2018 IL App (1st) 171765
No. 1-17-1765
SECOND DIVISION
June 26, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
In re O.S., a minor, ) Appeal from the Circuit Court
) of Cook County.
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) Nos. 17 JD 662, 17 JD 155
)
v. )
) The Honorable
O.S., ) Stuart F. Lubin,
) Judge Presiding.
Respondent-Appellant). )
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Hyman concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial conducted in accordance with the Juvenile Court Act of 1987
(705 ILCS 405/1-1 et seq. (West 2016)), minor respondent O.S. 1 was adjudicated delinquent of
the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and
committed to the Department of Juvenile Justice for an indeterminate period of time. On appeal,
respondent contests his delinquency adjudication, arguing (1) the circuit court erred in denying
his pretrial motion to suppress and (2) the State failed to prove him delinquent of the offenses
1
To better preserve the privacy of minor respondent, this court has elected not to identify his first
name and instead will simply use his initials or refer to him as “respondent.” This court has also changed
the caption of this case to reflect this decision.
1-17-1765
beyond a reasonable doubt. For the reasons explained herein, we affirm the judgment of the
circuit court.
¶2 BACKGROUND
¶3 On January 18, 2017, during the course of an encounter with Chicago police officers,
minor respondent was found to be in possession of a firearm. The State subsequently filed a
petition for adjudication of wardship against respondent in connection with those events. In the
filing, the State alleged that respondent was
“delinquent by reason of the following facts:
On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of
CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the
offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-
named minor knowingly carried on or about his or her person, a firearm, at a time when
he was not on his own land, or in his own abode, or a fixed place of business, and the
person possessing the firearm has not been issued a currently valid Firearm Owner’s
Identification Card (Section (3)(c)), this being a Class 2 felony as the Minor-Respondent
has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.
On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of
CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the
offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-
named minor knowingly carried on or about his or her person a firearm, at a time when
he was not on his own land, or in his own abode, or a fixed place of business, and the
person possessing the weapon was under 21 years of age and in possession of a handgun
as defined in Section 24-3, unless the person under 21 is engaged in lawful activities
-2-
1-17-1765
under the Wildlife Code, this being a Class 2 felony as the Minor-Respondent has
previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.
On or about January 18, 2017, in violation of SECTION 24-3.1(a)(1) of ACT 5 of
CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the
offense of UNLAWFUL POSSESSION OF FIREARMS, in that the above-named minor,
being a person under 18 years of age, knowingly had in his possession a firearm of a size
which may be concealed upon the person.”
¶4 Respondent, in turn, filed a motion to quash his arrest and suppress evidence, arguing that
he was unlawfully detained and searched absent a warrant, probable cause, or reasonable
suspicion that he was armed or engaged in criminal activity, in contravention of his
constitutional rights. The circuit court subsequently presided over a hearing on respondent’s
motion.
¶5 At the hearing, respondent testified that at approximately 9 p.m. on January 18, 2017, he
was in the company of his cousin Max and his friend Kevin. The three young men were seated in
Kevin’s vehicle, which was idling in front of an apartment building located near the intersection
of Lotus and Wellington Avenues. Respondent was seated in the front passenger seat, and Max
was in the backseat. Respondent explained that they were waiting for a friend who lived at that
apartment building to join them. The car was stopped parallel to the curb, approximately five feet
from the intersection. Because of the cold temperature, the windows of the car were rolled up,
and Kevin kept the car running as they waited. In addition, Kevin activated his vehicle’s hazard
lights. Respondent denied that anyone was smoking marijuana in the vehicle that evening. He
specifically denied that anyone was smoking marijuana as the car was idling in front of the
apartment building.
-3-
1-17-1765
¶6 Respondent estimated that Kevin’s car had been idling in front of the apartment building
for approximately three minutes when a grey “detective car” pulled up alongside of them. The
law enforcement vehicle then maneuvered “diagonally in front of” Kevin’s car and activated its
emergency lights. Three police officers then exited the vehicle and approached and surrounded
Kevin’s car. Respondent explained that one of the officers stood in front of Kevin’s car, the
second approached the driver’s side door, and the third approached the front passenger-side door.
Kevin provided his license and registration in response to an officer’s request. The officer
standing on the passenger side of the vehicle then used his illuminated flashlight to tap the
window and request that respondent lower the window. Respondent complied with the officer’s
request. After this brief interaction, the officers subsequently opened the doors of Kevin’s
vehicle and ordered the young men out of the car. As soon as respondent exited the vehicle, one
of the officers conducted a pat down of his person. During the course of the pat down, the officer
recovered a handgun from the right pocket of respondent’s jacket. Respondent confirmed that he
had been concealing the gun in his jacket pocket.
