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People v. Topor

Court of Appeals of Illinois, Second District

March 28, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
v.
TYLER W. TOPOR, Defendant-Appellee.

         Appeal from the Circuit Court of Boone County. No. 15-CF-110 Honorable C. Robert Tobin III, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice McLaren concurred in the judgment and opinion.

          OPINION

          JORGENSEN JUSTICE

         ¶ 1 The State appeals from the judgment of the circuit court of Boone County granting defendant Tyler W. Topor's motion to quash his arrest and suppress evidence. Because an identified citizen informant reported, via 911, the smell of burnt cannabis coming from defendant's vehicle, the police had reasonable suspicion to stop defendant's vehicle. Thus, we reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was indicted on one count of unlawful possession with intent to deliver a controlled substance (codeine) within 1000 feet of a senior housing complex (720 ILCS 570/401(d), 407(b)(2) (West 2014)), one count of unlawful possession of a controlled substance (acetaminophen/codeine) (720 ILCS 570/402(c) (West 2014)), one count of unlawful possession with intent to deliver a controlled substance (alprazolam) within 1000 feet of a senior housing complex (720 ILCS 570/401(g), 407(b)(5) (West 2014)), one count of unlawful possession of a controlled substance (alprazolam) (720 ILCS 570/402(c) (West 2014)), and one count of unlawful possession with intent to deliver cannabis (720 ILCS 550/5(c) (West 2014)). Defendant filed a motion to quash his arrest and suppress evidence.

         ¶ 4 The following evidence was established at the hearing on the motion to quash and suppress. On the evening of May 29, 2015, Officer Todd Moore of the Belvidere police department was parked in his squad car within sight of a McDonald's restaurant on Chrysler Drive. He was talking with Detective Robert Kozlowski of the Belvidere police department, who was sitting in his police vehicle next to Officer Moore's.

         ¶ 5 At about 10:44 p.m., Officer Moore received a radio dispatch. The dispatcher advised that a citizen had called 911 and reported that, while he was seated in his truck in the McDonald's drive-up lane on Chrysler Drive, the smell of cannabis was coming from the vehicle immediately behind him. The caller described the vehicle as a silver Ford with the words "Harvard Ford Courtesy Car" on each of its front doors. The caller also provided the license plate number and reported that there were two occupants in the Ford.

         ¶ 6 As Officer Moore drove toward the McDonald's, the dispatcher advised him that the caller, who was still on the line, could see the Ford facing the opposite direction of Officer Moore's squad car at an intersection. As the Ford passed him, Officer Moore turned to follow it. When the Ford pulled up to a gas pump at a nearby gas station, Officer Moore pulled in behind it and activated his emergency lights.[1] Shortly thereafter, Detective Kozlowski arrived.

         ¶ 7 When Officer Moore approached the Ford, defendant, who was driving, was smoking a cigarette. Officer Moore told defendant that he had received a complaint that someone in the Ford was smoking cannabis. According to Officer Moore, he thought that he could smell, in addition to the cigarette, "burning cannabis but [he] was unsure" because of the wind direction. Detective Kozlowski, who had approached the Ford on the passenger side (downwind), told Officer Moore that he could smell burnt cannabis. Based on his drug training and prior investigations, Detective Kozlowski was familiar with the smell of burnt cannabis.

         ¶ 8 After Detective Kozlowski told him about the cannabis smell, Officer Moore had defendant step out of the Ford. For safety reasons, he patted down defendant, handcuffed him, and placed him in the squad car. Officer Moore then approached the Ford and saw, through the open driver's-side door, prescription pill bottles and a clear plastic baggie containing "green leafy plant material." Based on his police training and experience, he believed that the substance in the baggie was cannabis.

         ¶ 9 The trial court issued a written decision granting the motion to quash and suppress. The court found that the citizen informant was not sufficiently reliable to justify the stop of defendant's vehicle, because the record did not show that the informant was familiar with the smell of cannabis. The court then granted the State's motion to reopen the proofs so the court could listen to the 911 recording.

         ¶ 10 The 911 caller stated that the occupants of the vehicle behind him at the McDonald's were smoking "some massive pot" and that it was "freakin' reekin' like hell in [his] truck." After the dispatcher informed the caller that an officer was en route, the caller stated that the Ford was at a light facing north and that a squad car was on the opposite side of the intersection facing south. The caller provided the license plate number of the Ford. The caller also gave his full name and telephone number.

         ¶ 11 After considering the 911 call, the trial court reiterated its decision to grant the motion to quash and suppress. After the court denied the State's motion to reconsider, the State filed a certificate of impairment (see Ill. ...


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