NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190228-U
Order filed April 14, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0228 v. ) Circuit No. 18-CF-435 ) OMAR ALMANZA, ) Honorable ) Frank R. Fuhr, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court. Justices Daugherity and Schmidt concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err by denying defendant’s motion to suppress evidence and finding the search warrant application provided probable cause to issue a search warrant for defendant’s residence.
¶2 Defendant, Omar Almanza, appeals his convictions for possession with intent to deliver a
controlled substance. Defendant argues the Rock Island County circuit court erred by holding
there was probable cause to search his residence because the totality of the circumstances did not
establish a substantial basis for the warrant judge to find a fair probability that evidence of criminal activity would be found in defendant’s residence, and the good-faith exception did not apply
because the executing officers could not have reasonably believed the search warrant was valid.
We affirm.
¶3 I. BACKGROUND
¶4 On May 10, 2018, Officer Jonathan Shappard filed a search warrant application averring
he received information from a confidential informant that illegal narcotics were being sold at
defendant’s residence. The warrant application stated that Shappard conducted trash surveys on
April 12 and April 28, 2018, of the trash left out on the ground commonly used for waste pickup
at the residence in question. Both times, Shappard discovered a substance that tested positive for
cannabis, along with indicia of residency in the form of mail addressed to the listed address.
¶5 Shappard also averred that he confirmed with the Illinois Department of Public Health that,
as of their last report, there were 23,300 medical marijuana card holders in Illinois, or less than
0.2% of the state’s population. Shappard checked the Rock Island Police Department’s computer
records for all individuals who listed defendant’s residence as their primary address, and he found
that none of the house’s current residents owned a valid medical marijuana card. The warrant was
issued and executed on May 10, 2018, the same day that Shappard submitted the warrant
application.
¶6 Officers executed the warrant, finding cocaine in defendant’s residence and on his person.
The officers arrested defendant, and on May 11, 2018, the State charged him with two counts of
possession with intent to deliver a controlled substance (720 ILCS 570/407(b)(1), (c) (West 2018)).
Count I alleged that defendant possessed with the intent to deliver between 1 and 15 grams of
cocaine within 500 feet of an elementary school. Count II alleged the same offense minus the
school location enhancement.
2 ¶7 On July 23, 2018, defendant filed a motion to suppress evidence. At the hearing on the
motion, defendant argued that the warrant lacked evidence of drug sale activity in his residence,
as the officers failed to find any indication of drug sales in the trash, and the officers only found
an amount of cannabis subject to a civil fine. Further, defendant argued that the legislature’s
decriminalization of the possession of small amounts of cannabis rendered case law holding that
any amount of cannabis found in the trash amounted to probable cause to search a house
inapplicable. The State insisted that any amount of cannabis in the trash was enough to establish
probable cause to search the residence and urged the court not to give the confidential informant’s
statement much weight because it was only there to demonstrate that the trash search was not
random.
¶8 The court denied the motion, holding that, under People v. Balsley, 329 Ill. App. 3d 184
(2002), the fact that officers twice found a small quantity of cannabis in sealed trash along with
indicia of residency provided probable cause to search the house. The court found that, under In re
O.S., 2018 IL App (1st) 171765, the decriminalization of possession of less than 10 grams of
cannabis merely changed the penalty but did not make cannabis legal, so its presence in the trash
still provided probable cause to search defendant’s residence. The court gave no weight to the
confidential informant’s statement, declaring it “simply historical information given by the officers
to explain their later course of action.”
¶9 During a stipulated bench trial, the parties stipulated that Officer Ryan DeRudder would
testify that he executed the search warrant of defendant’s residence. Defendant returned home
during the execution of the search warrant, and DeRudder detained him when he exited his vehicle.
DeRudder searched defendant and discovered cocaine and $680. He then searched defendant’s
vehicle, finding more cocaine and a cell phone.
3 ¶ 10 Shappard would testify that he also executed the search warrant on defendant’s residence,
where he discovered cocaine and a bag of a white substance commonly used to cut cocaine for
sale.
¶ 11 Officer Phillip Ledbetter would testify that, on the day in question, he was responsible for
surveilling defendant. Ledbetter saw defendant conduct a hand-to-hand transaction with an
unknown person that was consistent with a drug delivery. As Ledbetter followed defendant, they
drove within 353 feet of an elementary school. When Ledbetter interviewed defendant after the
arrest, defendant waived his Miranda rights and said the cocaine found in his vehicle, in his home,
and on his person belonged to him, and that he was selling narcotics for extra money.
