People v. Boyd
State: Illinois
Court: 4th District Appellate
Docket No: 4-98-0077
Case Date: 09/18/1998
NO. 4-98-0077
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign
County
GREGORY A. BOYD, ) No. 97CF1435
Defendant-Appellee. )
) Honorable
) John R. DeLaMar,
) Judge Presid
ing.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In October 1997, the State charged defendant, Gregory
A. Boyd, with possession of a substance containing cannabis (more
than 2.5 grams but less than 10 grams) and possession of a
controlled substance with intent to deliver (1 gram or more but
less than 15 grams of a substance containing cocaine) (720 ILCS
550/4(b), 570/401(c)(2) (West 1996)). In November 1997, defen-
dant filed a motion to suppress the evidence that formed the
basis for the cocaine charge against him. In January 1998, the
trial court conducted a hearing on that motion and granted it.
The State appeals, and we reverse and remand with directions.
I. BACKGROUND
At the January 1998 hearing on defendant's motion to
suppress, the parties stipulated to the facts set forth in the
police reports, which showed the following. On the evening of
October 15, 1997, Champaign police officers Walton and Alvis were
on routine patrol when they saw a maroon car fail to completely
stop at a stop sign. When the officers tried to catch up with
the car, "it accelerated as if the [three] occupants meant to
elude" the officers. The car then pulled into a parking lot and
stopped. Alvis' report indicated that the car's occupants
"immediately attempted to exit the vehicle as it stopped," and he
and Walton ordered them to remain in the vehicle. Walton's
report indicated as follows:
"As the vehicle rounded the corner, it
hastily pulled into a parking spot. All the
occupants immediately jumped out.
As Officer Alvis and [I] approached the
vehicle, we advised the occupants to return
to the vehicle. From their demeanor, and
their nervous mannerisms, I was convinced
that they intended to flee on foot."
Walton identified defendant as the backseat passenger.
Both Alvis and Walton approached the car. As Walton
came within four feet of the passenger's side of the car, he
smelled "the extreme odor of burned cannabis." (The parties
stipulated to Walton's training and ability to identify the
smells of both fresh and burning cannabis.) As Alvis approached
the driver's side, he smelled "a strong odor of burnt cannabis."
Police sergeant Scott Swan and Officer Walker responded
to Alvis and Walton's call for assistance. Walker's report indi-
cated, in relevant part, as follows:
"As I reached the vehicle, I could smell a
very strong odor of cannabis [e]mitting from
within the vehicle. As I opened the passen-
ger side back door and asked the passenger
[later identified as defendant] to exit[] the
vehicle, I smelled a stronger odor of canna-
bis from within the vehicle."
Swan's report indicated that as he approached the car, he "could
smell the odor of burnt marijuana."
At Walton's request, Walker asked defendant to get out
of the vehicle and began attempting to search him "for any con-
trolled substances." Defendant got out of the car but refused to
place his hands on the car so that Walker could search him.
Walker placed defendant in handcuffs to complete the search.
During the search, Walker "located a small plastic baggie con-
taining a green leafy substance" (subsequently determined to be
cannabis) in defendant's right sock. He also located a "plastic
baggie" which "contained several other smaller plastic baggies,
tied in knots, to secure a[n] off-white in color substance"
(subsequently determined to be crack cocaine) in defendant's left
sock. (This evidence formed the basis for the cocaine possession
charge against defendant.)
While the other officers were searching the occupants,
Swan searched the car. He found a "baggie containing suspected
cannabis" under the driver's seat. (This evidence was the basis
for the cannabis possession charge against defendant; it is not
at issue in this appeal.)
After hearing counsel's arguments and considering the
evidence, the trial court granted defendant's motion. The court
found that (1) when the officers approached the car after lawful-
ly stopping it, the occupants were still in the car; (2) the
officers thus had no need to detain the occupants to determine
who was driving; and (3) the officers had no officer safety
concerns that authorized them to order defendant, who was a
passenger, to remain in the car. The court stated, in relevant
part, as follows:
"It's extremely difficult to resolve
these factual matters based on [police] re-
ports. They are inconsistent in my estima-
tion, inconsistent in some pretty critical
aspects, but I will respect the agreements of
the parties and do my best. Now I believe
that the law provides this. Number one, the
original stop of the vehicle was quite proper
and valid. *** With regard to what follows
next, there are circumstances under which a
police officer who has stopped a vehicle for
a traffic violation can order passengers to
remain or order passengers to step out, one
[of the reasons] is if the officer feels
that's necessary for his or her own safety.
