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                              Appellate Court                            Date: 2019.06.12
                                                                         17:14:22 -05'00'




                  People v. Rice, 2019 IL App (3d) 170134



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JEREMIAH PAIGE RICE, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-17-0134



Filed             April 16, 2019



Decision Under    Appeal from the Circuit Court of Bureau County, No. 16-CF-77; the
Review            Hon. Cornelius J. Hollerich, Judge, presiding.



Judgment          Affirmed.


Counsel on        Charles Schierer and Zachary Lessard, of Schierer & Ritchie, LLC, of
Appeal            East Peoria, for appellant.

                  Geno J. Caffarini, State’s Attorney, of Princeton (Patrick Delfino,
                  David J. Robinson, and Adam Trejo, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE LYTTON delivered the judgment of the court, with opinion.
                  Justices Carter and O’Brien concurred in the judgment and opinion.
                                              OPINION

¶1       Following a traffic stop, defendant Jeremiah Paige Rice was charged with one count of
     unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (West 2016)
     (methamphetamine possession)). He filed a motion to quash arrest and suppress evidence,
     which the trial court denied. After a stipulated bench trial, the circuit court found defendant
     guilty and sentenced him to 11 years in prison. He appeals the denial of his motion to suppress,
     arguing that, under the recent amendment to the Cannabis Control Act (Act) (720 ILCS 550/4
     (West 2016)), the odor of burnt cannabis alone is insufficient to expand the scope of a traffic
     stop into a drug investigation. We affirm.

¶2                                           BACKGROUND
¶3       On October 9, 2016, Sergeant Michael Kasprak of the Illinois State Police stopped
     defendant headed west on Interstate 80 for traveling 75 miles per hour in a 70-mile-per-hour
     zone. Defendant’s car had valid plates and was registered as a rental vehicle out of New
     Mexico. Kasprak smelled a strong odor of burnt cannabis when he approached the passenger
     side window of defendant’s vehicle. He did not observe any weapons or drugs in plain view
     inside the car. Based on the smell of cannabis, Kasprak believed that he had probable cause to
     search the vehicle for drugs.
¶4       After backup arrived, Kasprak asked defendant to exit the vehicle. He escorted him to the
     back of the vehicle and informed him that he was going to conduct a search of his person. In
     performing the search, Kasprak located a bulge in defendant’s right pants pocket, which he
     believed to be contraband. He pulled out a plastic bag of a leafy substance that looked like
     cannabis. Defendant was placed under arrest, and a search of his vehicle revealed 1300 pills
     containing methamphetamine.
¶5       Defendant filed a motion to quash the arrest and suppress evidence. He argued that since
     possession of less than 10 grams of cannabis was no longer a criminal offense under section 4
     of the Act, Kasprak did not have probable cause to search defendant’s vehicle based on the
     smell of burnt cannabis alone.
¶6       At the suppression hearing, Kasprak testified that he had been employed with the Illinois
     State Police for 10 years. He received drug interdiction training, and it was part of his daily job
     to address drug-related activity in the area. Kasprak testified that he was aware of the 2016
     change in Illinois law as it related to possession of cannabis. He noted that the law had changed
     for amounts of 10 grams or less and that the offense could be resolved by paying a fine.
¶7       On October 9, 2016, he observed defendant in a gray Chevrolet traveling west at a speed in
     excess of the posted speed limit. When he stopped defendant, he noticed the driver of the
     vehicle had rolled his window down and was showing his hands. Kasprak took the gesture to
     mean that defendant did not have any weapons. He approached the vehicle from the passenger
     side. He noticed defendant sitting in the driver’s seat and detected a strong odor of burnt
     cannabis emitting from inside the vehicle. Kasprak did not observe any weapons, drugs, or
     drug paraphernalia at defendant’s disposal.
¶8       Defendant provided his identification and rental agreement for the vehicle. Defendant was
     cooperative and handled himself in a calm and collected manner. Kasprak took defendant’s
     documents and returned to his squad car. After running a background check, he reported that


