2026 IL App (1st) 232112-U
SECOND DIVISION February 3, 2026
No. 1-23-2112
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). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 22 CR 04844 ) TERRY COOKS, ) Honorable ) Arthur Wesley Willis Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court. Justices McBride and D.B. Walker concurred in the judgment.
ORDER
¶1 Held: Affirmed. Defendant cannot establish prejudice from counsel’s failure to file motion to suppress gun. Odor of burnt cannabis and defendant’s apparent attempt to hide something as police approached, among other factors, established probable cause for vehicle search. Unlawful possession of weapon statute was not unconstitutional either facially or as applied to defendant.
¶2 A jury convicted defendant Terry Cooks of unlawful possession of a weapon by a felon
(UPWF). His principal argument on appeal is that trial counsel was ineffective for failing to
move to suppress the gun. The dispositive question raised by this issue is whether the police had
probable cause to search the car, based primarily on their observations of the smell of burnt
cannabis and defendant’s apparent attempt to hide something as the police approached (along
with other, albeit less significant, factors). The question is a close one, but our answer is yes. No. 1-23-2112
Thus, defendant cannot establish that he was prejudiced by counsel’s failure to file a suppression
motion. We further hold that the UPWF statute is not unconstitutional, either on its face or as
applied to defendant.
¶3 BACKGROUND
¶4 Chicago Police Officers David Arauz and Antonio Ramirez found a loaded handgun
during a “narcotics search” of a parked Jeep. The defense did not move to suppress the gun, so
the case proceeded directly to a jury trial on a UPWF charge. Officers Arauz and Ramirez were
the principal witnesses. Video footage from their body worn cameras (BWCs) captured some,
though not all, of the encounter. Defendant did not testify or present any evidence. His theory
was that the State could not prove that he intended to exercise control over the gun. Defendant
and his lead trial attorney both testified at a hearing on a post-trial motion that alleged counsel’s
ineffectiveness.
¶5 I. Evidence of probable cause at trial
¶6 The search at issue took place on January 31, 2022. Around 10:30 p.m., Officers Arauz
and Ramirez came across a Jeep parked in front of an auto body shop, on South State Street near
66th Place. The Jeep was parked about 12 inches, or perhaps a bit more, from a snowy curb, thus
potentially obstructing the flow of traffic. Judging this to be a traffic violation, Ramirez pulled
up alongside the Jeep for a closer look.
¶7 The officers testified that from inside the squad car, they could see defendant making
“furtive” movements in the driver’s seat of the Jeep. Specifically, he shifted from side to side,
pulled his lower body up and away from the seat, and then sat back down. There was one other
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unidentified passenger in the Jeep, sitting in the front seat. As far as the officers could see, he
was not moving. But the officers acknowledged that they could not see either occupant’s hands.
¶8 The officers’ BWCs were on (though muted) at the time, but since the officers were still
seated in the squad car, the cameras were trained on the squad car’s dashboard. As a result, the
footage does not depict defendant’s “furtive” movements.
¶9 The officers parked, walked over to the Jeep, and asked the two men to roll down their
windows. Arauz was at the driver’s side window, addressing defendant; Ramirez was at the
passenger’s side. With the windows down, the officers immediately noticed, and inquired about,
the strong odor of burnt cannabis inside the Jeep. According to Ramirez, the passenger said that
he had just smoked cannabis, or had smoked earlier, or something along those lines. (When the
audio on Ramirez’s BWC turns on, shortly after this interchange began, the passenger can be
heard saying something like, “I smoke weed,” but the recording is somewhat indistinct.) For his
own part, defendant said that he did not smoke at all.
¶ 10 The officers decided to conduct a “[n]arcotics search” of the Jeep. As Ramirez elaborated
on the point, “Wanted to make sure they were smoking, possession of cannabis, properly being
transported.” So they asked defendant and the passenger to step out. The passenger complied.