That's not advanced as a reason here. In
fact, there is no specific articulable reason
advanced here to justify whichever happened.
According to one police officer's report[,
the occupants] were told to stay in the car.
According to another [report], they were told
to get back in the car, and there is a dif-
ference. *** If, in fact, the police ar-
rived at a point where they could clearly
identify who the driver was, unless they were
for some reason concerned with their own
safety, and there is no suggestion that they
were, then I believe [defense counsel] is
correct; then the passengers had a right to
walk away. *** However, if, in fact, all of
the occupants of the vehicle had already
exited the vehicle so that the police could
not tell with certainty who the driver was,
then, of course, they have every right under
[Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968),] and the codification
of our *** code of criminal procedure to stop
them and ascertain who is the driver. ***
Obviously if the occupants are still getting
out of the vehicle, it's pretty obvious who
the driver was and the rationale for stopping
and detaining the two passengers can only be,
as I understand the case law, officer protec-
tion, concern for the safety of the officer.
Otherwise, they have the right to walk away.
Unfortunately, it's very difficult to resolve
that in these reports because both officers
who wrote reports [(Alvis and Walton)] and
whose reports are not consistent in that
regard had an equal opportunity to observe.
They are the two officers who conducted the
traffic stop and were on the scene. One of
them has the three occupants completely out
of the vehicle; the other one has [the occu-
pants] starting to get out and told to stop.
*** [T]he burden is on the State to estab-
lish, under my analysis, that, in fact, [de-
fendant] and the other occupants were already
out [of] the vehicle so the officers had to
stop them to determine who was the driver,
since, again, officer safety is not advanced
as a reason for this. The State has not met
its burden." (Emphasis added.)
The trial court thus determined that because the occu-
pants were not yet outside of the car, the officers had no
authority to order defendant to remain in the car or prevent him
from walking away from the scene. The court also found that,
assuming the occupants were already out of the car when the
officers arrived, the officers had authority to detain the occu-
pants and determine who was driving; however, the smell of
burning cannabis emanating from the car gave the officers proba-
ble cause to search only the car and its driver, but not defen-
dant.
II. ANALYSIS
The State argues that the trial court erred by granting
defendant's motion to suppress. We agree.
The trial court's ruling on a motion to suppress is
generally entitled to great deference, and this court will not
disturb it on review unless we conclude it is against the mani-
fest weight of the evidence. People v. Bradley, 292 Ill. App. 3d
208, 210, 685 N.E.2d 426, 427 (1997). We fully accept the trial
court's factual findings in this case; however, we conclude that
the court's decision granting the defendant's motion to suppress
was erroneous as a matter of law.
In People v. Ricksy, 206 Ill. App. 3d 302, 306-07, 564
N.E.2d 256, 259 (1990), this court wrote the following:
"We suggest the following analytical
approach for trial courts to use when decid-
ing motions to suppress evidence. When, as
here, the evidence before the court reveals a
series of interactions between the police and
a person who is being stopped or searched,
the court's analysis should be as finely
divided as possible to distinguish among the
various stages of that interaction."
Following the analytical approach we suggested in Ricksy, we
conclude that the trial court's factual findings (based on the
stipulated evidence presented at the hearing on defendant's
motion to suppress) raise the following distinctive questions:
(1) Did the police officers lawfully stop the maroon car? (2)
Assuming that stop was lawful, did the officers lawfully order
defendant (a passenger) to remain in the car--and subsequently to
exit the car? (3) Assuming those orders were lawful, did the
officer lawfully search defendant? We will analyze these issues
in turn.