¶7 Respondent testified that he did not feel free to leave at any time during the encounter
with the police officers. He explained that the officers essentially “jumped out of nowhere” and
surrounded and “trapped” them.
¶8 On cross-examination, respondent admitted that he was unable to recall the name of the
friend who he, Max, and Kevin were waiting for that evening. He was also unable to recall
whether his cousin Max had a “blunt” tucked behind his ear. Respondent, however, denied that
there were remnants of burnt cannabis in the backseat of Kevin’s vehicle. Respondent was also
unable to recall whether Kevin’s vehicle had been stopped in a no parking zone. Upon being
shown a photograph of the intersection of Lotus and Wellington, respondent acknowledged that
-4-
1-17-1765
there was a no parking sign located where Kevin’s vehicle had been stopped on the evening of
January 18, 2017. Respondent, however, did not recall observing the sign that evening. He did
recall observing a stop sign at the intersection of Lotus and Wellington and estimated that
Kevin’s vehicle was stopped approximately “five feet away” from that intersection. Finally,
respondent was unable to recall whether his cousin was also arrested that evening after the police
officers recovered marijuana and cocaine from his person.
¶9 Following respondent’s testimony, his attorney rested. Chicago police officer Jason
Cloherty was called upon to testify on behalf of the State. Officer Cloherty testified that on the
evening of January 18, 2017, he was a member of a three-person tactical team. Officer Rodriguez
and Officer Ramos were the other members of the team. At approximately 9 p.m., the three
officers were patrolling the 5400 block of West Wellington in an unmarked vehicle. He
explained that they were patrolling that area because there had been reports of shots fired in that
general vicinity during the previous three or four nights. Officer Cloherty testified that he was
seated in the backseat of the vehicle and had his window “cracked.” As the officers were
traveling westbound on Wellington, Officer Cloherty “smelled the odor of cannabis.” Officer
Cloherty explained that cannabis has a distinctive smell and that he was familiar with that smell
as a result of his frequent exposure to the drug during his years as a police officer. Upon smelling
the distinctive odor, he looked to his immediate right and observed a Lexus sport utility vehicle
(SUV) stopped in a no parking zone. Officer Cloherty knew the vehicle was in a no parking zone
because there was a street sign that designated the area as such.
¶ 10 After observing the Lexus parked in a no parking zone and smelling the odor of cannabis,
Officer Cloherty alerted Officer Rodriguez, who was driving the unmarked car, and directed him
to “put a stop [t]here.” Officer Rodriguez stopped the vehicle, and the officers then approached
-5-
1-17-1765
the Lexus. Officer Cloherty testified that he approached the front passenger side of the vehicle,
while Officer Rodriguez approached the driver’s side of the vehicle. Officer Rodriguez then
began speaking to the driver through the lowered driver’s side window, and it became apparent
that the odor of cannabis was emanating from inside the Lexus. Officer Cloherty then requested
respondent to lower the front passenger side window, and respondent complied. After respondent
rolled down the window, Officer Cloherty used his flashlight to illuminate the interior of the
Lexus. He observed another young man situated in the backseat of the vehicle. That young man
“had a hand-rolled cigar with cannabis [tucked behind] his ear.” After smelling marijuana and
observing the blunt tucked behind the rear passenger’s ear, Officer Cloherty and his partners
ordered all of the passengers out of the vehicle. Officer Cloherty testified that he opened the
front passenger side door so that respondent could exit the vehicle. When he opened
respondent’s door, he observed respondent reach his hand into his right jacket pocket and stand
up. Officer Cloherty immediately instructed respondent “not to do that” and then put his own
hand “on that pocket” and “felt a gun.” He explained that he handles a handgun every day and
has made “a lot” of gun-related arrests. As such, he was eminently familiar with the shape and
feel of handguns. Officer Cloherty recovered the handgun from respondent’s person. He
identified the gun as a semiautomatic, black .22-caliber Beretta loaded with six live rounds and
one in the chamber. Officer Cloherty then handcuffed respondent. He testified that other
contraband was subsequently recovered from the Lexus, including a “partially smoked hand-
rolled cigar with cannabis inside it.”
¶ 11 On cross-examination, Officer Cloherty acknowledged that at the time the officers
encountered the Lexus on October 18, 2017, they did not have any type of warrant for the
vehicle or any of the occupants of that vehicle. He also acknowledged that Officer Rodriguez
-6-
1-17-1765
parked their unmarked police vehicle in a manner that “blocked” the Lexus. He confirmed that
the Lexus’s windows were all raised when police initially approached the car. Officer Cloherty
further acknowledged that he did not observe any smoke in the vehicle or any marijuana or
marijuana paraphernalia on respondent’s person at any time during the encounter. He denied that
he drew his weapon at any time during the encounter.
