Appeal from Circuit Court of Livingston County Nos. 10CM352, 10DT94 Honorable Mark A. Fellheimer, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Turner
PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.
Justice Pope concurred in the judgment and opinion.
Justice Appleton dissented, with opinion.
¶ 1 In March 2011, the trial court found defendant, Ryan M. Price, guilty of driving under the influence (DUI), unlawful possession of drug paraphernalia, and unlawful possession of cannabis. The court sentenced him to 2 years of conditional discharge and 20 days in jail.
¶ 2 On appeal, defendant argues the trial court erred in denying his motion to suppress evidence and his motion to rescind the statutory summary suspension. We affirm.
¶ 4 On July 21, 2010, defendant received a ticket for DUI (625 ILCS 5/11-501(a)(4) (West 2010)) following a traffic stop. In August 2010, the State charged defendant with one count of unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)), alleging he knowingly possessed a glass marijuana smoking pipe with the intent to use the pipe in the inhalation of cannabis. The State also charged him with one count of unlawful possession of cannabis (720 ILCS 550/4(a) (West 2010)), alleging he knowingly possessed a substance containing cannabis. In September 2010, the State charged defendant with driving with an unlawful substance (tetrahydrocannabinol metabolite) in his urine (625 ILCS 5/11-501(a)(6) (West 2010)).
¶ 5 In September 2010, defendant filed a motion to quash arrest and suppress evidence regarding the traffic stop of his vehicle. On September 16, 2010, defendant was given notice of the summary suspension of his driving privileges. In October 2010, defendant filed a petition to rescind the statutory summary suspension. The trial court then conducted a hearing on both motions.
¶ 6 Fairbury police officer Evan Henkel testified he observed defendant driving a Dodge Caravan on July 21, 2010, between approximately 8 and 10 a.m. He first noticed the vehicle had a broken rear taillight on the driver's side. Henkel followed the vehicle and noticed "an air freshener hanging from the rearview mirror," which he had seen when he first saw the vehicle. Because of the broken taillight and the air freshener, Henkel executed a traffic stop. He guessed the air freshener was three inches in width and four to five inches in length. It was hanging from a string and the top was "approximately two or three inches below the bottom of the mirror." Henkel testified he had no specific training with regard to air fresheners and whether they constitute a material obstruction.
¶ 7 Officer Henkel requested defendant's driver's license and proof of insurance. After checking the materials, Henkel advised defendant he could smell burnt cannabis inside the vehicle. Defendant exited the vehicle and consented to a search of his person. Henkel did not find any contraband on him. A search of the vehicle revealed a substance resembling cannabis and paraphernalia.
¶ 8 On cross-examination, Officer Henkel testified he observed the air freshener hanging from the mirror "for a great deal of time" and also saw it swaying. Based on defendant's sitting position, Henkel testified the air freshener "would have to impair his ability to--obstruct his view." Henkel estimated there were a minimum of five times that defendant would have been required to look to his right, the same direction in which the air freshener obstructed his view.
¶ 9 When Officer Henkel asked defendant whether anybody had smoked in the vehicle, defendant stated his brother had smoked earlier in the day. Defendant later admitted the vehicle contained cannabis and/or paraphernalia. A search of the vehicle revealed a green leafy substance believed to be cannabis along with a glass smoking pipe containing residue. Defendant later admitted smoking cannabis less than an hour before the stop. Henkel placed defendant under arrest.
¶ 10 Defendant testified the "Yankee Candle" air freshener was about three inches wide and four inches long. He stated it hung from a string, and the top of the cardboard was approximately 1.5 inches from the bottom of the mirror. Defendant did not recall the air ...