Initially, we note that defendant concedes that Alvis
and Walton's initial stop of the car was valid. He also concedes
that the officers could lawfully order defendant to exit the
vehicle. See Maryland v. Wilson, 519 U.S. ___, ___, 137 L. Ed.
2d 41, 48, 117 S. Ct. 882, 886 (1997) (a police officer may, as a
matter of course, order passengers of a lawfully stopped vehicle
to exit the vehicle).
A. Did the Officers Lawfully Order Defendant
To Remain in the Car?
In Wilson, the United States Supreme Court addressed
the question of the authority of a police officer who, as here,
has lawfully stopped a vehicle to order the passengers to get out
of the car. The Court wrote the following:
"[In Pennsylvania v. Mimms, 434 U.S.
106, 54 L. Ed. 2d 331, 98 S. Ct. 330 (1977),
the Court explained] that '[t]he touchstone
of our analysis under the Fourth Amendment is
always "the reasonableness in all the circum-
stances of the particular governmental inva-
sion of a citizen's personal security,"'
[citations], and that reasonableness `depends
"on a balance between the public interest and
the individual's right to personal security
free from arbitrary interference by law offi-
cers,"' [citations]. ***
* * *
We must therefore now decide whether the
rule of Mimms [in which the Court held that a
police officer may, as a matter of course,
order the driver of a lawfully stopped car to
exit his vehicle] applies to passengers as
well as to drivers. On the public interest
side of the balance, the same weighty inter-
est in officer safety is present regardless
of whether the occupant of the stopped car is
a driver or a passenger. Regrettably, traf-
fic stops may be dangerous encounters. In
1994 alone, there were 5,762 officer assaults
and 11 officers killed during traffic pur-
suits and stops. [Citation.] In the case of
passengers, the danger of the officer's
standing in the path of oncoming traffic
would not be present except in the case of a
passenger in the left rear seat, but the fact
that there is more than one occupant of the
vehicle increases the possible sources of
harm to the officer.
On the personal liberty side of the bal-
ance, the case for the passengers is in one
sense stronger than that for the driver.
There is probable cause to believe that the
driver has committed a minor vehicular of-
fense, but there is no such reason to stop or
detain the passengers. But as a practical
matter, the passengers are already stopped by
virtue of the stop of the vehicle. The only
change in their circumstances which will
result from ordering them out of the car is
that they will be outside of, rather than
inside of, the stopped car. Outside the car,
the passengers will be denied access to any
possible weapon that might be concealed in
the interior of the passenger compartment.
It would seem that the possibility of a vio-
lent encounter stems not from the ordinary
reaction of a motorist stopped for a speeding
violation, but from the fact that evidence of
a more serious crime might be uncovered dur-
ing the stop. And the motivation of a pas-
senger to employ violence to prevent appre-
hension of such a crime is every bit as great
as that of the driver.
We think that our opinion in Michigan v.
Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101
S. Ct. 2587 (1981), offers guidance by analo-
gy here. There the police had obtained a
search warrant for contraband thought to be
located in a residence, but when they arrived
to execute the warrant they found Summers
coming down the front steps. The question in
the case depended `upon a determination
whether the officers had the authority to
require him to re[]enter the house and to
remain there while they conducted their
search.' [Citation.] In holding as it did,
the Court said:
'Although no special danger to the
police is suggested by the evidence
in this record, the execution of a
warrant to search for narcotics is
the kind of transaction that may
give rise to sudden violence or
frantic efforts to conceal or de-
stroy evidence. The risk of harm
to both the police and the occu-
pants is minimized if the officers
routinely exercise unquestioned
command of the situation.' [Cita-
tion.]
In summary, danger to an officer from a
traffic stop is likely to be greater when
there are passengers in addition to the driv-
er in the stopped car. While there is not
the same basis for ordering the passengers
out of the car as there is for ordering the
driver out, the additional intrusion on the
passenger is minimal. We therefore hold that
an officer making a traffic stop may order
passengers to get out of the car pending
completion of the stop." Wilson, 519 U.S. at
___, 137 L. Ed. 2d at 46-48, 117 S. Ct. at
884-86,
Thus, Wilson stands for the proposition that a police
officer who has made an otherwise lawful stop of a vehicle may--
without more--order passengers to get out of the car. The situa-
tion presented in this case differs only slightly--namely,
defendant, a passenger, was ordered to remain in the lawfully
stopped vehicle.
