People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08)

Officer sees passenger riding low in the seat and thinks it may be a guy wanted on warrant, turns out it wasn’t him.

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Issue

Defendant filed a motion to suppress evidence of the cocaine found in the car, arguing the officer did not have reasonable suspicion for the stop and, alternatively, probable cause to search defendant’s car.

Trial judge grants the motion, in part, because the officer had no other corroborating evidence of identification.

Gist

Defendant was the driver of the car.

The car, however, was stopped because of a mistaken identity of the passenger.

The State charged the driver with unlawful possession of a substance containing less than 15 grams of cocaine.

Resolution

The court concluded the officer did nothing wrong. The constitution does not require perfection. The car was legally stopped even though the traffic stop was based on a mistaken identity.

After the stop, the officer was legally entitled to engage the occupants. When he did he realized the man was not who he thought he was, but he also noticed the odor of cannabis.

At that point, the search of the car was legally justified.

Passenger Riding Low

Officer sees a Chevrolet Monte Carlo quickly decelerated such that traffic began to back up.

As the car drove by the officer, he noticed the passenger was reclined in the car with his head mostly obstructed by the side panel, where the seatbelt is attached, referred to by the officer as the “B panel.”

The officer then drove from his parked location in order to get a better look at the passenger. It was his experience that people wanted on warrants or concerned about rival gang members frequently ride in the same manner he was observing in order to remain concealed.

“Ain’t He Wanted On A Warrant?”

When he pulled up next to the vehicle, he was able to see the hair, face, skin tone, and apparent build of the passenger and believed him to be a person he knew to be wanted on a traffic warrant.

He was able to see the entire left side of the passenger’s head and neck when he pulled up alongside defendant’s car on the driver’s side. He believed the person to be a wanted man.

This was based on the hair, face, skin tone, and apparent build of the person he observed in defendant’s vehicle.

The officer was familiar with the wanted man from previous observations of him on the street throughout his time as a police officer, as well as his practice of keeping current on persons wanted on warrants.

He explained he did this by regularly reviewing the department’s records of wanted people in Decatur and then viewing the most recent photos the Decatur Police Department had on those individuals.

Gonna Stop This Car

While waiting for a backup vehicle to arrive on the scene, the officer followed the vehicle.

He traveled approximately 30 blocks from when he first saw the car until it was ultimately stopped. It took some time to catch up to the car from his parked position, and believing the passenger to be wanted on a warrant he wanted another police vehicle in the vicinity before confronting the man.

In addition, he noted that once he activated his lights to effectuate the stop, it took several blocks for the car to actually come to a stop.

In his experience, when this occurs during a traffic stop, the occupants of the vehicle may be concealing or attempting to conceal or destroy contraband. In such instances, he said, one of the most serious concerns is whether an occupant is seeking to retrieve a weapon.

Car Is Stopped

Once a backup squad car was near, the officer initiated a stop of defendant’s vehicle. Approaching from the passenger side, he asked the passenger to identify himself and step out of the vehicle.

Immediately upon making contact with the passenger, smelled the odor of “raw” cannabis.

“What I Do Wrong?”

Upon being asked by defendant, the driver, what defendant did wrong, on the in-car video stipulated into evidence, the officer said,

“I thought the passenger was wanted, is why I stopped you, that’s why I stopped you.”

Directing his attention­ to the passenger, the officer Baker stated,

“Actually, to tell you the truth, I thought you were somebody else.”

Within a matter of approximately 15 seconds, the officer tells the occupants he could smell raw cannabis in the car and said he observed a “bud” in the back seat.

Defendant Out The Car And The Car Searched

After another police car arrived, defendant was asked to exit the vehicle and, after being patted down, to sit on the curb next to the car.

A search of the vehicle produced an unspecified amount of cannabis, described as being “much less than a pound or an ounce.” In addition, the officers found “a small rock that tested positive for crack cocaine” under the driver’s seat. Again, the specific amount was not identified.

Fourth Amendment

“The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.’ ” Terry v. Ohio, 392 U.S. 1, 8 (1968).

The fourth amendment of the United States Constitution focuses on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”

Investigative Stop

“A police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9. The standard for a stop is “reasonable, articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “Although ‘reasonable, articulable suspicion’ is a less demanding standard than probable cause, an officer’s suspicion must amount to more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Timmsen, 2016 IL 118181, ¶ 9 (quoting Terry, 392 U.S. at 27).

Although clearly “seizures,” traffic stops are more like Terry investigative detentions than formal arrests and therefore may be reasonable if initially justified and reasonably related in scope to the circumstances that justified the interference in the first place.