¶ 12 Defense counsel objected to the school location enhancement in order to preserve
defendant’s right to appeal the suppression issue. The State moved to remove the school location
enhancement from count I, reducing the charge from a Class X offense to a Class 1 offense, which
the court granted. The charge reduction did not alter the corollary sentence. The court found
defendant guilty on both counts and sentenced him to two concurrent terms of six years’
imprisonment, one for each count, per the State’s recommendation. Defendant appeals.
¶ 13 II. ANALYSIS
¶ 14 Defendant argues that (1) the court erred by finding probable cause to search his residence
for contraband and evidence of drug sales because the totality of the circumstances did not
establish a substantial basis for the warrant judge to find a fair probability that evidence of criminal
activity would be found in his residence, and (2) the good-faith exception should not apply because
the executing officers could not have reasonably believed the search warrant was valid.
¶ 15 “Whether probable cause exists in a particular case depends on the totality of facts and
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190228-U
Order filed April 14, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 14th Judicial Circuit, ) Rock Island County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0228 v. ) Circuit No. 18-CF-435 ) OMAR ALMANZA, ) Honorable ) Frank R. Fuhr, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court. Justices Daugherity and Schmidt concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err by denying defendant’s motion to suppress evidence and finding the search warrant application provided probable cause to issue a search warrant for defendant’s residence.
¶2 Defendant, Omar Almanza, appeals his convictions for possession with intent to deliver a
controlled substance. Defendant argues the Rock Island County circuit court erred by holding
there was probable cause to search his residence because the totality of the circumstances did not
establish a substantial basis for the warrant judge to find a fair probability that evidence of criminal activity would be found in defendant’s residence, and the good-faith exception did not apply
because the executing officers could not have reasonably believed the search warrant was valid.
We affirm.
¶3 I. BACKGROUND
¶4 On May 10, 2018, Officer Jonathan Shappard filed a search warrant application averring
he received information from a confidential informant that illegal narcotics were being sold at
defendant’s residence. The warrant application stated that Shappard conducted trash surveys on
April 12 and April 28, 2018, of the trash left out on the ground commonly used for waste pickup
at the residence in question. Both times, Shappard discovered a substance that tested positive for
cannabis, along with indicia of residency in the form of mail addressed to the listed address.
¶5 Shappard also averred that he confirmed with the Illinois Department of Public Health that,
as of their last report, there were 23,300 medical marijuana card holders in Illinois, or less than
0.2% of the state’s population. Shappard checked the Rock Island Police Department’s computer
records for all individuals who listed defendant’s residence as their primary address, and he found
that none of the house’s current residents owned a valid medical marijuana card. The warrant was
issued and executed on May 10, 2018, the same day that Shappard submitted the warrant
application.
¶6 Officers executed the warrant, finding cocaine in defendant’s residence and on his person.
The officers arrested defendant, and on May 11, 2018, the State charged him with two counts of
possession with intent to deliver a controlled substance (720 ILCS 570/407(b)(1), (c) (West 2018)).
Count I alleged that defendant possessed with the intent to deliver between 1 and 15 grams of
cocaine within 500 feet of an elementary school. Count II alleged the same offense minus the
school location enhancement.
2 ¶7 On July 23, 2018, defendant filed a motion to suppress evidence. At the hearing on the
motion, defendant argued that the warrant lacked evidence of drug sale activity in his residence,
as the officers failed to find any indication of drug sales in the trash, and the officers only found
an amount of cannabis subject to a civil fine. Further, defendant argued that the legislature’s
decriminalization of the possession of small amounts of cannabis rendered case law holding that
any amount of cannabis found in the trash amounted to probable cause to search a house
inapplicable. The State insisted that any amount of cannabis in the trash was enough to establish
probable cause to search the residence and urged the court not to give the confidential informant’s
statement much weight because it was only there to demonstrate that the trash search was not
random.
¶8 The court denied the motion, holding that, under People v. Balsley, 329 Ill. App. 3d 184
(2002), the fact that officers twice found a small quantity of cannabis in sealed trash along with
indicia of residency provided probable cause to search the house. The court found that, under In re
O.S., 2018 IL App (1st) 171765, the decriminalization of possession of less than 10 grams of
cannabis merely changed the penalty but did not make cannabis legal, so its presence in the trash
still provided probable cause to search defendant’s residence. The court gave no weight to the
confidential informant’s statement, declaring it “simply historical information given by the officers
to explain their later course of action.”