On the public interest side of the balance, we conclude
that the "same weighty interest in officer safety" is present
regardless of whether the officer orders a passenger who is
seated in a lawfully stopped vehicle to get out of the car or
remain in the car. See Wilson, 519 U.S. ___, 137 L. Ed. 2d 41,
117 S. Ct. 882. The officer's concern for his safety is nonethe-
less heightened by the presence of more than one occupant in the
vehicle.
On the personal liberty side of the balance, we con-
clude that the intrusion on the passenger who is ordered to
remain in a lawfully stopped car is no more burdensome--and
perhaps less so--than the passenger who is ordered to get out of
the car. In particular, we note that the passenger who is
ordered to remain in the vehicle will not be exposed to either
the elements or the full view of the public. Consistent with the
Supreme Court's holding in Wilson, we hold that a police officer
may lawfully order passengers in a lawfully stopped vehicle to
remain in the vehicle. To hold otherwise could lead to anomalous
results, and we believe it would be illogical to allow a police
officer to order a passenger out of a lawfully stopped vehicle,
but not to allow the officer to order such a passenger to remain
in the vehicle.
In so holding, we note that we do not have before us
the question of whether a police officer may forcibly detain a
passenger for the entire duration of the traffic stop. Defendant
here was not subjected to a lengthy detention based on the lawful
stop of the car; instead, defendant was searched and formally
arrested once the officers approached the car and smelled burning
cannabis (which occurred moments after the officers told defen-
dant to remain in the car). See Rawlings v. Kentucky, 448 U.S.
98, 111 & n.6, 65 L. Ed. 2d 633, 645-46 & n.6, 100 S. Ct. 2556,
2564 & n.6 (1980) (a search may be conducted immediately prior to
the arrest and need not take place subsequent to it).
Even assuming that defendant and the other occupants of
the car had already gotten out of the car and begun to walk away
when the officers exited their patrol car, we nonetheless hold--
consistent with the Supreme Court's holdings in Wilson and Sum-
mers (Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340, 101 S.
Ct. 2587 (1981))--that a police officer may lawfully order
passengers who have exited a lawfully stopped vehicle to get back
in the car. Such a situation is comparable to the situation pre-
sented in Summers, in which officers executing a search warrant
for narcotics in a residence found the defendant walking down the
front steps of the residence. Summers, 452 U.S. at 693, 69 L.
Ed. 2d at 343-44, 101 S. Ct. at 2589. The Supreme Court held
that the officers had authority to require the defendant to
reenter the residence and remain there during the search. In so
holding, the Supreme Court wrote the following: "The risk of
harm to both the police and the occupants is minimized if the
officers routinely exercise unquestioned command of the situa-
tion." Summers, 452 U.S. at 702-03, 69 L. Ed. 2d at 350, 101 S.
Ct. at 2594. The same risk of harm and need to exercise "unques-
tioned command of the situation" are present in a situation in
which an officer lawfully stops a vehicle and the occupants
immediately get out of the car.
We note that we are not presented with--and therefore
do not address--the situation in which a passenger has already
walked away from a lawfully stopped vehicle prior to the
officer's ordering him to return to the scene. The police
reports here indicate--at most--that (1) Walton saw defendant and
the other occupants jump out of the car as soon as it stopped and
begin walking away; (2) Walton believed the occupants "intended
to flee on foot"; and (3) the officers immediately ordered the
occupants to get back in the car.
B. Did the Police Officer Lawfully Search Defendant?
Probable cause exists when "facts exist that would lead
a reasonable person standing in the shoes of the police officers
to conclude that a crime has been committed and the defendant was
the person who committed the crime." People v. Robinson, 167
Ill. 2d 397, 405, 657 N.E.2d 1020, 1025 (1995). The totality of
the circumstances analysis must be based upon both factual and
commonsense considerations. People v. Adams, 131 Ill. 2d 387,
396-97, 546 N.E.2d 561, 565 (1989).