Reasonableness Is The Standard

“Reasonable suspicion determinations must be made on commonsense judgments and inferences about human behavior.” Timmsen, 2016 IL 118181, ¶ 14. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002).

In determining if there was reasonable suspicion for the stop, there is no bright-line rule, but instead the court is to consider the “totality of the circumstances of each case.” Timmsen, 2016 IL 118181, ¶ 18.

No Unlawful Behavior Required

We do not have to surmise whether the actions of the vehicle or occupants were objectively suspicious.

In fact, the defendant was apparently doing nothing illegal, other than perhaps rapidly decelerating once the marked police car was observed.

This is because the basis for the stop was the result of an objective fact completely removed from the activity. The stop was based on an outstanding arrest warrant for a person whose appearance was found by the trial court to be “actually quite similar” to the passenger.

See also People v. Safunwa, 299 Ill. App. 3d 707, 710, 701 N.E.2d 1202, 1204 (1998) (where the court found defendant did not resemble the photograph of the fugitive police thought was in the vehicle they stopped).

This Case

Here it must be noted the trial court had determined the appearance of the passenger and suspect wanted on a warrant were “quite similar.”

The behavior observed by the officer of ducking down serves only to buttress the reasonableness of his suspicion. Had the passenger actually been the wanted man, that fact alone would have justified the stop.

Therefore, the officer reasonably believed the passenger to be wanted on a warrant.

People v. Cummings

In Cummings, 2016 IL 115769, a traffic stop based on an outstanding warrant for the female owner of the vehicle, although initially valid, was rendered in violation of the fourth amendment once the officer approached the van and observed the driver to be a man.

See Episode 131.

In explaining the rationale for its ruling, the Supreme Court noted that although before the stop the officer had determined the registration he initially believed to be expired was, in fact, valid, since he learned of the outstanding arrest warrant for the female owner and could not determine whether the driver was a female, the officer had a “reasonable suspicion” that the driver was subject to seizure.

In that case, the only factor making the initial stop valid was the unknown sex of the driver. No other traffic violation had been committed. After remand, the court still­ permitted the ordinary inquiries of checking for license and registration in spite of the fact that his reasonable suspicions disappeared as soon as he saw the driver was a male.

Just Like In Cummings In This Case…

Even if this officer eventually, determined the passenger was not the man wanted on a warrant. The officer was still justified in continuing to engage with the car passengers to determining basic information.

Hill v. California, Another Case of Mistaken Identity

Hill v. California, 401 U.S. 797 (1971), was a clear case of mistaken identity.

Police had probable cause to arrest person A, they reasonably mistook person B for person A, and they arrested person B.

The Supreme Court concluded that, so long as the police had a “reasonable, good-faith belief” the person arrested was the one wanted on the warrant, the arrest was justified. Hill, 401 U.S. at 802.

This Case

Here, we are not talking about a full-blown arrest but merely the “brief detention” inherent in an investigatory traffic stop to check the identification of someone in the vehicle. “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 536 (2014).

“The limit,” they said, “is that ‘the mistakes must be those of reasonable men.’” Heien, 574 U.S. at ___, 135 S. Ct. at 536. (recall that Heien expanded the doctrine of mistake of fact into what it called reasonable mistakes of law).

The mistaken fact in this case was the actual identity of the passenger. Even the trial court agreed the passenger looked very similar to the person wanted on a warrant and concluded the officer was acting in good faith at the time of the stop.

Here the court is not called upon to assess the basis for the officer’s suspicions regarding a person’s behavior. It was simply a matter of “this looks like the guy I know to be wanted on a warrant.”

More Analysis

The trial court found the officer’s belief to be in good faith.

Where the trial court erred was in finding the officer either needed to be certain in his identification or be able to point to other corroborating evidence. This is not a situation involving the need for probable cause.

The only question before the court in such a case is whether the officer was reasonable in his belief that the person he saw was the one wanted on the warrant. The Supreme Court has said “certainty” is not required, thereby addressing the first basis upon which the trial court granted the suppression motion.

Remember All Those Improper Lane Usage Cases

See Episode 572 – People v. Mueller, 2018 IL App (2d) 170863 (December) (Jeep touches he traffic lines 3 times and gets stopped, reasonable?)

In these cases may or may not have committed improper lane use (ILU).