¶ 11 Defendant did not, at least not at first. Instead, he tried to roll up his window. As he did,
Arauz grabbed hold of his arm and held it, straddling the window, and thus forcing defendant to
stop rolling it up, lest he close it on his own arm. With his other hand, Arauz opened the driver’s
side door himself and again told defendant to step out. This time he did. Outside the Jeep, a
quick frisk of defendant yielded nothing. Defendant and his passenger were handcuffed while
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Arauz and Ramirez searched the front seats and the surrounding areas.
¶ 12 Ramirez promptly found a holster in the glove compartment, and quickly after that,
Arauz felt a hard, L-shaped bulge underneath a loose-fitting seat cover on the driver’s seat. He
reached under the seat cover and found a loaded handgun. There was no evidence that the police
found any cannabis, cannabis residue, or cannabis paraphernalia in the car. Nor was there any
evidence that defendant was, or appeared to be, impaired.
¶ 13 II. Post-trial motion alleging counsel’s ineffectiveness
¶ 14 After defendant was convicted, he retained new counsel and pursued various claims of
ineffective assistance in a post-trial motion. Among other claims no longer at issue, the post-trial
motion alleged that trial counsel should have moved to suppress the gun because the police
lacked probable cause to search the Jeep.
¶ 15 At a hearing on the motion, lead trial counsel testified that he had “internal discussions
about a motion to suppress” with his associate, who “handled the day to day” management of the
case up until trial. Based on those discussions, and “after reviewing the reports in the case and
watching the video,” lead trial counsel “had a view about the motion to suppress,” which he
communicated to defendant. Counsel did not, and was not asked to, elaborate any further on this
point. Defendant testified that when discussing a possible motion to suppress, his attorneys told
him, “ ‘We don’t need it.’ ”
¶ 16 During his testimony, lead counsel was shown a text message that he sent to a member of
defendant’s family, in which he evidently discussed a potential motion to suppress. The message
is not available in the record, but the State described it during the argument on the motion below.
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In response to the court’s question whether a motion to suppress would have been based solely
on the smell of cannabis, the State answered no, noting that in the text message, counsel is “not
only citing the smell of cannabis, but he’s also citing the movements by the Defendant and
everything else.” As the State said elsewhere of this text message, defense counsel “determined,
in his experience, that [a motion to suppress] would have been a waste of the Court’s time
because he saw it as a loser.”
¶ 17 The trial court found that a motion to suppress would not have been “meritorious,” since
the police had probable cause to search the Jeep based on “a number of things in conjunction”—
most importantly, the smell of burnt cannabis and defendant’s “furtive” movements. The court
then added, with no real explanation, that counsel decided not to file a motion to suppress as a
matter of “trial strategy.” Defendant was sentenced to six years in prison for UPWF.
¶ 18 ANALYSIS
¶ 19 I. Ineffective assistance
¶ 20 Defendant’s ineffective-assistance claim lingers as his lead appellate issue. Because the
police lacked probable cause to search the Jeep, he argues, trial counsel should have moved to
suppress the gun that the officers discovered during their ostensible search for cannabis.
¶ 21 Defendant’s claim is governed by the familiar deficiency-and-prejudice framework of
Strickland v. Washington, 466 U.S. 668 (1984). He must establish both deficient performance
and prejudice; if his claim of prejudice fails, we can dispose of his ineffectiveness challenge on
that basis alone. People v. Simpson, 2015 IL 116512, ¶ 35. To establish prejudice, based on
counsel’s failure to file a motion to suppress, defendant must show (1) that the proposed motion
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was “meritorious,” meaning that it “would have succeeded;” and (2) a reasonable probability that
he would have been acquitted had the evidence been suppressed. People v. Henderson, 2013 IL
114040, ¶¶ 12, 15; Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
¶ 22 One preliminary point. The State claims that counsel’s decision not to file a suppression
motion was a “strategic decision,” because lead counsel testified that he considered and
discussed a potential motion with his associate. The State thus invites us to summarily dispose of
defendant’s claim on the ground that he is attacking counsel’s “trial strategy.”
