle
¶ 19 Having set forth the changing landscape of cannabis law and its relation to probable cause to search a vehicle, we now consider whether the officer, on the facts before us, had probable cause to search the defendant‘s vehicle.
¶ 20 As stated above, the State and the defendant stipulated to a short recitation of facts: (1) on May 9, 2020, the officer executed a traffic stop аfter the defendant disobeyed traffic laws; (2) the officer approached the defendant‘s vehicle and smelled 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 long time ago“; and (4) based on these observations and admissions, the officer searched the vehicle.
¶ 21 We find that the factual scenario, as presented in this stipulаtion, did not provide the officer with probable cause to search the vehicle. The smell of burnt cannabis, alone, coupled with the defendant‘s statement that someone (he did not state that it was himself) had smoked in the vehicle “a long time ago,” was not enough for “a reasonable officer [to] conclude—considering all of the surrounding circumstances, including the plausibility of the [innocent] explanation itself—that there was a ‘substantial chance of criminal activity.’ ” Wesby, 138 S. Ct. at 588. It was legal for the defendant to possess some cannabis. It was also legal for the defendant to have smoked cannabis and then drive, so long as the concentration in his blood or urine did not pass the threshold amount. The evidence presented does not show that the officer had any concerns with the defendant‘s blood concentration or any impaired driving. We note that the stipulation does not state which traffic violation the defendant committed. A traffic violation, in and of itself, is not necessarily indicative of impairment. See Chubb/Home Insurance Cos. v. Outboard Marine Corp., 238 Ill. App. 3d 558, 571 (1992) (“merely driving at excessive speeds or the mere fact of involvement in an accident are not necessarily indicative of impairment“). There was no reason for the officer to think that the defendant was currently smoking cannabis in the car—there was no indication that there was smoke in the car, nor did the officer see any marijuana or drug paraphernalia, nor did the defendant‘s demeanor show that he was hiding anything. Moreover, the smell of burnt cannabis may have lingered in the defendant‘s car or on his clothing. Simply put, there was no evidence that would lead a reasonable officer to conclude that there was a substantial chance of criminal aсtivity afoot.
¶ 22 We hold that the smell of the burnt cannabis, without any corroborating factors, is not enough to establish probable cause to search the vehicle, and the court did not err in granting the motion to suppress. This finding comports with the supreme court‘s holding in Hill and its treatment of the analogous situation regarding alcohol. Supra ¶ 21. Thus, the supreme court‘s holding in Stout is no longer applicable to postlegalization fact patterns.
III. CONCLUSION
¶ 23 The judgment of the circuit court of Will County is affirmed.
¶ 24 Affirmed.
| Decision Under Review: | Appeal from the Circuit Court of Will County, No. 20-CM-816; the Hon. Matthew Bertani, Judge, presiding. |
| Attorneys for Appellant: | 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. |
| Attorneys for Appellee: | James E. Chadd, Thomas A. Karalis, and Santiago A. Durango, of State Appellate Defender‘s Office, of Ottawa, for appellee. |