                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Hopson, 2012 IL App (2d) 110471




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    KENDRICK HOPSON, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-11-0471


Filed                      September 12, 2012


Held                       Defendant’s motion to suppress cannabis seized from him without a
(Note: This syllabus       warrant was improperly granted on the ground that the State did not
constitutes no part of     present any evidence of the officer’s ability to recognize cannabis, since
the opinion of the court   the absence of such evidence is not per se fatal to a finding of probable
but has been prepared      cause, and in defendant’s case, even absent the additional evidence, it was
by the Reporter of         not unreasonable for the officer to believe the green, leafy substance he
Decisions for the          saw in a plastic bag was cannabis.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 09-CF-3200;
Review                     the Hon. John R. Truitt, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
Appeal                     and Jay Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.

                           Thomas A. Lilien and Sherry R. Silvern, both of State Appellate
                           Defender’s Office, of Elgin, for appellee.


Panel                      JUSTICE BURKE delivered the judgment of the court, with opinion.
                           Justices Hudson and Birkett concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Kendrick Hopson, was charged with armed violence (720 ILCS 5/33A-2(a)
        (West 2008)), unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West
        2008)), aggravated unlawful possession of a weapon (720 ILCS 5/24-1.6 (West 2008)),
        possession of a firearm without a firearm owner’s identification card (430 ILCS 65/2(a)(1)
        (West 2008)), possession of a controlled substance (720 ILCS 570/401(c)(2) (West 2008)),
        and possession of a controlled substance with the intent to deliver (720 ILCS 570/407(b)(1)
        (West 2008)). Defendant moved to suppress the cocaine and marijuana that the police seized
        from him. The trial court granted the motion, and the State appeals. The State contends that
        the trial court erred in granting the motion on the basis that the State failed to produce
        evidence of the officer’s ability to recognize cannabis, arguing that such evidence was
        unnecessary. Alternatively, the State argues that the trial court erred in denying its motion
        to reopen the proofs so it could lay the foundation. We agree with the State’s first argument
        and therefore reverse the trial court’s grant of defendant’s motion to suppress.
¶2          At the hearing on the suppression motion, defendant testified that in the early morning
        hours of October 9, 2009, he was sitting in a Cadillac in the parking lot of the Body Shop,
        a strip club in Rockford, when a police car pulled into the lot and stopped in front of
        defendant’s car. As defendant got out of the car to go into the club, two officers got out of
        the squad car and asked him for identification. Defendant said that he had none. He then
        returned to his car to place in it a candy bar that he had been given and to retrieve his keys.
        As he started walking away from the car, one of the officers asked him a second time for
        identification and said that he was going to search him for weapons. In doing so, the officer
        located defendant’s identification. The officer also felt an object in defendant’s breast pocket
        and asked what it was. Despite defendant’s claim that it was candy, the officer removed the
        item and discovered that it was cocaine. He then arrested defendant. Defendant admitted that
        he had a bottle of Grey Goose vodka on the floorboard of the car and admitted that it had
        been opened, but he denied that the cap was off when the officer was there.