¶ 23 The State makes far too much of counsel’s hedged and ambiguous testimony. Counsel
never claimed that he took a pass on a suppression motion as part of his considered trial strategy.
Recall that the strategy at trial was to pin control and thus possession of the gun on defendant’s
passenger. There is no evident reason why first trying to suppress the gun would have undercut
this strategy, and if counsel perceived some such reason that is not apparent to us, he certainly
did not say so on the witness stand. His testimony that he “had a view” about a potential motion
says nothing of the kind; in fact, it is so non-specific that is says nothing at all. Defendant’s own
testimony, that his attorneys said he “didn’t need” a motion to suppress, is perhaps a modestly
better launching point for the State’s argument, but in the end, it is also too ambiguous to support
any clear inferences about counsel’s reasoning.
¶ 24 And in the text message described by the State, lead counsel appears to say that the police
had more than just the smell of burnt cannabis to go on. Taking the State’s description of the text
message at face value, it thus appears that counsel’s “view” was about the legal merits of the
proposed motion—namely, that it would have lost, because the police had probable cause for the
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search. That is not a “strategic decision” that demands deference, or a presumption of soundness,
under Strickland. It is a purely legal determination, based on an application of fourth-amendment
principles. At the risk of belaboring the obvious, courts do not defer to counsel on legal, much
less constitutional, questions.
¶ 25 Simply put, defendant had absolutely nothing to lose by filing a motion to suppress, even
if counsel thought it was unlikely to succeed. It makes no difference that the defense theory at
trial would be to blame the passenger for the presence of the gun. If the fruits of the search—the
gun—were suppressed, there wouldn’t be a trial; the State could not possibly prosecute a gun-
possession case without evidence that the defendant possessed a gun.
¶ 26 Because there was no clear evidence of a strategic decision offered at the hearing, “trial
strategy” is not a basis for resolving defendant’s claim. The real question, and the only one we
need answer, is prejudice, which boils down to the question of probable cause. This is surely an
arguable issue, and even a somewhat close call. That said, defendant’s burden is a demanding
one: he must show that counsel failed to file nothing short of a winning suppression motion.
Henderson, 2013 IL 114040, ¶¶ 12, 15. And he falls short of that mark.
¶ 27 A warrantless automobile search is permissible, under the fourth amendment, if it is
based on probable cause. People v. Redmond, 2024 IL 129201, ¶ 24; Carroll v. United States,
267 U.S. 132, 156 (1925). Probable cause exists when the evidence known to the officer(s) raises
a “fair” or “reasonable” “probability that contraband or evidence of a crime will be found in a
particular place.” (Internal quotation marks omitted.) Redmond, 2024 IL 129201, ¶ 26. This
standard does not require certainty or proof beyond a reasonable doubt, so it does not require the
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officer(s) to “rule out any innocent explanations for suspicious facts.” (Internal quotation marks
omitted.) Id. Probable cause is a highly “factual” inquiry, governed by “practical” and
“commonsense considerations,” as seen from the perspective of an “objectively reasonable”
officer. (Internal quotation marks omitted.) Id.
¶ 28 The search at issue here took place after our legislature legalized the possession and use
of recreational cannabis, subject to certain restrictions. See Redmond, 2024 IL 129201, ¶¶ 40-43;
People v. Molina, 2024 IL 129237, ¶¶ 36-45. When cannabis was illegal contraband, full stop,
the smell of raw or burnt cannabis in a car was enough to establish probable cause for a search.
People v. Stout, 106 Ill. 2d 77, 88 (1985). That rule had to be reconsidered when cannabis was
decriminalized (see People v. Hill, 2020 IL 124595), and again when it was legalized. Our
supreme court settled the post-legalization principles of probable cause in Redmond, 2024 IL
129201, ¶¶ 45-54, and Molina, 2024 IL 129237, ¶¶ 52-61. Together, these decisions hold that the
smell of raw cannabis alone provides probable cause for a vehicle search, but the smell of burnt
cannabis alone does not, although it is a factor that contributes to probable cause.