• People v. Hackett, 2012 IL 111781,  ¶ 9
• People v. Smith, 172 Ill. 2d 289, 297 (1996)
• People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and
• People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

See Also

• Episode 232 – People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)
• Episode 434 – People v. Lomeli, 2017 IL App (3d) 150815 (December)(Traffic Stop Based On Dangling Rosary Is Legal)
• Episode 142 – People v. Little, 2016 IL App (3d) 130683 (February)(Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

Although stops may frequently be supported by the classic “probable cause” necessary for arrest, the less exacting standard of “reasonable, articulable suspicion” is also sufficient.

A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Must Be Reasonable Mistakes

Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.

Brinegar v. United States, 338 U.S. 160, 176 (1949)

Nonetheless Corroboration Not Needed

We do not believe there is a specific legal requirement articulated by any published Illinois case requiring an officer under these circumstances to be able to point to some “corroborative facts” other than his reasonable suspicion.

He Was Certain Enough

(1) In the case before us, the trial court had the additional facts of the unusual driving behavior upon seeing the marked squad car, along with the seating of the passenger to consider. These were relevant to the officer and buttressed his suspicion the passenger was, in fact, the wanted person he quite similarly resembled.

(2) In addition, the trial court had available to it the subsequent actions of the officer before effectuating the stop. He called for backing up.

(3) Further, when viewing the photographs, the trial court concluded they were very similar.

Plus There Was That Odor…

Defendant argues that smelling cannabis cannot create probable cause because Illinois decriminalized marijuana possession under 10 grams.

We disagree.

Marijuana possession remains unlawful.

As the First District stated in In re O.S., 2018 IL App (1st) 171765, ¶ 29, 112 N.E.3d 621, “decriminalization is not synonymous with legalization.”

In People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985), our supreme court said an officer has probable cause to conduct a search of a vehicle if he smells the odor of a controlled substance coming from the vehicle and it is shown he has the necessary training and experience to detect controlled substances.

This law remains unchanged.

Fresh v. Burnt

In People v. Smith, 2012 IL App (2d) 120307, 982 N.E.2d 234, the Second District addressed the issue of “fresh” versus “burnt” cannabis and found no basis for distinguishing the two when determining whether the smell may form the basis for probable cause for a police officer’s subsequent search. In Smith, the officer testified, as he approached the driver’s side of the vehicle, he smelled “a slight odor of cannabis” coming from inside the vehicle, which he said smelled “fresh.”

The court considered the language of Stout, quoted above, and found, as do we, there was no modifier preceding cannabis and there was no reasonable basis to limit its holding only to “burnt” cannabis. Smith, 2012 IL App (2d) 120307, ¶ 16. The Smith court pointed to a long list of cases outside Illinois involving raw versus burnt cannabis in which “the smell of marijuana [is] alone sufficient to furnish probable cause to search a vehicle without a warrant.” (Internal quotation marks omitted.) Smith, 2012 IL App (2d) 120307, ¶ 19. 

See Also

• Episode 556 – The Best Reason To Change The “Smell Of Cannabis” Rule
• Episode 509 – Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search
• Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
• Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident
• Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search
• Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law
• Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Cannabis Consistent With Crime

The State noted the court in O.S. found that even in Colorado, where possession of an ounce of cannabis has been legalized, not merely decriminalized, the state supreme court still considers the odor of marijuana to be relevant to a probable cause determination and can support an inference that a crime is ongoing, even though possession of an ounce or less is legal.

We find their reasoning just as applicable here because a “substantial number of other marijuana-related activities remain unlawful.” People v. Zuniga, 2016 CO 52, ¶ 23, 372 P.3d 1052. It was for that reason they concluded “the odor of marijuana is still suggestive of criminal activity.” Zuniga, 2016 CO 52, ¶ 23.

True You Can’t Determine Quantity From The Smell

Defendant provides no rationale for requiring police officers to somehow ascertain the quantity of marijuana before the search in order to determine whether probable cause exists. In fact, such a requirement would be unworkable and contrary to the current body of law.

It would lead to an absurd result where police officers, after performing a traffic stop, smelled the odor of cannabis emanating from the vehicle but could not investigate it further unless they knew the amount involved. Here, as the trial court concluded, the search was clearly justified upon establishing probable cause for the search.

The Odor Of Cannabis Justified The Search Of The Car

Once Officer Baker smelled the odor of cannabis, probable cause for the search existed.

The fact that he almost immediately observed cannabis in plain view was merely an added bonus.

Holding

Having concluded the suspicions of the officer were reasonable under the circumstances, the trial court’s decision to grant the motion to suppress due to a lack of certainty as to the identity of the passenger or lack of other corroborative facts was erroneous in that it placed an additional burden on the officer seeking to effectuate such a stop for which we can find no support in the law.

We reverse and remand for further proceedings consistent with this opinion.