                                                  -2-
¶3       Rockford police officer Ronald Berke testified that he had been instructed to keep an eye
     out for people hanging out in the Body Shop parking lot. The block was a crime “hot spot”
     where there had been drug dealings and shootings. Specifically, Berke testified that there had
     been several problems in the parking lot and within the business in recent weeks. The night
     before, there had been two different shootings in or near that parking lot. The Body Shop
     itself had enlisted the police department’s assistance in keeping order in the lot.
¶4       Berke and his partner, Officer John Eissens, were driving past the Body Shop when they
     saw a group of five or six people standing around a blue Cadillac in the parking lot. They
     pulled into the lot and approached the group. As they did so, defendant got out of the car and
     also approached the group. Defendant then returned to the driver’s side of the car, and Berke
     went to the passenger side. Defendant got in the car and put a candy bar in the center console
     area. When he did so, Berke saw in the pocket of the driver’s-side door a small plastic bag
     containing what appeared to be cannabis. Berke also noticed an open bottle of Grey Goose
     vodka on the driver’s-side floorboard. The cap was off the bottle. Berke testified that at this
     point defendant was not free to leave, because of the bag of cannabis. When asked if he
     eventually recovered the “green, leafy substance,” Berke testified that he did. Defendant got
     out of the car and walked back to the group. Berke asked him for identification. Berke’s
     account of his second encounter with defendant was largely consistent with defendant’s.
¶5       Approximately one month later, the State was allowed to reopen its proofs on the motion
     to suppress evidence and called Eissens. Eissens testified that on October 9, 2009, he was on
     the “tact team,” which was a street team that dealt with “prostitution, guns, [and] drugs.” On
     the evening of October 9, he was riding with his partner at the time, Berke. He went on to
     identify various photographs in evidence.
¶6       After the evidence had been presented, defendant argued that there had been no
     foundation for Berke’s testimony that the substance in the plastic bag appeared to be
     cannabis. The court found that Berke’s search of defendant exceeded the scope of a Terry
     stop but would have been a proper search incident to arrest if there was probable cause. Thus,
     the court concluded that its ruling hinged on whether Berke’s testimony was sufficient to
     establish probable cause absent some foundation for his experience with cannabis. The State
     then moved to reopen the proofs, which was denied. Yet, the court continued the matter to
     allow the parties to research the foundation issue.
¶7       At the continued hearing, the trial court reviewed the case law and the evidence. The trial
     court stated that Berke’s testimony that the plastic bag appeared to contain cannabis was
     credible. However, it then concluded that there had to be some minimal foundation for the
     officer’s opinion that it was cannabis. On that basis, the court granted defendant’s motion to
     suppress. The State renewed its motion to reopen the proofs, and the court denied that
     motion. The State then moved for reconsideration, and the court denied that motion. The
     State timely appeals.
¶8       In reviewing a trial court’s ruling on a motion to suppress evidence, we apply the two-
     part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S.
     690, 699 (1996). “Under this standard, a trial court’s findings of historical fact should be
     reviewed only for clear error, and a reviewing court must give due weight to any inferences


                                              -3-
       drawn from those facts by the fact finder.” People v. Luedemann, 222 Ill. 2d 530, 542 (2006).
       “In other words, we give great deference to the trial court’s factual findings, and we will
       reverse those findings only if they are against the manifest weight of the evidence.” Id. “A
       reviewing court, however, remains free to undertake its own assessment of the facts in
       relation to the issues and may draw its own conclusions when deciding what relief should be
       granted.” Id. “Accordingly, we review de novo the trial court’s ultimate legal ruling as to
       whether suppression is warranted.” Id.
¶9          Defendant’s motion to suppress alleged that his arrest was done without probable cause.
       As a result of the lack of probable cause to arrest him, defendant argues, the subsequent
       seizure of marijuana, vodka, a gun, and cocaine from the search of his person and vehicle
       must also be suppressed. A warrantless arrest may be conducted by police officers if they
       have probable cause to believe that the person to be arrested has committed or is committing
       an offense. People v. Redman, 386 Ill. App. 3d 409, 420 (2008). Probable cause exists when
       the totality of the facts and circumstances known to the officers is such that a reasonably
       prudent person would believe that the suspect has committed or is committing a crime. Id.
       Whether probable cause exists is governed by common-sense considerations, and the
       calculation concerns the probability of criminal activity, not proof beyond a reasonable
       doubt. Id. Upon review, this court examines the events leading up to the arrest and decides
       whether the historical facts, viewed from the standpoint of an objectively reasonable police
       officer, support a finding of probable cause. Id. at 420-21.
¶ 10        In this case, the undisputed facts provide that: (1) Berke and Eissens were assigned to
       patrol the area of the Body Shop because it was a current “hot spot” for shootings and drug
       crimes; (2) defendant was in the driver’s seat of the car; (3) defendant denied he had
       identification; (4) there was an open bottle of Grey Goose vodka on the floorboard of the
       driver’s side of the car1; (5) there were several young men around the vehicle, a scene similar
       to a shooting that had occurred nearby the night before; (6) Berke saw a plastic bag of what
       appeared to be cannabis in the car, and he acknowledged later seizing the “green, leafy
       substance”; and (7) Eissens was part of the street “tact” team, which focused on drugs, guns,
       and prostitution, and he and his partner, Berke, were working on October 9. The trial court
       found that Berke’s testimony that the substance appeared to be cannabis was credible, and
       in light of the overall facts, we find no reason to reverse this factual finding.
¶ 11        We next consider de novo the trial court’s ultimate legal ruling as to whether suppression
       was warranted. Having found Berke credible, the trial court reluctantly granted defendant’s
       motion to suppress on the ground that Berke’s testimony lacked foundation. The State argues
       that it was not required to submit evidence of the officer’s experience and training regarding
       the identification of cannabis. We agree with the State. In People v. Symmonds, 18 Ill. App.
       3d 587, 591 (1974), a state trooper stopped the defendant’s car due to a headlight being out.