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       defendant’s driver’s license was valid. He then decided to run defendant’s criminal history.
       During the background search, Kasprak learned that defendant had prior arrests for possession
       of a controlled substance and other nondrug-related matters. Defendant’s prior arrests did not
       cause Kasprak to fear for his safety.
¶9         Kasprak called for backup because he planned to execute a search of the vehicle. Kasprak
       testified that he believed probable cause was established the moment he smelled cannabis:
                    “Q. So when did you make the determination that you had probable cause to search
                the vehicle.
                    A. When I approached the vehicle and detected the odor of burnt cannabis.”
       Kasprak explained that based on his training and experience he was certain he smelled burnt
       cannabis and not raw cannabis.
¶ 10       After backup arrived, Kasprak asked defendant to step out of the vehicle. Defendant
       complied and walked with Kasprak to the back of the car. Kasprak then informed defendant
       that he was going to conduct a search of his person. Kasprak told him he was going to pat him
       down for weapons and for a probable-cause search based on the odor of cannabis. In
       performing the search, Kasprak recovered a small plastic bag containing what he believed to be
       cannabis. Kasprak placed defendant in handcuffs and put him in the squad car.
¶ 11       Officers searched defendant’s vehicle and found two sealed envelopes containing $37,000
       in U.S. currency. During a second search of the vehicle at the police station, investigators
       recovered a small shoe care kit. A plastic bag inside the shoe care kit contained 1300
       multicolored pills that tested positive for methamphetamine.
¶ 12       The trial court viewed Kasprak’s dashboard camera video. The court noted that defendant
       was cooperative and appeared calm. The stop lasted approximately 11 minutes from the
       moment Kasprak turned on his emergency lights to the time he ordered defendant out of the
       car. The court held that the delay was not unreasonable and that Kasprak had probable cause to
       believe that the defendant had violated the Illinois Vehicle Code by speeding. See 625 ILCS
       5/11-601 (West 2016). The court then emphasized that the issue was whether “an officer
       [could] form probable cause to believe a crime has been committed in possessing cannabis
       based solely on the smell of burnt cannabis without some further evidence as to the weight of
       the cannabis” given the change in the law. The trial court concluded that Kasprak had probable
       cause to search defendant’s vehicle and denied his motion to suppress, stating:
                “[I]t appears to the court that it’s still good law that smelling the odor of burnt cannabis
                gives the officer probable cause to search the vehicle, whether he finds five grams of
                cannabis or five tons of cannabis.”
¶ 13       Following a stipulated bench trial, defendant renewed his argument in a motion to
       reconsider, which the trial court denied.

¶ 14                                          ANALYSIS
¶ 15      On appeal, defendant contends that the trial court erred in denying his motion to suppress.
       He argues that in light of the recent amendment to section 4 of the Act, the smell of burnt
       cannabis alone no longer provides a reasonable belief that a crime has occurred sufficient to
       support probable cause.
¶ 16      In reviewing a circuit court’s decision on a motion to suppress evidence, we employ a
       two-part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We grant great

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       deference to the court’s findings of fact and will disturb those findings only if they are against
       the manifest weight of the evidence. Id. However, we review the trial court’s ultimate legal
       ruling on the suppression motion de novo. Id.
¶ 17        Because a traffic stop is more analogous to an investigative stop as defined in Terry v.
       Ohio, 392 U.S. 1 (1968), courts generally apply the Terry principles when faced with a
       challenge to the reasonableness of a traffic stop. People v. Jones, 215 Ill. 2d 261, 270 (2005).
       In this case, there is no question that Kasprak had probable cause to stop defendant’s vehicle
       for speeding. See 625 ILCS 5/11-601 (West 2016). Without more, though, an officer lacks the
       authority to conduct a search of the vehicle or its occupants. Jones, 215 Ill. 2d at 271.
¶ 18        Under the automobile exception, police officers may search a vehicle without a warrant
       where probable cause exists to believe the vehicle contains evidence of criminal activity
       subject to seizure. People v. James, 163 Ill. 2d 302, 312 (1994). Probable cause means that
       there is a reasonable ground for belief of guilt and that the belief of guilt must be particularized
       with respect to the person to be searched or seized. Maryland v. Pringle, 540 U.S. 366, 371
       (2003). In determining whether probable cause exists, a law enforcement officer may rely on
       training and experience to draw inferences and make certain deductions. Ornelas v. United
       States, 517 U.S. 690, 700 (1996). Probable cause exists when the facts known to the arresting
       officer at the time are sufficient to lead a reasonable person to believe that the defendant is
       engaged in criminal activity. Jones, 215 Ill. 2d at 273-74.
¶ 19        It is well established that the distinctive odor of cannabis can be persuasive evidence of
       criminal activity. See People v. Stout, 106 Ill. 2d 77, 87 (1985). In Stout, our supreme court
       held that when an officer detects an odor of a controlled substance, the officer has probable
       cause to conduct a search of a vehicle if testimony has been elicited that the officer has training
       and experience in the detection of controlled substances. Id. Since then, Illinois courts have
       repeatedly recognized that the smell of burnt cannabis emanating from a vehicle will provide
       officers familiar with and trained in the detection of controlled substances with probable cause
       to search a vehicle. See id.; People v. Weaver, 2013 IL App (3d) 130054, ¶ 32. This principle
       has been extended to include searches of the driver and any passengers. People v. Zayed, 2016
       IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v.
       Strong, 215 Ill. App. 3d 484, 489-90 (1991).
¶ 20        Respondent acknowledges the holding in Stout. Yet he maintains that the odor of cannabis
       can no longer serve as a ground for probable cause or reasonable suspicion of criminal activity
       in light of the recent amendment to the Act decriminalizing the possession of small amounts of
       cannabis. See Pub. Act 99-697, § 40 (eff. July 29, 2016) (decriminalizing the possession of not
       more than 10 grams of cannabis by categorizing it as a “civil law violation” punishable by a
       fine ranging from $100 to $200). In support of his argument, he cites Commonwealth v. Cruz,
       945 N.E.2d 899, 908-10 (Mass. 2011).
¶ 21        In Cruz, the Massachusetts Supreme Judicial Court found that the mere odor of marijuana
       no longer provided law enforcement officers with reasonable suspicion of criminal activity
       following the passage of a referendum decriminalizing possession of one ounce or less of
       marijuana. Id. at 910. The court found that by voting in favor of the referendum, “the voters
       intended to treat offenders who possess one ounce or less of marijuana differently from
       perpetrators of drug crimes.” Id. As a result, the court concluded that the odor of burnt cannabis
       alone could not provide reasonable suspicion of criminal activity. Id.; see also Commonwealth
       v. Rodriguez, 37 N.E.3d 611, 614 (Mass. 2015) (because possession of one ounce or less of