¶ 12 Upon the conclusion of Officer Cloherty’s testimony, the State rested, and the parties
then argued their respective cases. The circuit court, after hearing the aforementioned testimony
and the arguments of the parties, denied respondent’s motion to quash his arrest and suppress
evidence. The court explained its rationale in open court as follows:
“[Respondent] testified that on January 18th, he was on his way to pick up a friend.
He was a passenger in the car in the front seat. They parked in front of the building at
approximately 5400 West Wellington. The car was running. The windows were up.
[Respondent] denied that there was any cannabis smoking or that any cannabis had been
smoked in the car, and frankly, the facts of the case lead me to believe that that’s not a
credible statement because the passenger had a blunt behind his ear and another burned
blunt was recovered from the vehicle. [Respondent] testified that a car pulled up on the
side of them and then parked diagonally in front of their car. He didn’t deny that there
was a blunt behind Max’s ear. He just couldn’t recall if there was one. That was
[respondent’s] testimony. He did deny that there was a blunt with burned cannabis in the
rear seat, but that was recovered by the police. He testified that [the officers] asked Kevin
for his license and registration. Apparently, that window was down, which made the
smell of cannabis even stronger to these trained officers. The officer then opened the door
on the passenger side. The [respondent] got out, was patted down, and arrested for the
-7-
1-17-1765
concealed weapon that was recovered in his jacket—jacket pocket. There is a no parking
sign, which justified the initial stop. The police asked the driver to roll down his window
first, and that’s when the smell was even stronger. The [respondent] denies he put his
hand on his right jacket pocket, and I don’t believe him because he wasn’t credible about
the cannabis smoking in the vehicle.
Officer Cloherty, whose testimony I believe, testified that he always keeps his
windows cracked when he’s driving, winter and summer. They pulled parallel to this
parked Lexus. He smelled cannabis coming from the car parked in a no parking zone. He
went to the front passenger side. Officer Rodriguez went to the driver side and asked the
driver to roll down the window, and then Officer Cloherty directed the passenger,
[respondent] to roll down the window on the passenger side, and he again smelled an
even stronger smell of marijuana. He testified that the person sitting behind the
[respondent] had a hand-rolled cigar in his ear. [Officer Cloherty] could see the green, the
green substance inside of it. He testified that as the [respondent] got out of the car, which
the police have the right to do according to the cases given to me, the [respondent]
reached for his right jacket pocket while Officer Cloherty said, don’t do that. [Officer
Cloherty] touched the pocket, immediately realized it was a gun, and arrested the
[respondent]. In the rear seat, a partially smoked hand-rolled blunt was recovered.
So the motion to quash arrest and suppress evidence is respectfully denied.”
¶ 13 Following the court’s ruling, the cause proceeded to an immediate bench trial. At trial,
the parties stipulated to the testimony that Officer Cloherty provided during the earlier
suppression hearing. Defense counsel, however, elected not to stipulate to respondent’s
testimony. The State then called upon Officer Cloherty to provide additional details about his
-8-
1-17-1765
interaction with respondent on the evening of January 18, 2017. Officer Cloherty testified that
after he recovered the loaded .22-caliber, black Beretta handgun from respondent’s jacket
pocket, he placed respondent under arrest. Respondent was then transported to the police station
for processing. At that time, Officer Cloherty learned that respondent was 16 years old and
identified respondent’s date of birth. 2 Officer Cloherty testified that respondent did not show him
a valid Firearm Owner’s Identification (FOID) card. He further testified that respondent had not
been issued a valid FOID card. Moreover, at the time that he found the gun on respondent’s
person, respondent was not hunting or complying with any conditions under the Illinois Wildlife
Code. Officer Cloherty testified that he inventoried the handgun in accordance with proper police
protocol.
¶ 14 On cross-examination, Officer Cloherty acknowledged that he had not observed the
handgun prior to conducting the pat down of respondent’s person. Upon the conclusion of
Officer Cloherty’s testimony, the State rested. Respondent elected not to testify, and his attorney
rested without calling any witnesses. The parties then delivered closing arguments. The circuit
court ultimately adjudicated respondent delinquent of the offenses of aggravated unlawful use of
a weapon and unlawful possession of a firearm that were contained in the State’s adjudication
petition. In doing so, the court found that the “State’s proven beyond a reasonable doubt that the
[respondent] [wa]s in possession of a loaded handgun without a Firearm Owners Identification
Card. He was not on his own home, land, or fixed place of business, and he is under 18, and [the
gun was of a] size that was concealed. There’s a finding of guilty on Count 2, aggravated
unlawful use of a weapon, Counts 1 and 3 merge into Count 2.”
