                                       2020 IL 124595



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS




                                     (Docket No. 124595)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                          CHARLES D. HILL, Appellant.

                                Opinion filed March 19, 2020.



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

        Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, and Neville
     concurred in the judgment and opinion.

        Justice Michael J. Burke took no part in the decision.



                                          OPINION

¶1       Defendant, Charles D. Hill, was charged with unlawful possession of a
     controlled substance, after Decatur police officer Robert Baker searched
     defendant’s vehicle and found a small rock of crack-based cocaine under the
     driver’s seat. During pretrial, defendant filed a motion to suppress, arguing that the
     officer did not have reasonable suspicion for the initial stop and that the officer did
     not have probable cause to search defendant’s vehicle. The Macon County circuit
     court granted the motion based on the lack of reasonable suspicion for the initial
     stop but noted the subsequent search would have been valid if the initial stop was
     valid. The appellate court reversed and remanded. 2019 IL App (4th) 180041, ¶ 39.
     This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff.
     July 1, 2018). We now affirm the appellate court’s judgment, albeit on different
     grounds, and remand to the trial court for further proceedings.


¶2                                     BACKGROUND

¶3       Before this court defendant abandons his challenge to the initial stop and now
     only challenges the probable cause to search his vehicle. As such, we provide only
     the facts relevant to whether probable cause to search defendant’s vehicle was
     established.

¶4       After being charged with unlawful possession of a substance containing less
     than 15 grams of cocaine (720 ILCS 570/402(c) (West 2016)), defendant filed a
     motion to suppress evidence of the cocaine. He argued Officer Baker did not have
     reasonable suspicion for the stop of his vehicle and lacked probable cause for the
     subsequent search of his vehicle. Officer Baker was the only witness at the hearing
     on the motion to suppress. He testified as follows.

¶5       On May 29, 2017, he activated his lights to initiate a stop of defendant’s vehicle
     based on his reasonable belief that the passenger was a known fugitive, Duane Lee.
     After driving a few blocks, defendant finally came to a stop. Based on his
     experience and training, Officer Baker knew vehicles that take a little while to stop
     often are concealing or destroying contraband or producing a weapon. Once
     stopped, Officer Baker approached the passenger side of the vehicle and had the
     passenger lower the window. He immediately smelled the strong odor of raw
     cannabis.

¶6      At some point, the passenger was identified as Matthew Anderson. Officer
     Baker could not recall at what point he realized the passenger was not Lee.

¶7       However, Officer Baker conducted a search of the car. According to his
     testimony, he searched defendant’s vehicle based on the smell of raw cannabis. The




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       search revealed cannabis and a small rock that tested positive for crack cocaine. He
       testified that he could not recall the amount of cannabis recovered but that he knew
       it was much less than a pound or ounce. 1

¶8         During redirect examination, defense counsel admitted a video of the stop into
       evidence. The video reveals Officer Baker approached the passenger side of the car,
       with his backup officer immediately behind him, and asked the identity of the
       passenger. Shortly after the passenger began talking, during which he stated that he
       got out of jail the day before, Officer Baker asked if the passenger would step out
       of the car. The passenger complied. Officer Baker then walked to the driver side of
       the car.

¶9        After defendant spoke, Officer Baker informed defendant that he believed the
       passenger was wanted on a warrant. Then, Officer Baker promptly stated that he
       thought the passenger was someone else. The passenger began to speak again, but
       Officer Baker redirected his attention to defendant and asked “I smell raw cannabis.
       How much is in the vehicle? Do you have any weed in the car?” Defendant denied
       having weed in the car and stated that he did not recently smoke cannabis.

¶ 10        The video then shows Officer Baker looked through the window into the
       backseat. The passenger informed Officer Baker that the smell of cannabis could
       be emitting off him because he smokes cannabis. Roughly 20 seconds later, Officer
       Baker stated, “I see a bud in the backseat. Did somebody try to rip it up and toss it
       out or anything?” In response, the passenger clarified he smoked early with friends
       but did not smoke in the car. After another squad car arrived about a minute later,
       Officer Baker asked defendant to step out of the car and initiated a search of the
       car.