¶ 29 Defendant’s case was pending on appeal when our supreme court decided Redmond and
Molina. This timing might seem significant at first blush, because the probable-cause inquiry in
this case arises within the context of a Strickland claim, and in deciding whether counsel was
ineffective, we apply the law as it stood at the time of the challenged action or decision. People
v. Bailey, 232 Ill. 2d 285, 299 (2009); People v. Rowell, 2021 IL App (4th) 180819, ¶ 29. But as
it turns out, the law that would have applied to a pre-trial suppression motion was, in essentials,
the same law that we have now, after our supreme court’s rulings in Redmond and Molina.
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¶ 30 That is largely because the appellate decisions in Redmond, 2022 IL App (3d) 210524,
and Molina, 2022 IL App (4th) 220152, were issued during defendant’s pre-trial proceedings.
Our supreme court later affirmed both of these appellate decisions and accepted the key aspects
of their reasoning. The appellate decision in Redmond relied on People v. Stribling, 2022 IL App
(3d) 210098, ¶ 29, which similarly held that the smell of burnt cannabis in a car does not provide
probable cause to search a vehicle in the absence of other corroborating factors.
¶ 31 The First District had not yet considered the effect of legalization on probable cause for a
vehicle search. So too for the Fifth District. It is true, as the State points out, that the Second
District disagreed with Stribling and Redmond and held that the smell of burnt cannabis alone
continued to provide probable cause for a vehicle search. People v. Harris, 2023 IL App (2d)
210697, ¶¶ 23-32. Defendant’s proposed motion would not have stood a chance under Harris.
And if the trial court had been forced to choose between Harris, on the one hand, and Stribling
and Redmond on the other, defendant’s motion would have faced uncertain prospects, at best,
under a conflicted body of law. The State would have us reject defendant’s claim on this basis
alone. But the State’s argument ignores the fact that defendant stood trial before Harris was
decided. Truth be told, the appellate law was uniform, not conflicted, when a suppression motion
would have been filed in this case.
¶ 32 If that motion had been filed, the trial court would have been bound to apply the existing
appellate decisions that expressly considered the effect of legalization on probable cause for a
vehicle search. See State Farm Fire & Cas. Co. v. Yapejian, 152 Ill. 2d 533, 539 (1992) (“A
decision of the appellate court, though not binding on other appellate districts, is binding on the
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circuit courts throughout the State.”) And to be clear, there were three such decisions: Stribling
and the appellate decisions in Redmond and Molina.
¶ 33 These appellate rulings thus provide the legal context, and a uniform body of precedent,
for assessing defendant’s Strickland claim. Indeed, it bears emphasis that our supreme court’s
subsequent decisions put a final stamp of approval on exactly this body of appellate case law. So
for all practical purposes, defendant’s Strickland claim is governed by the current principles of
probable cause to search a vehicle for cannabis. Thus, we will freely cite our supreme court’s
later-issued decisions in Redmond and Molina, where it proves helpful and convenient to do so,
for the authoritative explanations they provide of the issues that arise here.
¶ 34 That brings us to the dispositive question of probable cause. There is no dispute that the
officers smelled a “strong odor of burnt cannabis” when defendant and his passenger rolled down
the front windows of the Jeep. Post-legalization, the smell of burnt cannabis alone does not give
rise to probable cause for a vehicle search, but it is a factor that can contribute to probable cause.
Redmond, 2024 IL 129201, ¶¶ 45-54; Redmond, 2022 IL App (3d) 210524, ¶¶ 21-22; Stribling,
2022 IL App (3d) 210098, ¶ 29.
¶ 35 A probable-cause analysis requires an “analysis of the facts known to the officers in
relation to the crime suspected.” Redmond, 2024 IL 129201, ¶ 51. So the first step is to identify
the potential offense(s) that the police actually suspected or, objectively speaking, had reason to
suspect. The only candidate offense identified in the State’s appellate brief is the Vehicle Code’s
requirement that any cannabis possessed “in a motor vehicle” must be stored in a “sealed, odor-
proof, child-resistant cannabis container.” 625 ILCS 5/11-502.1, 502.15 (West 2020).