2
Officer Cloherty identified respondent’s specific date of birth at the bench trial; however, in
order to better preserve the privacy of respondent, this court will not include that information in this
disposition.
-9-
1-17-1765
¶ 15 At the sentencing hearing that followed, the court heard evidence presented in
aggravation and mitigation. After considering the evidence, including the respondent’s prior
arrests and delinquency adjudications, the court remanded respondent to the custody of the
Department of Juvenile Justice. This appeal followed.
¶ 16 ANALYSIS
¶ 17 Motion to Suppress
¶ 18 On appeal, respondent first challenges the circuit court’s denial of his pretrial motion to
quash his arrest and suppress evidence. He submits that his constitutional right to be free from
unreasonable searches and seizures was violated when police officers “seized the stopped vehicle
in which he was a passenger even though the driver was merely standing temporarily in a no
parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal
activity.”
¶ 19 The State responds that the circuit court properly denied respondent’s motion to suppress
because the police officers had a reasonable articulable suspicion to initiate a Terry stop.
Specifically, the State argues that “there was a reasonable, articulable suspicion of criminal
activity to support the brief detention of minor-respondent where the police officer smelled
cannabis emanating from the illegally parked vehicle *** which minor-respondent occupied.”
¶ 20 As a general rule, a circuit court’s ruling on a motion to suppress is subject to a bifurcated
two-prong standard of review. See Ornelas v. United States, 517 U.S. 690, 699 (1996); People v.
Johnson, 237 Ill. 2d 81, 88 (2010). Pursuant to this standard, a reviewing court will afford great
deference to the circuit court’s factual findings and will disregard those findings only where they
are against the manifest weight of the evidence. Johnson, 237 Ill. 2d at 88; People v. Lopez, 2013
IL App (1st) 111819, ¶ 17. The circuit court’s ultimate legal finding as to whether suppression is
-10-
1-17-1765
warranted, however, is subject to de novo review. People v. Colyar, 2013 IL 111835, ¶ 24;
People v. Bartelt, 241 Ill. 2d 217, 234 (2011). Accordingly, “[a] court of review ‘remains free to
engage in its own assessment of the facts in relation to the issues presented and may draw its
own conclusions when deciding what relief should be granted.’ ” People v. Gherna, 203 Ill. 2d
165, 175-76 (2003) (quoting People v. Crane, 195 Ill. 2d 42, 51 (2001)). When conducting this
analysis, a reviewing court may consider the evidence presented at trial in addition to the
evidence presented during the prior suppression hearing. People v. Almond, 2015 IL 113817,
¶ 55.
¶ 21 The right to be free from unlawful searches and seizures is protected by both the federal
and state constitutions. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; Bartelt, 241 Ill. 2d at
225-26. “The ‘essential purpose’ of the fourth amendment is to impose a standard of
reasonableness upon the exercise of discretion by law enforcement officers to safeguard the
privacy and security of individuals against arbitrary invasions.” People v. McDonough, 239 Ill.
2d 260, 266-67 (2010) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)). This
constitutional guarantee “applies to all seizures of the person, including seizures that involve
only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).
Not every interaction between police officers and private citizens, however, results in a seizure
within the meaning of the fourth amendment. Almond, 2015 IL 113817, ¶ 56; McDonough, 239
Ill. 2d at 268. Courts evaluating the nature and propriety of police-citizen encounters have
grouped those interactions into three tiers: (1) an arrest or detention of an individual supported
by probable cause; (2) brief investigative stops, commonly referred to as “Terry stops,”
supported by a reasonable, articulable suspicion of criminal activity; and (3) consensual
encounters involving neither coercion nor detention that do not implicate the fourth amendment.
-11-
1-17-1765
People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648,
¶ 28.
¶ 22 For purposes of the fourth amendment analysis, a person is considered seized when a law
enforcement officer, “ ‘ “by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” ’ ” Luedemann, 222 Ill. 2d at 550 (quoting Florida v. Bostick,
501 U.S. 429, 434 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). More specifically,
the relevant inquiry to determine whether an individual seated in a parked or stopped vehicle has
been seized is whether a reasonable person in the defendant’s position would have believed that
he was free to decline the officer’s requests or otherwise terminate the encounter. Luedemann,
222 Ill. 2d at 550-51; Smith, 2016 IL App (3d) 140648, ¶ 29; People v. Bozarth, 2015 IL App
(5th) 130147, ¶ 15. Our supreme court has emphasized that this “test presupposes a reasonable
innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at 551 (citing Bostick, 501 U.S.
at 438).