In People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498
(1985), a police officer testified that he detected the odor of
burning cannabis in a vehicle he had just stopped for a traffic
violation. Without any further basis, he searched the driver of
that car and found a vial of cocaine. On the defendant's motion,
the trial court suppressed the cocaine on the ground that the
odor of burning cannabis coming from the defendant's vehicle did
not give the arresting officer sufficient probable cause to
conduct a warrantless search of the driver. Stout, 106 Ill. 2d
at 81-82, 477 N.E.2d at 500. The appellate court affirmed the
trial court's suppression of the cocaine, but the supreme court
reversed and wrote the following:
"Police officers often must act upon a
quick appraisal of the data before them, and
the reasonableness of their conduct must be
judged on the basis of their responsibility
to prevent crime and to catch criminals.
* * *
This court has held that distinctive
odors can be persuasive evidence of probable
cause. A police officer's detection of con-
trolled substances by their smell has been
held to be a permissible method of establish-
ing probable cause. ***
*** Based on the particular facts of
this case, including the officer's experience
and training in the detection of controlled
substances, we find that probable cause ex-
isted to justify the warrantless search."
(Emphasis added.) Stout, 106 Ill. 2d at 86-
87, 477 N.E.2d at 502-03.
In People v. Strong, 215 Ill. App. 3d 484, 490, 574
N.E.2d 1271, 1275 (1991), this court held that a police officer's
detection of the odor of burning cannabis emanating from a
lawfully stopped vehicle provided probable cause to search both
the driver and the car. See also People v. Houldridge, 117 Ill.
App. 3d 1059, 1064, 454 N.E.2d 769, 772 (1983) (where this court
held that an officer's detection of the odor of cannabis smoke
emanating from a lawfully stopped vehicle provided probable cause
for a warrantless search of the car).
Consistent with the holdings of Stout, Strong, and
Houldridge, we hold that the officers' detection of the odor of
burning cannabis emanating from the lawfully stopped maroon car
provided the officers with probable cause to search defendant,
who was a passenger in the car. To hold otherwise would lead to
the illogical conclusion that when a trained police officer
detects the odor of a burning controlled substance emanating from
a lawfully stopped vehicle he can search only the driver and not
the other occupants of the car even though the smell was emanat-
ing from the enclosed space of the vehicle in which all occupants
were present. See People v. Pittman, 216 Ill. App. 3d 598, 603,
575 N.E.2d 967, 970 (1991) ("If two or more persons share the
immediate and exclusive control or share the intention and the
power to exercise control over a thing, then each person has
possession").
In support of our holding, we note that other courts
have held that a police officer's detection of the odor of
burning cannabis emanating from a lawfully stopped vehicle gave
the officer probable cause to search and arrest all occupants of
the vehicle for possession of a controlled substance. See
Brunson v. State, 327 Ark. 567, 572, 940 S.W.2d 440, 442 (1996)
(officer's detection of the odor of burning cannabis or its smoke
emanating from the vehicle gave the officer reasonable cause to
believe that the occupants had been or were committing an offense
inside the vehicle); State v. Hammond, 24 Wash. App. 596, 600,
603 P.2d 377, 380 (1979) (odor of burning cannabis gave officer
probable cause to arrest backseat passenger for possession); see
also State v. Mitchell, 167 Wis. 2d 672, 684, 482 N.W.2d 364,
368-69 (1992) (officer's detection of burning cannabis and smoke
emanating from the vehicle together gave the officer probable
cause to believe that the driver, his passenger, or both had been
smoking, and thus possessing, cannabis).
III. CONCLUSION
In closing, we commend the trial court for employing
the analytical approach this court suggested in Ricksy during the
hearing on defendant's motion to suppress, which we found help-
ful.
For the reasons stated, we reverse the trial court's
judgment granting defendant's motion to suppress, and we remand
for further proceedings consistent with the views expressed
herein.
Reversed and remanded with directions.
GARMAN, P.J., and COOK, J., concur.
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