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¶ 36 The smell of raw cannabis reliably indicates that cannabis is present and, obviously
enough, is not in an “odor proof” container. Molina, 2024 IL 129237, ¶ 55. That is why the smell
of raw cannabis alone provides probable cause for a vehicle search. Id. ¶¶ 52-56; Molina, 2022
IL App (4th) 220152, ¶¶ 38-44. But the officers here never claimed to smell raw cannabis, only
burnt cannabis. The State thus fails to identify a plausible candidate offense that the officers had
probable cause to investigate.
¶ 37 That said, the burden on a Strickland claim lies with defendant, not the State. And a
plausible candidate offense is not far to seek. While the smell of raw cannabis gives rise to an
inference of current possession, the smell of burnt cannabis gives rise to an “inference of current
or prior use.” Molina, 2024 IL 129237, ¶ 56. And even post-legalization, there are still numerous
restrictions on when, where, and by whom cannabis can lawfully be used.
¶ 38 In the context of automobiles, there are two sources of such restrictions: the Vehicle
Code, and section 10-35 of the Cannabis Regulation and Tax Act. 410 ILCS 705/10-35 (West
2020) (“Regulation Act”).
¶ 39 First, the Vehicle Code provides that “[n]o driver may use cannabis within the passenger
area of any motor vehicle upon a highway in this State.” 625 ILCS 5/11-502.15(a) (West 2020).
For this purpose, a “highway” is defined, in short, as any public way. Id. § 1-126 (“highway”
means “[t]he entire width between the boundary lines of every way publicly maintained when
any part thereof is open to the use of the public for purposes of vehicular travel ***”). There is
no dispute that the Jeep, parked on South State Street in Chicago, was on a “highway” as thus
defined.
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¶ 40 Second, by way of background, the legalization of cannabis has the following overall
legal structure. Section 4 of the Cannabis Control Act establishes a general prohibition against
the possession of cannabis. 720 ILCS 550/4 (West 2020) (“Control Act”). Section 10-5 of the
Regulation Act “then generally grants immunity from prosecution for the use and possession of
cannabis.” Redmond, 2024 IL 129201, ¶ 58; 410 ILCS 705/10-5 (West 2020). Section 10-35 of
the Regulation Act, in turn, “describes conduct for which section 10-5 does not apply;” conduct
that falls under section 10-35 therefore remains subject to the Control Act’s general prohibition
against the possession of cannabis. Redmond, 2024 IL 129201, ¶ 58. Thus, someone who uses or
possesses cannabis in the ways described in section 10-35 commits a civil, misdemeanor, or
felony offense, depending on the quantity of cannabis involved.
¶ 41 Per section 10-35, the Regulation Act “does not permit any person to engage in” certain
enumerated conduct, which includes “using cannabis *** in any motor vehicle.” 410 ILCS
705/10-35(a)(3)(D) (West 2020). This prohibition is significantly broader than the Vehicle Code
provision, since it is not limited to the driver of the vehicle, and it does not require the vehicle to
be on a public way when the cannabis is used.
¶ 42 So our question, in sum, is whether the police had probable cause to search the Jeep for
evidence that defendant and/or his passenger used cannabis in the Jeep, in violation of one or
both of these provisions.
¶ 43 The smell of burnt cannabis was some evidence of a potential violation, which is why it
remains a factor in a probable-cause analysis. But the burnt smell alone was not enough for
probable cause. Because the smoke-borne odor created by the burning of cannabis tends to waft
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and “linger[ ],” one cannot reliably infer when, where, or by whom the cannabis was used just
from the presence of the burnt smell alone. Stribling, 2022 IL App (3d) 210098, ¶ 28; Redmond,
2024 IL 129201, ¶ 47.
¶ 44 For all the officers here could have known, based on what they smelled, defendant and/or
his passenger could have smoked cannabis, in a permissible location, before getting into the
Jeep. And since there was no evidence that defendant was impaired as a result, the possibility of
cannabis use outside the Jeep did not give rise to probable cause for a search. See Stribling, 2022
IL App (3d) 210098, ¶ 28 (driver’s potential use of cannabis not unlawful if it does not result in
actual impairment or blood/urine concentrations over threshold amount).
