Appeal from the Circuit Court of Winnebago County. No. 09-CF-3200 Honorable John R. Truitt, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and 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.
¶ 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 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 car*fn1 ; (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. 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 ...