               1
                Although defendant was parked on private property, it was not unreasonable for Berke to
       suspect that defendant was recently on a roadway with the open bottle, which is a violation of the
       law (625 ILCS 5/11-502 (West 2010)). This is especially reasonable given that defendant stated he
       was on his way into the Body Shop, making it likely he had just arrived at the club.

                                                  -4-
       During the stop, the officer observed some beer cans on the floor behind the front seat and
       a plastic lid with a grass-like substance on the backseat. Id. The defendant was unable to
       produce identification and refused to tell the officer his age. Id. The officer then ascertained
       that the beer cans were empty and seized the grass-like substance, which he suspected was
       marijuana. Id. The defendant filed a motion to suppress, alleging that the officer’s search was
       illegal. Id. The trial court granted the defendant’s motion, finding that there had been no
       evidence before the court that the officer had any training or knowledge of what marijuana
       looked like and thus the officer did not have probable cause to seize the grass-like substance.
       Id. at 591-92. However, the trial court concluded that the officer had probable cause to
       ascertain whether the beer cans were empty, given that the defendant failed to produce
       identification and appeared underage, which made even the possession of the beer criminal.
       Id. The appellate court ultimately concluded that, because the officer had probable cause to
       arrest based on the defendant’s failure to produce a driver’s license and his possession of the
       beer cans, the seizure of the marijuana was legal. Id. at 592-93. However, the appellate court
       also stated that the trial court appeared to make a ruling in anticipation of a failure of the
       State to lay a foundation for the evidence at trial. Id. at 596. The appellate court stated:
           “The order suppressing the marijuana is not based on findings of an unlawful search (in
           fact, probable cause to search the car was found), but rather on the grounds the police
           officer had failed to explain why he believed the grass substance was marijuana to
           establish his basis for having probable cause to seize it, and this appears to be in
           anticipation of foundation as to relevance or competence required in order to introduce
           evidence at a trial rather than to the validity of the search and seizure.” Id. at 597.
¶ 12       Likewise, in this case, the trial court did not appear to base its ruling on whether the
       officer had probable cause to arrest defendant because of his observation of what appeared
       to be cannabis in his car, but rather on the lack of testimony as to why the officer believed
       that what he saw was cannabis. While an officer’s experience and training are relevant in a
       determination of whether an officer had probable cause to perform a search (People v. Smith,
       95 Ill. 2d 412, 419-20 (1983)), the absence of such testimony is not per se fatal to the
       determination of probable cause (People v. Jackson, 331 Ill. App. 3d 158, 164 (2002)). We
       find Symmonds and Jackson particularly persuasive, where in this case defendant never
       objected to Berke’s opinion that he believed the substance was cannabis. See also People v.
       Clark, 92 Ill. 2d 96 (1982) (holding that officer’s observation of what appeared to be
       cannabis leaves on floor of car was sufficient to establish probable cause to search the car
       and seize the evidence).2
¶ 13       Moreover, we find the trial court’s reliance on People v. Barker, 72 Ill. App. 3d 466
       (1979), and People v. Palanza, 55 Ill. App. 3d 1028 (1978), to be misplaced. In Palanza, the
       defendant argued that the information contained in the officer’s search warrant affidavit,


               2
                We reject defendant’s argument that the appellate opinion in People v. Clark, 98 Ill. App.
       3d 405 (1981), which sets forth that the officer testified to his experience and ability to identify
       cannabis, requires such foundation to be laid, as the supreme court did not deem it necessary to
       discuss such testimony in its opinion.