¶9 During a stipulated bench trial, the parties stipulated that Officer Ryan DeRudder would
testify that he executed the search warrant of defendant’s residence. Defendant returned home
during the execution of the search warrant, and DeRudder detained him when he exited his vehicle.
DeRudder searched defendant and discovered cocaine and $680. He then searched defendant’s
vehicle, finding more cocaine and a cell phone.
3 ¶ 10 Shappard would testify that he also executed the search warrant on defendant’s residence,
where he discovered cocaine and a bag of a white substance commonly used to cut cocaine for
sale.
¶ 11 Officer Phillip Ledbetter would testify that, on the day in question, he was responsible for
surveilling defendant. Ledbetter saw defendant conduct a hand-to-hand transaction with an
unknown person that was consistent with a drug delivery. As Ledbetter followed defendant, they
drove within 353 feet of an elementary school. When Ledbetter interviewed defendant after the
arrest, defendant waived his Miranda rights and said the cocaine found in his vehicle, in his home,
and on his person belonged to him, and that he was selling narcotics for extra money.
¶ 12 Defense counsel objected to the school location enhancement in order to preserve
defendant’s right to appeal the suppression issue. The State moved to remove the school location
enhancement from count I, reducing the charge from a Class X offense to a Class 1 offense, which
the court granted. The charge reduction did not alter the corollary sentence. The court found
defendant guilty on both counts and sentenced him to two concurrent terms of six years’
imprisonment, one for each count, per the State’s recommendation. Defendant appeals.
¶ 13 II. ANALYSIS
¶ 14 Defendant argues that (1) the court erred by finding probable cause to search his residence
for contraband and evidence of drug sales because the totality of the circumstances did not
establish a substantial basis for the warrant judge to find a fair probability that evidence of criminal
activity would be found in his residence, and (2) the good-faith exception should not apply because
the executing officers could not have reasonably believed the search warrant was valid.
¶ 15 “Whether probable cause exists in a particular case depends on the totality of facts and
circumstances known to an affiant applying for a warrant at the time the warrant is sought.” People
4 v. McCarty, 223 Ill. 2d 109, 153 (2006). The warrant judge must “ ‘make a practical,
commonsense decision whether, given all the circumstances set forth in the affidavit, *** there is
a fair probability that contraband or evidence of a crime will be found in a particular place.’ ”
People v. Hickey, 178 Ill. 2d 256, 285 (1997) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
A reviewing court must not substitute its judgment for that of the warrant judge. People v. Teague,
2019 IL App (3d) 170017, ¶ 12. Instead, we must decide whether the warrant judge had a
substantial basis for concluding that probable cause existed. Id. “ ‘Although we review a circuit
court’s ruling on a motion to suppress de novo [citation], we defer to an issuing judge’s
determination of probable cause and resolve any doubts in favor of upholding a warrant that has
been issued.’ ” Id. (quoting People v. Rodriguez, 2018 IL App (1st) 141379-B, ¶ 48).
¶ 16 Defendant argues it was unreasonable for the warrant judge to find that the cannabis found
in the trash was contraband, citing the Compassionate Use of Medical Cannabis Pilot Program Act
(410 ILCS 130/1 et seq. (West 2018)) and our supreme court’s decision in People v. Hill, 2020 IL
124595, ¶ 34, which held that “the mere presence of cannabis for medical users may no longer be
immediately attributable to criminal activity or possession of contraband.” However, in People v.
Rice, 2019 IL App (3d) 170134, ¶ 23, we held that most courts “have found that decriminalization
is not synonymous with legalization,” and therefore the odor of cannabis indicated criminal
activity (citing O.S., 2018 IL App (1st) 171765, ¶ 28). Cannabis possession remains unlawful
under the Cannabis Control Act. See 720 ILCS 550/4 (West 2018) (“It is unlawful for any person
knowingly to possess cannabis.”); Rice, 2019 IL App (3d) 170134, ¶ 24. “Under Illinois law, the
knowing possession of cannabis is still a criminal offense and possession of more than 10 grams
remains an unlawful act subject to criminal penalties.” Rice, 2019 IL App (3d) 170134, ¶ 24.
Thus, the presence of cannabis in defendant’s trash provided a substantial basis for the warrant
5 judge to conclude that probable cause existed to search defendant’s residence for contraband and
evidence of drug sales.
¶ 17 Defendant also argues that the good-faith exception does not apply in this case. Because
the warrant application presented a substantial basis for finding that probable cause existed, we
need not reach this issue.
¶ 18 III. CONCLUSION
¶ 19 The judgment of the circuit court of Rock Island County is affirmed.
¶ 20 Affirmed.