The opinion of the court was delivered by: Justice Steigmann delivered the opinion of the court
Appeal from Circuit Court of Champaign County No. 97CF1435
Honorable John R. DeLaMar, Judge Presiding.
In October 1997, the State charged defendant, Gregory A. Boyd, with possession of a substance containing cannabis (more than 2.5 grams but less than 10 grams) and possession of a controlled substance with intent to deliver (1 gram or more but less than 15 grams of a substance containing cocaine) (720 ILCS 550/4(b), 570/401(c)(2) (West 1996)). In November 1997, defendant filed a motion to suppress the evidence that formed the basis for the cocaine charge against him. In January 1998, the trial court conducted a hearing on that motion and granted it. The State appeals, and we reverse and remand with directions.
At the January 1998 hearing on defendant's motion to suppress, the parties stipulated to the facts set forth in the police reports, which showed the following. On the evening of October 15, 1997, Champaign police officers Walton and Alvis were on routine patrol when they saw a maroon car fail to completely stop at a stop sign. When the officers tried to catch up with the car, "it accelerated as if the [three] occupants meant to elude" the officers. The car then pulled into a parking lot and stopped. Alvis' report indicated that the car's occupants "immediately attempted to exit the vehicle as it stopped," and he and Walton ordered them to remain in the vehicle. Walton's report indicated as follows: "As the vehicle rounded the corner, it hastily pulled into a parking spot. All the occupants immediately jumped out. As Officer Alvis and [I] approached the vehicle, we advised the occupants to return to the vehicle. From their demeanor, and their nervous mannerisms, I was convinced that they intended to flee on foot." Walton identified defendant as the backseat passenger.
Both Alvis and Walton approached the car. As Walton came within four feet of the passenger's side of the car, he smelled "the extreme odor of burned cannabis." (The parties stipulated to Walton's training and ability to identify the smells of both fresh and burning cannabis.) As Alvis approached the driver's side, he smelled "a strong odor of burnt cannabis."
Police sergeant Scott Swan and Officer Walker responded to Alvis and Walton's call for assistance. Walker's report indicated, in relevant part, as follows: "As I reached the vehicle, I could smell a very strong odor of cannabis [e]mitting from within the vehicle. As I opened the passenger side back door and asked the passenger [later identified as defendant] to exit the vehicle, I smelled a stronger odor of cannabis from within the vehicle." Swan's report indicated that as he approached the car, he "could smell the odor of burnt marijuana."
At Walton's request, Walker asked defendant to get out of the vehicle and began attempting to search him "for any controlled substances." Defendant got out of the car but refused to place his hands on the car so that Walker could search him. Walker placed defendant in handcuffs to complete the search. During the search, Walker "located a small plastic baggie containing a green leafy substance" (subsequently determined to be cannabis) in defendant's right sock. He also located a "plastic baggie" which "contained several other smaller plastic baggies, tied in knots, to secure a[n] off-white in color substance" (subsequently determined to be crack cocaine) in defendant's left sock. (This evidence formed the basis for the cocaine possession charge against defendant.)
While the other officers were searching the occupants, Swan searched the car. He found a "baggie containing suspected cannabis" under the driver's seat. (This evidence was the basis for the cannabis possession charge against defendant; it is not at issue in this appeal.)
After hearing counsel's arguments and considering the evidence, the trial court granted defendant's motion. The court found that (1) when the officers approached the car after lawfully stopping it, the occupants were still in the car; (2) the officers thus had no need to detain the occupants to determine who was driving; and (3) the officers had no officer safety concerns that authorized them to order defendant, who was a passenger, to remain in the car. The court stated, in relevant part, as follows: "It's extremely difficult to resolve these factual matters based on [police] reports. They are inconsistent in my estimation, inconsistent in some pretty critical aspects, but I will respect the agreements of the parties and do my best. Now I believe that the law provides this. Number one, the original stop of the vehicle was quite proper and valid. *** With regard to what follows next, there are circumstances under which a police officer who has stopped a vehicle for a traffic violation can order passengers to remain or order passengers to step out, one [of the reasons] is if the officer feels that's necessary for his or her own safety. That's not advanced as a reason here. In fact, there is no specific articulable reason advanced here to justify whichever happened. According to one police officer's report[, the occupants] were told to stay in the car. According to another [report], they were told to get back in the car, and there is a difference. *** If, in fact, the police arrived at a point where they could clearly identify who the driver was, unless they were for some reason concerned with their own safety, and there is no suggestion that they were, then I believe [defense counsel] is correct; then the passengers had a right to walk away. *** However, if, in fact, all of the occupants of the vehicle had already exited the vehicle so that the police could not tell with certainty who the driver was, then, of course, they have every right under [Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968),] and the codification of our *** code of criminal procedure to stop them and ascertain who is the driver. *** Obviously if the occupants are still getting out of the vehicle, it's pretty obvious who the driver was and the rationale for stopping and detaining the two passengers can only be, as I understand the case law, officer protection, concern for the safety of the officer. Otherwise, they have the right to walk away. Unfortunately, it's very difficult to resolve that in these reports because both officers who wrote reports [(Alvis and Walton)] and whose reports are not consistent in that regard had an equal opportunity to observe. They are the two officers who conducted the traffic stop and were on the scene. One of them has the three occupants completely out of the vehicle; the other one has [the occupants] starting to get out and told to stop. *** [T]he burden is on the State to establish, under my analysis, that, in fact, [defendant] and the other occupants were already out [of] the vehicle so the officers had to stop them to determine who was the driver, since, again, officer safety is not advanced as a reason for this. The State has not met its burden." (Emphasis added.)
The trial court thus determined that because the occupants were not yet outside of the car, the officers had no authority to order defendant to remain in the car or prevent him from walking away from the scene. The court also found that, assuming the occupants were already out of the car when the officers arrived, the officers had authority to detain the occupants and determine who was driving; however, the smell of burning cannabis emanating from the car gave the officers probable cause to search only the car and its driver, but not defendant.
The State argues that the trial court erred by granting defendant's motion to suppress. We agree.
The trial court's ruling on a motion to suppress is generally entitled to great deference, and this court will not disturb it on review unless we conclude it is against the manifest weight of the evidence. People v. Bradley, 292 Ill. App. 3d 208, 210, 685 N.E.2d 426, 427 (1997). We fully accept the trial court's factual findings in this case; however, we conclude that the ...