¶ 23 Relevant factors to consider when determining whether an individual was seized include
(1) the threatening presence of multiple officers, (2) the display of a weapon by an officer,
(3) some physical touching of the individual’s person, and (4) the use or language or tone of
voice indicating that compliance might be compelled. United States v. Mendenhall, 446 U.S.
544, 554 (1980); Luedemann, 222 Ill. 2d at 553. “In the absence of some such evidence,
otherwise inoffensive contact between a member of the public and the police cannot, as a matter
of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22. In
addition to the four aforementioned Mendenhall factors, other factors that courts have “found
indicative of a seizure of a parked vehicle are ‘boxing the car in, approaching it on all sides by
many officers, pointing a gun at the suspect and ordering him to place his hands on the steering
-12-
1-17-1765
wheel, or use of flashing lights as a show of authority.’ ” Luedemann, 222 Ill. 2d at 557 (quoting
4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 434-35 (4th ed. 2004)).
¶ 24 As a threshold matter, the parties agree that respondent was seized when police officers
arrived on scene and positioned their unmarked squad car diagonally in front of Kevin’s vehicle
and then surrounded the vehicle. Upon review, we agree with the parties. The relevant testimony
at the suppression hearing established that once Officer Cloherty directed his fellow officers to
“put a stop” to Kevin’s car, the unmarked police vehicle positioned itself diagonally in front of
the idling SUV. The manner in which the police vehicle was positioned effectively blocked the
idling car from driving away from the scene. It is well established that a police encounter with
persons in a parked car may be classified as a seizure where a police officer positions his car in a
manner that “blocks” the other vehicle. See, e.g., Luedemann, 222 Ill. 2d at 559. In addition, we
find the positioning of the officers around the idling vehicle further supports the conclusion that
respondent and the other occupants were subject to an immediate seizure. Officer Cloherty also
testified that once the police car was positioned diagonally in front of the idling SUV, he
approached the front passenger side of the vehicle and Officer Rodriguez approached the driver’s
side door. The positioning of the officers had the effect of further restraining the movement of
the SUV’s occupants. See, e.g., Gherna, 203 Ill. 2d at 179-80 (finding that occupants of a parked
vehicle were seized when two bike officers positioned themselves on either side of a parked car,
thereby restraining the movement of the car’s occupants and preventing them from either exiting
the vehicle or driving away from the scene, and began putting questions to the occupants).
¶ 25 This does not end our inquiry, however, as we must next determine whether the seizure
was reasonable. Id. at 181 (“[O]nly those seizures which are ‘unreasonable’ violate the fourth
amendment.”). At the suppression hearing, Officer Cloherty testified that the seizure was
-13-
1-17-1765
initiated after he observed the vehicle stopped in a no parking zone and smelled cannabis coming
from the direction of the idling vehicle. Upon making those two aforementioned observations—
the location of the stopped vehicle and the smell emanating from that vehicle—Officer Cloherty
instructed his partners to “put a stop” to the vehicle. Respondent, however, suggests that neither
the location of the parked vehicle nor the smell of cannabis provided the officers with the
requisite reasonable suspicion to validate the seizure. Respondent first disputes that the vehicle in
which he was a passenger was “parked” in a no parking zone. In support, he notes that the
Chicago Municipal Code defines the term “parking” as “the standing of an unoccupied vehicle
otherwise than temporarily for the purpose of and while actually engaged in the loading or
unloading [of] property or passengers.” (Emphasis added.) Chicago Municipal Code 9-4-010
(amended Nov. 16, 2016). Given that Kevin’s vehicle was occupied while it was stopped,
respondent argues that the vehicle was not actually “parked” in violation of the no parking sign;
rather, it was simply “standing” in an area designed as a no parking area. The State, in turn,
argues that the Illinois Vehicle Code prohibits the “[s]tand[ing] or park[ing] [of] a vehicle,
whether occupied or not, except momentarily to pick up or discharge passengers” within 30 feet
upon the approach of a stop sign or “[a]t any place where official signs prohibit standing.” 625
ILCS 5/11-1303(a)(2)(d), (f) (West 2016). The State notes that respondent testified that Kevin’s
vehicle was positioned approximately 5 feet from the intersection of Lotus and Wellington and
that the intersection contained a stop sign. The State thus argues that officers had reasonable
suspicion that the vehicle was positioned in violation of the Illinois Vehicle Code even though
Officer Cloherty’s testimony did not identify the vehicle’s positioning in relation to the stop sign
as a basis for the seizure. We need not resolve this issue, however, because we conclude that the
-14-
1-17-1765
odor of cannabis afforded the officers with the reasonable suspicion required to justify the
seizure.