                                                   -5-
       which outlined what an informant told him, was insufficient to support probable cause to
       search the premises. Id. at 1030-31. The court agreed where the warrant was supported by
       uncorroborated and unsubstantiated representations by an unknown informant, citing that
       there was nothing in the affidavit to indicate that the informant had ever purchased cocaine
       from the defendant or who had told him that the defendant sold cocaine. Id. The affidavit
       simply stated that someone other than the defendant told the informant that the white powder
       he saw was cocaine. Id. at 1029. Unlike in Palanza, we are not dealing with a search warrant
       based on double hearsay of an unknown informant. The facts and holding of Palanza are
       therefore inapplicable to the case at bar.
¶ 14       In Barker, the officers were arresting the defendant on a traffic warrant when they
       observed in an ashtray two hand-rolled cigarette butts that they believed to contain cannabis.
       Barker, 72 Ill. App. 3d at 467. An officer then prepared a complaint for a search warrant in
       which he stated that he saw “ ‘two burned cigarette butts of hand rolled cigarettes which are
       believed to contain cannabis.’ ” Id. The court stated that, to conclude that the butts contained
       cannabis, the officer must have knowledge of underlying facts that substantiated his belief.
       Id. at 470. When issuing a warrant, the judge may not consider individual or extrajudicial
       knowledge to supplement the record and so the judge could not have considered the officer’s
       experience with identifying cannabis even had he known such facts. Id. at 471-72.
¶ 15       A valid warrant is issued only upon a showing of probable cause and is issued upon a
       complaint, usually supported by an affidavit. Id. at 468. Unlike in Palanza and Barker, a
       warrantless arrest and search are reviewed based on an evaluation of the facts and
       circumstances known to the officer and not on the four corners of a warrant. In this case,
       defendant had ample opportunity to cross-examine Berke and Eissens and to lodge any
       necessary objections to their testimony. The trial court was not confined to review the four
       corners of a warrant to determine whether probable cause existed to issue the warrant.
       Rather, the trial court was able to listen to the testimony of the witnesses and make its factual
       determinations, and in this case, the trial court found Berke to be credible. The trial court also
       had defendant’s motion to suppress and amended motion to suppress, neither of which took
       issue with Berke’s ability to identify the cannabis. As stated, Berke saw what appeared to be
       cannabis and an open bottle of vodka in defendant’s car, which was located in a specific area
       that Berke was assigned to watch because of recent drug and gun crimes. Additionally,
       defendant denied having identification and was in a group of young men, which was a scene
       similar to the description given of the previous night’s shooting in the area.
¶ 16       Further, unlike Barker, this case involves neither the sufficiency of a search warrant nor
       the ability to discern a legal hand-rolled cigarette from a cannabis-laden one, which might
       appear identical. Rather, Berke testified that he had retrieved the “green, leafy” substance,
       indicating that the cannabis was in its more natural state and not rolled in a cigarette. See
       People v. Dasenbrock, 96 Ill. App. 3d 625, 630 (1981) (recognizing that white powder can
       be more readily confused with nonnarcotic substances than natural-form cannabis, which is
       a “visually distinctive” plant); People v. Wright, 80 Ill. App. 3d 927, 931 (1980) (recognizing
       that seeing two hand-rolled cigarettes is insufficient grounds for probable cause where there
       is no evidence that officer had ability to distinguish them from ordinary cigarettes).
       “[A]lthough grass-like substances are not per se contraband, any grass-like substance which