¶ 11       The trial court granted the motion in part. It found that, although the passenger
       and Duane Lee look similar, Officer Baker had no other corroborating evidence.
       The basis of the stop was thus too tenuous, as Office Baker “really wasn’t certain
       who was seated in the passenger seat.” The trial court noted, however, that if it had
       determined the stop was valid, there was no problem with the basis for the search.
       The State appealed.

           1
            According to the State’s response to defendant’s motion to suppress, “a small amount of
       cannabis residue” was found.




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¶ 12       The appellate court reversed, finding Officer Baker had reasonable suspicion to
       stop defendant’s vehicle and probable cause to search the vehicle. With respect to
       the search, the appellate court found the smell of cannabis established probable
       cause because, although it is decriminalized, a substantial number of cannabis-
       related activities remain unlawful. Therefore, the smell of cannabis is still
       suggestive of criminal activity. It further determined that to require officers to
       obtain facts leading to the conclusion that a criminal amount of cannabis is present
       before probable cause is established leads to an absurd result because officers could
       not investigate further unless they knew the amount involved. We allowed
       defendant’s petition for leave to appeal, pursuant to Illinois Supreme Court Rule
       315(a) (eff. July 1, 2018).


¶ 13                                       ANALYSIS

¶ 14        In reviewing a trial court’s ruling on a motion to suppress, we employ the two-
       part standard of review adopted by the United States Supreme Court in Ornelas v.
       United States, 517 U.S. 690 (1996). Under this standard, a reviewing court must
       give due weight to the trial court’s findings of fact and will reverse only if they are
       against the manifest weight of the evidence. However, this court may assess the
       established facts in relation to the issues and may draw its own conclusions when
       deciding what relief, if any, should be granted. Accordingly, we review de novo the
       trial court’s ultimate ruling as to whether suppression is warranted. People v.
       Bartelt, 241 Ill. 2d 217, 226 (2011).

¶ 15       As stated above, defendant no longer challenges the initial stop of his car and
       only asserts there was no probable cause to search his vehicle. He contends 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 the odor of raw cannabis. In light of this change, defendant further
       requests this court to overrule People v. Stout, 106 Ill. 2d 77, 87 (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.

¶ 16      Unlike Stout, the officer here relied on more than the odor of raw cannabis.
       Officer Baker testified that defendant delayed pulling over, which based on his



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       training and experience often indicates the passengers of the car are hiding
       contraband or retrieving a weapon. Defendant argues that, because he stopped his
       car less than one minute after Officer Baker activated his lights, he did not take
       more than a reasonable amount of time to safely bring his car to a stop. However,
       after reviewing the video of the stop and search, it is clear defendant had multiple
       opportunities to safely stop his car.

¶ 17       Also, the video of the stop also revealed that Officer Baker observed a “bud” of
       cannabis in the backseat of defendant’s car. Defendant assumes Officer Baker could
       not rely on his observation of a “bud” of cannabis in the backseat in establishing
       probable cause because he failed to collect and document such “bud.” We find it
       unreasonable to make such inference. Defendant was provided an opportunity to
       cross-examine Officer Baker to elucidate whether he was mistaken about the “bud”
       of cannabis being in the backseat and whether such mistake was reasonable. Heien
       v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 539 (2014) (fourth
       amendment tolerates reasonable mistakes, but “those mistakes—whether of fact or
       of law—must be objectively reasonable” (emphasis omitted)). However, he failed
       to do so. Therefore, the fact that Officer Baker observed a “bud” of cannabis in the
       backseat is undisputed.