¶ 26 It is well established that distinctive odors can be “persuasive evidence” of criminal
activity. People v. Stout, 106 Ill. 2d 77, 87 (1985). More specifically, Illinois courts have
repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle
will provide police officers familiar with and trained in the detection of controlled substances
with probable cause to search a vehicle and all persons seated therein. See, e.g., id.; People v.
Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34;
People v. Hansen, 326 Ill. App. 3d 610, 615 (2001); People v. Boyd, 298 Ill. App. 3d 1118, 1122
(1998). Such searches are justified pursuant to the “automobile exception” to the warrant
requirement, which is derived from the recognition that there is a diminished expectation of
privacy with respect to automobiles. Stout, 106 Ill. 2d at 86.
¶ 27 Respondent acknowledges this legal precedent; however, he submits that the odor of
marijuana can no longer furnish police officers with probable cause or reasonable suspicion of
criminal activity in light of the recent amendment decriminalizing the possession of small
amounts of marijuana in Illinois. See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending
section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4) and decriminalizing the
possession of “not more than 10 grams of any substance containing cannabis” and categorizing
such possession as a “civil law violation punishable by a minimum fine of $100 and a maximum
fine of $200). He relies on Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011), a case
in which the Massachusetts Supreme Judicial Court found that the mere odor of marijuana no
longer provided law enforcement officers with reasonable suspicion of criminal activity
following a recent referendum decriminalizing the possession of small amounts of marijuana.
-15-
1-17-1765
Id.In doing so, the court found that by voting in favor of the referendum, “the voters intended to
treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug
crimes.” Id. at 909-10. Accordingly, given the fact that the referendum “changed the status of
possessing one ounce or less of marijuana from a crime to a civil violation,” the court concluded
that “odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity;”
rather, there must be “some other additional fact to bolster a reasonable suspicion of actual
criminal activity.” (Emphasis omitted.) Id. at 910.
¶ 28 Some courts have found the rationale employed by the Massachusetts court persuasive.
See, e.g., People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (concluding that “the mere odor of
mari[j]uana emanating from a pedestrian, without more, does not create reasonable suspicion that
a crime has occurred, and consequently does not authorize law enforcement to forcibly stop,
frisk, or search the individual” following the New York legislature’s decriminalization of
possession of less than 25 grams of marijuana). A number of other jurisdictions that have
considered the issue, however, have reached different results. In doing so, courts have
emphasized decriminalization is not synonymous with legalization and that the odor of marijuana
remains indicative of criminal activity despite the passage of statutes decriminalizing the
possession of smaller amounts of cannabis. See, e.g., Robinson v. State, 152 A.3d 661, 681 (Md.
2017) (concluding that a recent amendment to Maryland’s marijuana statute decriminalizing, but
not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law
concerning the search, seizure, and forfeiture of marijuana, which remains illegal” and that a
“warrantless search of a vehicle is permissible upon the detection of the odor of marijuana
emanating from the vehicle”); People v. Cannergeiter, 65 V.I. 114, 132, 136 (2016)
(emphasizing that “decriminalization” is not synonymous with “legalization” and concluding that
-16-
1-17-1765
“the Legislature’s enactment of Act No. 7700 decriminalizing the possession of one ounce or
less or marijuana in the Virgin Islands does not preclude law enforcement officers from stopping
a vehicle based on the detection of an odor of marijuana emanating from that vehicle”); People v.
Zuniga, 2016 CO 52, ¶¶ 23, 28 (concluding that “the odor of marijuana remains relevant to
probable cause determinations and can support an inference that a crime is ongoing even though
possession of one ounce or less of marijuana is allowed [pursuant to a new] Colorado law”
because “a substantial number of other marijuana-related activities remain unlawful,” and thus
“the odor of marijuana is still suggestive of criminal activity”); see also State v. Senna, 2013 VT
67, ¶ 16, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana
law “does not undermine the significance of the smell of marijuana as an indicator of criminal
activity”); State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of
marijuana no longer provided law enforcement officers with probable cause to believe that
criminal activity is taking place following the passage of Arizona’s medical marijuana statute,
which “makes marijuana legal in only limited circumstances,” because “the odor of marijuana in
most circumstances will warrant a reasonable person believing there is a fair probability that
contraband or evidence of a crime is present); People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct.
App. 2007) (finding that California’s medical marijuana act “provides a limited immunity—not a
shield from reasonable investigation” and concluding that the odor of marijuana in a parked car
provided a police officer with probable cause to search the vehicle and the occupants therein).