                                                  -6-
       is precious enough to be collected and placed in plastic containers surely” contributes to
       probable cause. Symmonds, 18 Ill. App. 3d at 598; see also Sullivan v. District Court, 429
       N.E.2d 335, 339 (Mass. 1981) (stating, in dicta, that while true that many cases had implied
       that the seizing officer had training or experience in recognizing marijuana, the court had
       “never held, however, that an officer must have seen marihuana before to establish probable
       cause to seize it and we decline to adopt such an inflexible rule today”; court further agreed
       with Symmonds’ suggestion that finding grass-like substance that is precious enough to be
       placed in plastic containers was sufficient to give reasonable officer probable cause
       notwithstanding the fact that not every grass-like substance is contraband). Here, regardless
       of Berke’s specific training and experience with marijuana, it was not unreasonable for him
       to believe that the green, leafy substance secured in a plastic bag was marijuana and not some
       other, legal substance. Thus, in light of all the facts, we conclude that Berke had probable
       cause to arrest defendant.
¶ 17        For the sake of completeness, we address the State’s alternative argument that, even if
       it were required that Berke testify to his experience and training, defendant failed to timely
       object to Berke’s opinion on the ground that it lacked foundation. Because defendant failed
       to object, the State argues that he forfeited the objection and that Berke’s testimony was
       therefore admitted accordingly. We agree with the State.
¶ 18        “[W]hen a defendant procures, invites, or acquiesces in the admission of evidence, even
       though the evidence is improper, she cannot contest the admission on appeal.” People v.
       Bush, 214 Ill. 2d 318, 332 (2005). The supreme court in Bush explained that the defendant’s
       right is forfeited because “by acquiescing in rather than objecting to the admission of
       allegedly improper evidence, a defendant deprives the State of the opportunity to cure the
       alleged defect.” Id.; see also People v. Bynum, 257 Ill. App. 3d 502, 514-15 (1994)
       (defendant forfeited argument that the State failed to lay a proper foundation when he failed
       to timely object, which would have allowed the State a reasonable opportunity to correct the
       technical deficiency). Here, defendant never objected to Berke’s opinion and never
       mentioned it in his motion or amended motion to suppress. It was not until arguments after
       the court closed the evidence that defendant raised an issue with the foundation for Berke’s
       opinion. Contrary to defendant’s allegation that the State was attempting to “sandbag” him
       by requesting that the court reopen the proofs, we see the opposite as being true; it was
       defendant “sandbagging” the State by failing to give it the opportunity to cure the alleged
       defect and attempting to succeed on a procedural technicality. The court, having denied the
       State’s motion to reopen the proofs, should not have granted defendant’s motion on
       foundational grounds. The court determined that Berke was credible, and Berke testified that
       he saw a bag of what appeared to be cannabis in the car of a man who denied having
       identification, who had an open bottle of vodka, and who was in an area of town known for
       drug dealings and violence. We agree with the State that the court erred in basing its ruling
       on this foundational argument by defendant. Even if the foundation were necessary at this
       point in the proceedings, defendant’s failure to timely object would have forfeited the
       argument.
¶ 19        Further, if the trial court had wanted to consider defendant’s untimely objection, we
       would have found that it abused its discretion in denying the State’s motion to reopen the

                                                -7-
       proofs. “Illinois law generally recognizes the power of a trial court to allow a litigant to
       reopen his or her case in an appropriate circumstance.” People v. Canulli, 341 Ill. App. 3d
       361, 367 (2003). Even after the State has rested its case, the court has the discretion to allow
       it to put on additional evidence. Id. “The exercise of such discretion will not be reversed
       absent a clear showing of abuse.” People v. Berrier, 362 Ill. App. 3d 1153, 1163 (2006).
       Factors for the court to consider include “(1) whether the failure to introduce evidence
       occurred because of inadvertence; (2) surprise or unfair prejudice to the adverse party; (3)
       the importance of the new evidence to the movant’s case; and (4) whether cogent reasons
       exist to justify denying the request.” People v. Ruppel, 303 Ill. App. 3d 885, 894 (1999).
       Under the circumstances of this case, it would have been unfair not to allow the State to
       reopen the proofs to address this concern. Even if the State were required to introduce
       Berke’s background, defendant failed to make any timely objection to allow the State to do
       so. Given that it would have been simple for the State to correct the alleged technicality with
       no surprise or unfair prejudice to defendant, we see no cogent reason for the court to have
       denied the request.
¶ 20        For the aforementioned reasons, we reverse the judgment of the circuit court of
       Winnebago County and remand for further proceedings.

¶ 21      Reversed and remanded.




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