¶ 18      Because the record shows more than the odor of raw cannabis was considered,
       we need not address the validity of Stout after the enactment of the Compassionate
       Use of Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1 et seq. (West
       2016)) and decriminalization of possession of small amounts of cannabis. Instead,
       we address whether the totality of the circumstances here supported a finding of
       probable cause. 2

¶ 19       The fourth amendment of the United States Constitution protects the “right of
       the people to be secure in their persons, houses, papers, and effects, against

           2
            Although we do not reach whether the odor of cannabis, alone, is sufficient to establish
       probable cause, the smell and presence of cannabis undoubtedly remains a factor in a probable cause
       determination. District of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 588 (2018) (“ ‘the
       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.’ ” (citing Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983))).




                                                        -5-
       unreasonable search and seizures.” U.S. Const., amend. IV. This constitutional
       guarantee is applicable to searches and seizures conducted by the states through the
       due process clause of the fourteenth amendment (U.S. Const., amend. XIV). People
       v. Wilson, 228 Ill. 2d 35, 40 (2008). The cornerstone of the fourth amendment is
       reasonableness, which seeks to balance the interest in according discretion in
       enforcing the law for the community’s protection and safeguarding against
       invasions of citizens’ privacy. People v. Jones, 215 Ill. 2d 261, 268-69 (2005).

¶ 20       Generally, a search is per se unreasonable if conducted without a warrant
       supported by probable cause and approved by a judge or magistrate. Mincey v.
       Arizona, 437 U.S. 385, 390 (1978). The United States Supreme Court, however,
       has clearly recognized a few exceptions to the warrant requirement. Jones, 215 Ill.
       2d at 269.

¶ 21        One exception was recognized in Carroll v. United States, 267 U.S. 132 (1925),
       for searches of automobiles, because their transient nature often renders it
       impracticable to secure a warrant before the automobile escapes the jurisdiction in
       which the warrant must be sought. California v. Acevedo, 500 U.S. 565, 569 (1991).
       Given this impracticability, an immediate intrusion of a vehicle is necessary if
       police officers are to secure the evidence of a crime or contraband. Id.; Jones, 215
       Ill. 2d at 269. Therefore, a warrantless search of an automobile is not per se
       unreasonable. Acevedo, 500 U.S. at 569.

¶ 22       The “automobile exception,” however, is no broader and no narrower than a
       magistrate could legitimately authorize by warrant. While a warrant is not required
       for a search of an automobile, officers must nevertheless have probable cause to
       search the vehicle. Carroll, 267 U.S. at 154.

¶ 23       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. Smith, 95 Ill. 2d 412, 419 (1983). It is a pragmatic,
       nontechnical analysis of “everyday life on which reasonable and prudent persons—
       not legal technicians—act.” Jones, 215 Ill. 2d at 274; accord People v. Blitz, 68 Ill.
       2d 287, 292 (1977). In determining whether probable cause exists, officers may rely
       on their law-enforcement training and experience to make inferences that might
       evade an untrained civilian. Jones, 215 Ill. 2d at 274. Accordingly, a reviewing



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       court makes this determination through the standpoint of an objectively reasonable
       officer. Id.

¶ 24       Probable cause deals with probabilities, not certainties. Illinois v. Gates, 462
       U.S. 213, 231-32 (1982). It is a flexible, commonsense standard that “does not
       demand any showing that such a belief be correct or more likely true than false.”
       Texas v. Brown, 460 U.S. 730, 742 (1983). Therefore, probable cause does not
       require an officer to rule out any innocent explanations for suspicious facts. District
       of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 588 (2018). Instead, it
       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 stolen property or
       useful as evidence of a crime.” Brown, 460 U.S. at 742; accord Wesby, 583 U.S. at
       ___, 138 S. Ct. at 588.

¶ 25       Relying on both the Act and the decriminalization of cannabis, defendant
       contends that the mere possession of small amounts of cannabis is no longer a
       criminal activity nor is contraband and is therefore insufficient to establish probable
       cause. Instead, courts should treat cannabis like guns, alcohol, and tobacco.
       Accordingly, without more facts to establish defendant illegally possessed a
       criminal amount of cannabis or that a crime was committed, he argues the officers
       here lacked probable cause.