¶ 29 Upon consideration, we are unpersuaded by respondent’s argument regarding the effect
of the recent amendment to the Illinois Cannabis Control Act on fourth amendment search and
seizure jurisprudence. Illinois law still prohibits the knowing possession of cannabis. 720 ILCS
550/4 (West 2016) (“It is unlawful for any person knowingly to possess cannabis.”). The recent
-17-
1-17-1765
amendment to the Cannabis Control Act simply treats the possession of “not more than 10 grams
of any substance containing cannabis” as a “civil law violation” punishable by a fine. Id. § 4(a).
Possession of more than 10 grams of cannabis remains a crime subject to criminal penalties. See
id. § 4(b)-(g). Because decriminalization is not synonymous with legalization, even though
possession of less than 10 grams of cannabis is no longer a crime in Illinois, it remains illegal.
Moreover, we note that it remains a crime to drive while impaired due to the ingestion of
cannabis. 625 ILCS 5/11-501 (West 2016). We therefore conclude that case law holding that the
odor of marijuana is indicative of criminal activity remains viable notwithstanding the recent
decriminalization of the possession of not more than 10 grams of marijuana.
¶ 30 Applying the aforementioned viable legal precedent, we further find that the search and
seizure of respondent did not run afoul of the fourth amendment. The record establishes that at
the time of the seizure, Officer Cloherty had smelled the distinctive odor of marijuana coming
from the direction of a car that was idling in a no parking zone. Given that Illinois prohibits the
knowing possession of marijuana and prohibits operating a vehicle while impaired and under the
influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and
provided the officers with reasonable suspicion to believe that criminal activity was afoot. When
the officers approached the idling vehicle and spoke to the occupants through lowered windows,
the odor of marijuana became more apparent. In addition, Officer Cloherty was able to see a
marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided
the officers with probable cause to search the vehicle and the vehicle’s occupants. Stout, 106 Ill.
2d at 87-88; Zayed, 2016 IL App (3d) 140780, ¶¶ 22-23; Williams, 2013 IL App (4th) 110857,
¶ 34; Hansen, 326 Ill. App. 3d at 615; Boyd, 298 Ill. App. 3d at 1127. Respondent’s weapon was
-18-
1-17-1765
recovered during the course of this lawful search. Accordingly, we find that the circuit court
properly denied respondent’s motion to suppress.
¶ 31 Sufficiency of the Evidence
¶ 32 Respondent next challenges the sufficiency of the evidence. He argues that the State
failed to present sufficient evidence concerning his age and his lack of a FOID card, which were
necessary elements to prove him delinquent of aggravated unlawful use of a weapon and
unlawful possession of a firearm.
¶ 33 The State disputes respondent’s challenge to the sufficiency of the evidence and contends
that Officer Cloherty’s testimony conclusively established respondent’s juvenile status as well as
the fact that he had not been issued a FOID card at the time he was found in possession of a
firearm.
¶ 34 Due process requires proof beyond a reasonable doubt to convict any person of a criminal
offense. People v. Ross, 229 Ill. 2d 255, 272 (2008). This standard is applicable to juvenile
delinquency proceedings. In re Q.P., 2015 IL 118569, ¶ 24; In re Jonathon C.B., 2011 IL
107750, ¶ 47. In reviewing a challenge to the sufficiency of the evidence, it is not a reviewing
court’s role to retry the respondent; rather, “in delinquency proceedings, as in criminal cases, a
reviewing court must decide ‘ ”whether, [after] viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” ’ ” In re Q.P., 2015 IL 118569, ¶ 24 (quoting People v. Austin M.,
2012 IL 111194, ¶ 107, quoting In re Jonathon C.B., 2011 IL 107750, ¶ 47). Because the trier of
fact is in the best position to evaluate the credibility of the witnesses, draw reasonable inferences
from the evidence, and resolve any inconsistencies in the evidence (Austin M., 2012 IL 111194,
¶ 107; In re Jonathon C.B., 2011 IL 107750, ¶ 59), a reviewing court may not substitute its
-19-
1-17-1765
judgment for that of the trier of fact and will not reverse a respondent’s delinquency adjudication
unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to his
guilt (In re Q.P., 2015 IL 118569, ¶ 24).
¶ 35 A person commits the offense of aggravated unlawful use of a weapon, when “he or she
knowingly *** [c]arries or possesses on or about his or her person or in any vehicle or concealed
on his or her person except when on his or her land or in his or her abode, legal dwelling, or
fixed place of business, or on the land or in the legal dwelling of another person as an invitee
with that person’s permission, any pistol, revolver, stun gun or taser or other firearm” and one or
more of the statute’s aggravating factors are present. 720 ILCS 5/24-1.6(a) (West 2016). In this
case, the State’s adjudication petition alleged that respondent was delinquent of 2 counts of
aggravated unlawful use of a weapon. In the first count, the aggravating factor was the fact that
respondent “has not been issued a currently valid [FOID] card” (id. § 24-1.6(a)(1), (a)(3)(C)),
whereas the second count was predicated on the fact that respondent was “under 21 years of age”
(id. § 24-1.6(a)(1), (a)(3)(I)). The adjudication petition also alleged that respondent was
delinquent of the offense of unlawful possession of a firearm in that he was under 18 years of age
at the time he possessed the firearm, which was of a size that could be concealed on his person.
