Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Richard Eagleton, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Defendant, Robert L. Stout, was charged by indictment with two counts of unlawful possession of controlled substances, cocaine and codeine, pursuant to section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(b)). After a hearing in the circuit court of Peoria County, the trial court judge granted Stout's pretrial suppression motion. In a Rule 23 order (87 Ill.2d R. 23), the appellate court affirmed the circuit court (122 Ill. App.3d 1166). The State's petition for leave to appeal was subsequently granted by this court.
The facts of the case are uncontested. At approximately 12:20 a.m., while on his routine patrol, Officer Stephen Eakle saw the defendant make an illegal turn in his automobile. After the officer signaled the defendant to stop, the defendant pulled over to the curb and exited his car. The defendant met Eakle halfway between his car and Eakle's vehicle. Eakle advised the defendant that he had been stopped for an illegal right turn, and the defendant displayed his driver's license upon Eakle's request.
At this time, Eakle observed that two passengers remained in the defendant's car. He approached the defendant's car, intending to check the two passengers in order to ensure his own safety. While standing near the driver's door through which Stout had just passed, Eakle noticed that the window was nearly all the way down, and Eakle testified that he detected the odor of burning cannabis. A subsequent warrantless search of the defendant by Eakle produced a vial of cocaine and several codeine capsules.
The defendant filed a motion to suppress the substances on the ground that the officer lacked probable cause to conduct the search. At the hearing on the defendant's motion to suppress, Eakle testified that his earlier training and experience as a police officer had enabled him to recognize the odor of burning cannabis. Eakle testified to the following: (1) that during a training session, he had smelled the odor of a burning confiscated substance later confirmed to be cannabis; (2) that he had also smelled the odor of burning substances, later confirmed by forensic scientists as cannabis, on "numerous other occasions" during his seven-year employment as a patrol officer; and (3) that he had smelled the odor of cannabis in college.
The trial court granted the defendant's motion to suppress the evidence. In so ruling, the trial judge specifically found that "the police officer (Eakle) was credible." The trial judge went on to state that the only basis for allowing the motion to suppress was his interpretation of People v. Wombacher (1982), 104 Ill. App.3d 812, and People v. Argenian (1981), 97 Ill. App.3d 592. The trial judge also suppressed statements made by the defendant following the search as the "fruit of the poisonous tree."
The appellate court, in affirming the trial court's decision, also placed complete reliance on Wombacher and Argenian. It is from this decision that the State now appeals.
The sole issue before this court is whether the detection of the odor of cannabis emanating from the defendant's vehicle gave the arresting officer probable cause to conduct a warrantless search.
Although this court has not directly dealt with this issue in the past, it has been dealt with by districts of the appellate court of this State. However, there has been a lack of uniformity in the appellate court's decisions in this area of the law. We will, therefore, begin our analysis with a brief overview of the six appellate court opinions which have dealt with the issue at bar.
In the fifth district case of People v. Smith (1978), 67 Ill. App.3d 952, a police officer stopped the defendant for a traffic violation. The officer testified that, as he approached the defendant's car to ascertain the identity of the passenger in the car, he bent down at the open car door and smelled the odor of burned marijuana and alcohol emanating from the interior. The officer stated that he was trained and experienced in detecting these odors.
Prior to trial, the defendant filed a motion to suppress the evidence which he alleged was illegally seized. At the conclusion of the suppression hearing, the trial judge denied the defendant's motion. In affirming the circuit court, the appellate court held that the police officer's "detection of the smell of marijuana and alcohol gave him a reasonable basis to believe that a crime was being committed in his presence thus justifying under the circumstances a warrantless search of the automobile." 67 Ill. App.3d 952, 960.
In another fifth district case, People v. Laird (1973), 11 Ill. App.3d 414, the defendant was stopped by a police officer for exceeding the speed limit. When the defendant opened the door to his car, the officer detected the odor of burning cannabis. He then searched the defendant and the defendant's car, at which time he found cannabis.
The appellate court agreed with the lower court's holding that the detection of the odor of cannabis emanating from the defendant's vehicle gave the officer probable ...