¶ 26       While we agree that the Act somewhat altered the status of cannabis as
       contraband, we nevertheless find the officer here had probable cause to search
       defendant’s vehicle. In doing so, we address, in turn, each of defendant’s
       authorities’ impact on a probable cause determination regarding cannabis.

¶ 27       With respect to the decriminalization of cannabis, defendant contends that the
       legislature expressed its intent to change the status of cannabis as contraband by
       reducing the penalty for possession of small amounts of cannabis to only a civil
       violation and a fine. The State argues that decriminalization is not legalization and,
       thus, cannabis remains contraband.

¶ 28       In creating the automobile exception to the warrant requirement of the fourth
       amendment, the United States Supreme Court clearly equated “contraband” with
       illegality rather than unlawful acts subject to criminal penalties. See Carroll, 267




                                                -7-
       U.S. 132. In Carroll, defendant was illegally transporting liquor possessed in
       violation of the National Prohibition Act (Pub. L. No. 66-66, 41 Stat. 305 (1919)),
       which was punishable by a fine for the first offense. Id. at 154. The defendant there
       argued that, because his violation was subject only to a misdemeanor, the officer
       needed to smell alcohol to conclude the misdemeanor had, in fact, occurred in their
       presence, pursuant to the common-law requirements to arrest a person of a
       misdemeanor. Id. at 157. The Court rejected defendant’s contention, finding “[t]he
       character of the offense for which, after the contraband liquor is found and seized,
       the driver can be prosecuted does not affect the validity of the seizure.” Id. at 159.

¶ 29       While acknowledging Carroll involved a statute that explicitly authorized the
       seizure of the contraband liquor, we find its principles generally apply. No one
       possesses a legitimate interest in contraband. Illinois v. Caballes, 543 U.S. 405, 408
       (2005). The incapability of possessing a legitimate privacy interest in an item is the
       result of the legislature’s public policy determination to prohibit the possession of
       such item, not from the punishment attached thereto. See Carroll, 267 U.S. at 158-
       59; see also Warden v. Hayden, 387 U.S. 294, 303 (1967). As such, whether a
       defendant is subject to criminal penalties is irrelevant in determining whether an
       item is contraband. See Commonwealth v. Cruz, 945 N.E.2d 899, 911 (Mass. 2011)
       (“[D]ecriminalization is not synonymous with legalization. [Citation.] Because
       cannabis remains unlawful to possess, any amount of marijuana is considered
       contraband.”). To hold otherwise leads to the absurd conclusion that persons could
       have a legitimate privacy interest in an item that remains illegal to possess.

¶ 30       The foregoing definition is also supported by the standard definitions found in
       dictionaries, which we rely upon to ascertain the meaning of terms. For example,
       Merriam-Webster’s dictionary defines contraband as “illegal or prohibited traffic
       in goods” and “goods or merchandise whose importation, exportation, or
       possession is forbidden.” Merriam-Webster’s Collegiate Dictionary 271 (11th ed.
       2003). Similarly, Black’s Law Dictionary, which defendant relies on, defines
       contraband as “[i]llegal or prohibited trade; smuggling” and “[g]oods that are
       unlawful to import, export, produce or possess.” Black’s Law Dictionary 365 (9th
       ed. 2009). Contraband therefore encompasses all items that are unlawful to possess,
       regardless of the accompanying penalty.




                                               -8-
¶ 31       Based on this construction, defendant’s argument regarding decriminalization
       of cannabis is fatally flawed. While the decriminalization of cannabis diminished
       the penalty for possession of no more than 10 grams of cannabis to a civil law
       violation punishable by a fine, possession of cannabis remained illegal. 720 ILCS
       550/4(a) (West 2016). Accordingly, the decriminalization of possessing small
       amounts of cannabis did not alter the status of cannabis as contraband.

¶ 32       The Act, however, supports defendant’s argument that cannabis is no longer
       contraband in every circumstance. The Act permits possession of a determinative
       amount of cannabis for registered, qualifying patients. 410 ILCS 130/25(a) (West
       2016). It further provides that possession of cannabis in accordance with the Act is
       not subject to forfeiture or seizure. Id. § 25(k). Because medical users are capable
       of legally possessing cannabis, we agree with defendant that possession of cannabis
       is not contraband for medical users.