Id. § 24-3.1(a)(1) (“A person commits the offense of unlawful possession of firearms or firearm
ammunition when: (1) He is under 18 years of age and has in his possession of any firearm of a
size which may be concealed upon the person.”). Accordingly, respondent’s status as a juvenile
was a relevant factor with respect to the offenses of AUUW and unlawful possession of a
firearm.
¶ 36 It is well settled that a person’s age may be established as an element of an offense
beyond a reasonable doubt when “a police officer testifies before the court about an offender’s
-20-
1-17-1765
response to inquiries from law enforcement officers regarding his age.” (Emphasis omitted.)
In re S.M., 2015 IL App (3d) 140687, ¶ 16; see also In re Gabriel W., 2017 IL App (1st) 172120,
¶ 51 (recognizing that “the appellate court has found that a police officer’s testimony at a bench
trial may suffice to establish a juvenile respondent’s age”). In this case, Officer Cloherty testified
that when respondent was brought to the police station for processing, he learned respondent’s
birth date 3 and that he was 16 years old. Such testimony is sufficient to establish respondent’s
status as a juvenile beyond a reasonable doubt. In re Gabriel W., 2017 IL App (1st) 172120, ¶ 52
(finding that the State proved the respondent possessed a firearm while he was a juvenile based
in part on the testimony of police officer who “testif[ied] to the age obtained while processing
the arrest”). In addition to Officer Cloherty’s testimony, we note that defense counsel
“stipulate[d] to Juvenile jurisdiction” at respondent’s earlier arraignment. See, e.g., id. ¶ 48
(rejecting the respondent’s argument that the State failed to prove his juvenile status, based in
part, on the fact that defense counsel stipulated to juvenile jurisdiction at respondent’s
arraignment, reasoning that “by stipulating to juvenile jurisdiction, respondent was stipulating to
the fact that he was under 18 years old on the day of the alleged offense”). Accordingly, we find
that the State presented sufficient evidence of respondent’s juvenile status.
¶ 37 Respondent, however, also argues that the State failed to present sufficient evidence that
he had not been issued a valid FOID card. Like the element of an offender’s age, a police
officer’s testimony may be sufficient to establish the lack of a FOID card. See, e.g., People v.
Grant, 2014 IL App (1st) 100174-B, ¶¶ 25-26 (rejecting the defendant’s argument that the State
failed to establish he had not been issued a FOID card where the arresting officer testified that
the defendant did not present the officer with a valid FOID card and that the defendant responded
3
As mentioned previously, although Officer Cloherty identified respondent’s date of birth at the
bench trial, this court will not include that information in this disposition.
-21-
1-17-1765
“no” when asked if he had been issued a card, concluding that the “trial court could reasonably
interpret [the officer’s] testimony as evidence that the defendant had not been issued and did not
possess a valid FOID card”). Here, at respondent’s adjudication hearing, Officer Cloherty
testified that respondent never showed him a valid FOID card and that respondent did not have
and had not been issued a valid FOID card. Respondent acknowledges Officer Cloherty’s
testimony, but argues that the testimony was insufficient because Officer Cloherty did not
specifically explain how he knew that respondent had not been issued a valid FOID card.
Although it is true that Officer Cloherty did not explain the basis for his knowledge regarding
respondent’s lack of a FOID card at respondent’s adjudication hearing, we reiterate that a
reviewing court considering a challenge to the sufficiency of the evidence is required to view the
evidence in the light most favorable to the prosecution (In re Q.P., 2015 IL 118569, ¶ 24) and
that a police officer’s testimony is sufficient to establish that an offender has not been issued a
FOID card. Viewing Officer Cloherty’s testimony in the light most favorable to the State, we
find that there was sufficient evidence that respondent had not been issued a FOID card. See,
e.g., Grant, 2014 IL App (1st) 100174-B, ¶¶ 25-26. Accordingly, we reject respondent’s
challenge to the sufficiency of the evidence.
¶ 38 CONCLUSION
¶ 39 The judgment of the circuit court is affirmed.
¶ 40 Affirmed.
-22-
O.S. v. O.S.
Court: Appellate Court of Illinois
Date filed: 2018-06-26
Citations: 2018 IL App (1st) 171765, 112 N.E.3d 621
Copy Citations