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People v. Wombacher





APPEAL from the Circuit Court of Marshall County; the Hon. EDWARD E. HAUGENS, Judge, presiding.


Defendants Randall Wombacher and Kenneth Cline were charged with unlawful possession of cannabis and filed motions to suppress evidence. After a hearing on the merits, the circuit court of Marshall County granted the motions, and the State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1)).

At approximately 1:15 a.m. on June 8, 1981, Officer Charles Lohr, and another officer in a second vehicle, stopped at an intersection near a service station. While at the intersection he noticed a vehicle parked at the station, but finding nothing unusual about its presence, he proceeded on his patrol. After passing the area, however, he looked in his rear view mirror and noticed an individual walking toward the parked automobile. As there had been a number of recent thefts from vending machines, he made a U-turn and returned to the station. The other officer continued on.

Defendants had been waiting in the parked vehicle for its owner to return with the soft drinks he had stopped to purchase. When he returned and began to drive out of the station, Officer Lohr pulled into the station with his overhead lights flashing. The driver then stopped, and both he and the officer got out of their automobiles. Officer Lohr recognized the driver and asked him what he was doing at the station. After he explained that he had stopped for some soft drinks, the officer walked over to the vehicle and shined his flashlight into its interior. Noticing defendants, one of whom he also recognized, and the presence of smoke, he drew nearer to the automobile to detect any odor which might have been emanating from within. At trial, Officer Lohr testified that, based upon his past experience in the performance of his duties, it was his belief the smoke had been produced by burning cannabis. While other officers arrived at the scene, none corroborated his opinion.

Defendants were then ordered out of the vehicle, and it was searched. Finding nothing therein, Officer Lohr ordered defendants to step up against the automobile to be searched. According to defendant Wombacher, the officer found two devices used to smoke cannabis. Officer Lohr testified that he also found a small amount of cannabis. At this time, both defendants were arrested and taken to the Marshall County jail. Once there, cannabis was discovered on the persons of both defendants.

Presented for our review is the issue of whether the uncorroborated testimony of a police officer that he smelled cannabis smoke is sufficient to establish probable cause to justify a warrantless search. This issue has been most recently addressed in People v. Argenian (1981), 97 Ill. App.3d 592, 423 N.E.2d 289. In that case an officer had been dispatched to investigate a traffic accident. During his ensuing investigation, he became aware of an odor, which based upon his experience and police instruction he believed was produced by burning cannabis, emanating from the defendant's automobile. The officer proceeded with a warrantless search of the vehicle and found a handgun in the glove compartment, but no cannabis. He subsequently determined that the odor came from a pipe containing regular pipe tobacco. In affirming the trial court's suppression of the handgun, the court noted that the officer's testimony was not corroborated in any way by any other testimony or evidence and explained:

"To hold otherwise would be to give an unlimited license to any police officer to search any and all vehicles merely on his uncorroborated testimony that he was an expert marijuana sniffer and that he smelled marijuana in the car. That testimony could conveniently be used to justify any search at any time whether or not there was marijuana on the premises and whether or not the officer was a qualified expert or was honestly mistaken or actually lying. More is required." People v. Argenian (1981), 97 Ill. App.3d 592, 594, 423 N.E.2d 289, 290.

The State contends Argenian should be confined to its facts and that it is not representative of the case law of this State. We disagree.

• 1 The former contention is implicitly premised on the fact the search in Argenian revealed no cannabis, while the search at bar did. It is axiomatic that the legality of a search is not determined by its results. People v. Peak (1963), 29 Ill.2d 343, 194 N.E.2d 322.

The latter contention stems from a series of decisions beginning with People v. Erb (1970), 128 Ill. App.2d 126, 261 N.E.2d 431. Erb involved an investigation of an automobile parked on a bridge in apparent violation of two traffic laws. When the officer asked its driver for identification, he smelled the odor of burning cannabis. He then placed the driver and a passenger under arrest, searched them, and discovered a pistol. The defendants had exited the vehicle shortly before the police arrived and had been standing on the shoulder of the road. One defendant was asked to empty his pockets, after which the officer reached into the defendant's jacket pocket and discovered cannabis. The other defendant was seen tossing something toward a ditch which was subsequently found and identified as cannabis.

While Erb is cited by the State as authority for the proposition that the uncorroborated testimony of an officer that he smelled burning cannabis establishes probable cause justifying a warrantless search, the facts of that case do not frame the issue. While the court found the smell of contraband, under proper circumstances, is a basis for believing a crime is being committed, it carefully explained the reasons for the finding of probable cause:

"[I]t was reasonable for Deputy Neuman to meanwhile keep defendants, Erb and Weiss, under observation, as persons who had alighted from the car just previously and remained in the vicinity of it. While it is true that the finding of a weapon on the person of one of the other passengers justified a pat-down search of Weiss, Officer Ory was not confined herein to such a limited search because the smell of marijuana that he observed to emanate from the car and Weiss's person afforded him sufficient probable cause to believe a crime had just been or was being committed. The officers were not obliged to assume that Weiss had emptied everything from his pockets and were reasonably justified in making the further search. Officer Neuman's report to Ory as to defendant Erb's suspicious movements and the finding of the packet near her, gave probable cause for her detention and search." (People v. Erb (1970), 128 Ill. App.2d 126, 134, 261 N.E.2d 431, 434-35.)

It can thus be seen that the "proper circumstances" in the case included the discovery of a weapon and the suspicious movements. We also note that two traffic violations had been committed.

Following Erb, cannabis was again held to have been discovered in a legal search in People v. Wolf (1973), 15 Ill. App.3d 374, 304 N.E.2d 512, aff'd (1975), 60 Ill.2d 230, 326 N.E.2d 766, cert. denied (1975), 423 U.S. 946, 46 L.Ed.2d 280, 96 S.Ct. 361. In that case, an automobile was stopped as it had only a single license plate attached only by a wire. Thinking that this suggested the vehicle might have been stolen, the officer opened the driver's door to check the vehicle identification number on the doorpost and smelled cannabis smoke. He then asked another officer to come to the vehicle to verify his opinion. In People v. Loe (1973), 16 Ill. App.3d 291, 306 N.E.2d 368, the police officer stopped a vehicle with only one license plate and noticed a passenger reach down and duck from view. The driver left the vehicle in a hurried manner and the officer, after smelling the odor of cannabis, ordered the passenger out of the vehicle. When the door opened, a cannabis cigarette "roach" was in plain view on the floor. In People v. Smith (1978), 67 Ill. App.3d 952, 385 N.E.2d 707, the defendant was observed speeding and then driving in an erratic manner. The officer followed his vehicle, and when defendant accelerated to 70 miles per hour in a 35-mile-per-hour zone, the officer stopped him. When he asked the name of a ...

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