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       marijuana had been decriminalized by referendum, odor of burnt marijuana alone did not
       create probable cause to justify search).
¶ 22        Only New York has followed Cruz. See People v. Brukner, 25 N.Y.S.3d 559, 572 (City Ct.
       2015) (concluding that “the mere odor of mari[j]uana emanating from a pedestrian, without
       more, does not create reasonable suspicion that a crime has occurred” following state
       legislature’s decriminalization of possession of less than 25 grams of marijuana (emphasis in
       original)).
¶ 23        The majority of jurisdictions, however, have reached the opposite conclusion. Those courts
       have found that decriminalization is not synonymous with legalization and that the odor of
       cannabis remains indicative of criminal activity despite the passage of statutes decriminalizing
       the possession of small amounts of marijuana. See In re O.S., 2018 IL App (1st) 171765, ¶ 28
       (citing Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland statute
       decriminalizing, but not legalizing, the possession of less than 10 grams of cannabis did not
       alter existing search and seizure law in that state)); People v. Zuniga, 2016 CO 52, ¶ 23 (odor
       of cannabis still relevant to probable cause determination and can support an inference of
       criminal activity even though possession of one ounce or less of cannabis was allowed under
       new Colorado law); State v. Senna, 2013 VT 67, ¶ 16, 194 Vt. 283, 79 A.3d 45 (passage of
       Vermont medical marijuana law did “not undermine the significance of the smell of marijuana
       as an indicator of criminal activity”); State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (odor of
       cannabis provided officers with reasonable belief of probability of criminal activity even
       though Arizona legislature recently passed medical marijuana statute).
¶ 24        Although defendant contends that Illinois has decriminalized small quantities of cannabis,
       marijuana possession remains unlawful under the Act. Section 4, as amended, states that “[i]t is
       unlawful for any person knowingly to possess cannabis.” 720 ILCS 550/4 (West 2016). As
       noted in In re O.S., “decriminalization is not synonymous with legalization.” In re O.S., 2018
       IL App (1st) 171765, ¶ 29. Under Illinois law, the knowing possession of cannabis is still a
       criminal offense and possession of more than 10 grams remains an unlawful act subject to
       criminal penalties. Id.
¶ 25        Here, the officers searched defendant’s vehicle because Kasprak detected the odor of
       cannabis. As we have stated, the odor of cannabis as indicative of criminal activity remains
       viable notwithstanding the legislature’s decriminalization of the possession of a small amount
       of marijuana. Once Kasprak identified the odor of burnt cannabis, probable cause for the
       search existed. Thus, the trial court properly concluded that the search was justified and denied
       defendant’s motion to suppress.

¶ 26                                       CONCLUSION
¶ 27      The judgment of the circuit court of Bureau County is affirmed.

¶ 28      Affirmed.




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