Appeal from the Circuit Court of Lake County. No. 11-CM-1289 Honorable Joseph R. Waldeck, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Jorgensen and Spence concurred in the judgment and opinion.
¶ 1 Defendant, Louis M. Smith, was charged with unlawful possession of cannabis (720 ILCS 550/4(b) (West 2010)) and unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)). He moved to suppress evidence that the arresting officer obtained after a traffic stop. The trial court granted the motion, holding that the officer's testimony that he smelled the odor of fresh cannabis did not provide the probable cause needed to extend the stop and search the vehicle. The State appeals. We reverse and remand.
¶ 2 At the hearing on defendant's motion, the sole witness was Antioch police officer Ari Briskman. On direct examination, he testified as follows. His training included recognizing the odor of burnt cannabis. In his 41/2 years as an officer, he had smelled the odor of burnt cannabis about 200 times and the odor of fresh cannabis more than 100 times. On March 25, 2010, at about 6:08 p.m., he stopped a car because its windshield was cracked. Defendant was driving and had one passenger. As Briskman approached the driver's side of the car, he smelled "a slight odor of cannabis" coming from inside. The cannabis smelled "fresh." Briskman based his conclusion on his training and experience in detecting the odor of fresh cannabis.
¶ 3 Briskman testified that, after he obtained defendant's identification and proof of insurance, he returned to his squad car, ran license checks on defendant and the passenger, then returned to defendant's car. At Briskman's direction, defendant exited the car. Briskman explained to defendant that he had smelled fresh cannabis coming from the car, and he asked defendant's consent to search. Defendant refused to consent. Briskman then said that he would be calling a K-9 unit to "conduct a sniff" of the car's exterior and would also be issuing defendant traffic citations. At Briskman's direction, defendant reentered the car.
¶ 4 Briskman testified that he returned to his squad car, requested the K-9 unit, and started processing the traffic citations. He was still completing them when the K-9 unit arrived. Briskman had defendant and his passenger step out as the dog sniffed the car's exterior. After the dog alerted to the driver's side, Briskman searched the car. Below the driver's seat was a prescription-pill bottle that contained wadded-up tissues; a green, leafy substance that smelled of fresh cannabis; and a pipe that smelled of burnt cannabis. The odors were consistent with those that Briskman had smelled before. Based on his training and experience, he concluded that the green leafy substance was cannabis and that the pipe was used to smoke cannabis.
¶ 5 Briskman testified on cross-examination as follows. When he returned to his squad car, he wrote up the traffic citations, completed a racial profiling data form, and "add[ed] notes to the call on the computer." These routine steps normally take "anywhere from 10 to 15 minutes." The pill bottle that he found had "tissues wadded at the top of it."
¶ 6 A video played at the hearing showed that Briskman stopped defendant's car at 6:07 p.m. At about 6:15 p.m., he requested consent to search the car and defendant refused. Immediately afterward, Briskman started to write up the citations. At 6:45 p.m., the K-9 unit began the drug sniff.
¶ 7 In arguments, the State contended that the initial traffic stop had been valid and that Briskman's detection of the odor of fresh cannabis, which he recognized from his experience, provided probable cause to search the car. The State argued that, under People v. Stout, 106 Ill. 2d 77 (1985), Briskman's testimony did not need corroboration. Defendant responded that, although the initial stop had been proper, Briskman had unduly prolonged it beyond the time needed to process the traffic offense. See People v. Cosby, 231 Ill. 2d 262, 275-76 (2008). Defendant noted that, according to the video, the K-9 unit did not arrive until 30 minutes after Briskman started processing the traffic citations, which regularly takes only 10 to 15 minutes. Disputing the State's assertion that Briskman's detection of the odor of cannabis provided probable cause, defendant contended that, had Briskman really believed that he smelled cannabis, he would have searched the car immediately instead of requesting the K-9 unit. The State replied that Briskman's subjective belief was legally irrelevant; objectively, the odor of cannabis provided probable cause, allowing Briskman to detain defendant longer than was needed to process the traffic offense.
¶ 8 In granting defendant's motion, the trial judge explained that Briskman had lacked the probable cause needed to extend the stop and to search the car. The judge distinguished Stout as "deal[ing] with burnt cannabis," which Briskman had not initially smelled. The judge did not appear to question Briskman's credibility or to discredit his testimony that, based on his experience, he had detected the odor of fresh cannabis coming from within defendant's car. The trial court denied the State's motion to reconsider. The State appeals (see Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2006)).
¶ 9 On appeal, the State contends that the trial court erred in distinguishing Stout on the basis that Stout addresses the odor of burnt cannabis and therefore does not apply here, as Briskman based his search on what he perceived as the odor of raw (or "fresh") cannabis. The State asserts that, although Stout did involve a search based on the odor of burnt cannabis, its rationale applies equally to one based on the odor of raw cannabis. For the following reasons, we hold that Stout does apply here, necessitating the reversal of the suppression order.
¶ 10 In reviewing a ruling on a motion to suppress, we defer to the trial court's findings of fact, which we must accept unless they are against the manifest weight of the evidence, but we consider de novo the ultimate question of whether the search was constitutional. People v. McDonough, 239 Ill. 2d 260, 265-66 (2010). The evidence at the hearing was undisputed, and it does not appear that the trial judge discredited Briskman's testimony in any way. Because the court's ruling was based solely on its refusal to extend Stout to a given set of facts, this appeal presents a question of law, which we review de novo.
¶ 11 We begin our analysis with Stout. There, the undisputed evidence at the hearing on the defendant's motion to suppress revealed the following. Officer Eakle stopped the defendant for a traffic offense. As Eakle stood near the rolled-down window of the driver's door, he detected the odor of burning cannabis. Eakle testified at the hearing that his training and experience as a police officer (and as a college student) had enabled him to recognize the odor of burning cannabis. A warrantless search of the car turned up other controlled substances, and the defendant was charged with possessing them. Stout, 106 Ill. 2d at 80-82. He moved to suppress the evidence, arguing that Eakle had lacked probable cause for the search. Id. at 81. The trial court held that Eakle's uncorroborated testimony that he smelled the odor of burning cannabis did not provide the probable cause needed for the search. The trial ...