¶ 33       According to defendant, because cannabis may legally be owned in some
       circumstances, the officers here needed more facts to suggest the cannabis was
       illegally owned or connected to another criminal activity. We disagree.

¶ 34       While the mere presence of cannabis for medical users may no longer be
       immediately attributable to criminal activity or possession of contraband, such
       users must possess and use cannabis in accordance with the Act. Notably, section
       11-502.1 of the Illinois Vehicle Code prohibits any driver or passenger, who is a
       medical cannabis cardholder, from possessing cannabis within an area of the motor
       vehicle “except in a sealed, tamper-evident medical cannabis container.” 625 ILCS
       5/11-502.1(b), (c) (West 2016); see 410 ILCS 130/30(a)(5) (West 2016) (the Act
       does not allow any person to violate section 11-502.1 of the Illinois Vehicle Code).
       Violation of this provision constitutes a Class A misdemeanor. 625 ILCS 11-
       502.1(d)(1) (West 2016).

¶ 35       In applying the above principles here, we find the officers had probable cause
       to search defendant’s vehicle. Officer Baker testified that defendant delayed in
       pulling over and, based on his experience, vehicles that delay in pulling over often
       are hiding contraband or retrieving a weapon. In conducting the stop, the passenger
       revealed that he smokes cannabis and did so earlier that day. Further, Officer Baker
       saw a loose “bud” in the backseat and smelled a strong odor of cannabis, which,
       together, indicate that cannabis was in the car and, likely, not properly contained.



                                              -9-
       As such, even if the officer presumed defendant was in legal possession of cannabis
       pursuant to the Act, the facts here established probable cause that evidence of a
       crime was in the vehicle.

¶ 36        This conclusion comports with this court’s treatment of alcohol, which
       defendant asserts this court should treat analogously to cannabis based on the recent
       changes in our laws. Similar to cannabis, possession of alcohol is lawful under some
       circumstances but remains unlawful under other circumstances. Id. § 11-502
       (illegal to transport alcohol within the passenger area of a vehicle, unless in the
       original container with the seal unbroken); 235 ILCS 5/6-16 (West 2016) (illegal
       for persons under 21 years old to possess alcohol). One such unlawful
       circumstance, illegal transportation of alcohol, was discussed in Smith, 95 Ill. 2d
       412. Although the mere possession of alcohol is legal, this court nevertheless held
       that the officer there had probable cause to search for alcohol in a vehicle where the
       officer smelled alcohol and observed a bottle in a brown paper bag in the vehicle.
       Id. at 416, 419. Multiple districts of our appellate court have also found probable
       cause to search a vehicle under similar circumstances. People v. Gray, 95 Ill. App.
       3d 879, 882 (1981) (officer had probable cause to arrest defendant for illegal
       transportation of open liquor upon seeing two open beer cans, which smelled like
       beer, in his truck in plain view); People v. Zeller, 51 Ill. App. 2d 935 (1977)
       (probable cause established by observation of an open beer can and a puddle near
       the can, although officer did not detect the odor of alcohol); see People v. Corrigan,
       45 Ill. App. 3d 502 (1977) (search of a glove compartment was justified where
       officer smelled alcohol, observed damp spot on car floor, and saw liquid dripping
       from the glove compartment).

¶ 37      In light of these authorities and what is shown by the record, we find the facts
       available to the officer would put a reasonably prudent person on notice that the
       vehicle contained contraband or evidence of a crime.


¶ 38                                     CONCLUSION

¶ 39       For the foregoing reasons, we hold that there was probable cause to search
       defendant’s car. The judgment of the appellate court is therefore affirmed, and the
       cause is remanded to the circuit court for further proceedings.




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¶ 40      Appellate court judgment affirmed.

¶ 41      Circuit court judgment reversed.

¶ 42      Cause remanded.


¶ 43       JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
       of this case.




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