¶ 45 Probable cause thus requires further “corroborating factors” or “inculpatory facts,” which
is to say: some more particularized evidence making it reasonably likely that cannabis was used
in a certain prohibited context—namely, in the Jeep. Redmond, 2024 IL 129201, ¶ 54; Redmond,
2022 IL App (3d) 210524, ¶ 22; Stribling, 2022 IL App (3d) 210098, ¶ 29.
¶ 46 Actual smoke, either inside the Jeep or wafting out of its windows, would have provided
the corroboration necessary for probable cause. But there was no evidence of any smoke. Nor did
the officers claim to see ash, residue, paraphernalia, or any other such indication of cannabis use
in the Jeep. (And for what it’s worth, they did not find any during the search.)
¶ 47 The fact that defendant may have parked slightly too far from the curb is not a reason to
suspect that someone smoked cannabis at all, much less inside the Jeep. See Stribling, 2022 IL
App (3d) 210098, ¶ 28 (traffic violations not inherently indicative of impairment or substance
use). So defendant’s ostensible parking violation was not, as the State argues, a corroborating
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factor that contributed to probable cause for the search.
¶ 48 Of the potentially corroborating factors that remain, the most significant is defendant’s
“furtive” movements, which the officers claimed to see as they approached the Jeep in the squad
car, before the BWCs began to capture the relevant events. In ruling on the post-trial motion, the
trial court clearly credited the officers’ testimony on this point, and we defer to that finding.
¶ 49 To be clear, the officers did not baldly characterize defendant’s movements as “furtive,”
which is nothing more than a synonym of “suspicious” and therefore does nothing to explain the
basis for the officers’ claimed suspicions. Rather, the officers gave a detailed description of what
they saw: defendant shifted from side to side, pulled his lower body up and away from the seat,
and then sat back down. We would add that the officers were in a marked squad car with flashing
lights, and their side lamps were turned on to illuminate the Jeep. So it would have been clear to
defendant that it was, in fact, the police approaching. The officers left the obvious inference from
these facts unspoken, but the State draws it in its brief: defendant looked like he was hiding
something, either in or underneath his seat, from the approaching police.
¶ 50 “Furtive” movements, thus described, are not enough for probable cause. See, e.g.,
People v. Randall, 2022 IL App (1st) 210846, ¶ 37. There are countless lawful items that
defendant, out of legitimate concern for his privacy, had every right to hide from the view of two
perfect strangers. Generally speaking, it is also possible that someone shuffling about in this way
was not trying to hide something at all, but rather reaching for his wallet, on the premise that he
would soon need to show his license to the police. But defendant appeared to be doing just that at
a later point, as seen on the BWC, and the officers explicitly testified that these later movements
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were not the “furtive” ones they were acting on.
¶ 51 In any event, like the smell of burnt cannabis, an effort to hide something from the police
is a factor that can give rise to probable cause when other corroborating factors are present. See
id. In particular, there must be some other evidence that the item being hidden is sufficiently
likely to be contraband, or evidence of a crime, rather than something lawful but private.
¶ 52 Here, the smell of burnt cannabis and defendant’s apparent effort to hide something from
the police were mutually corroborating. The smell of burnt cannabis made it reasonably likely
that defendant was trying to hide evidence of recent cannabis use. His attempt to hide something
from the police, in turn, made it reasonably likely that the smell of burnt cannabis in the Jeep was
the result of imminent use in that very location.
¶ 53 Further, albeit slight, corroboration is provided by the passenger’s statement to Officer
Ramirez. On the BWC, the passenger can be heard saying something about using cannabis. We
cannot tell exactly what he was saying, but as Ramirez recalled, the passenger said he had “just”
smoked cannabis, or something to that effect. Granted, the passenger did not admit that he had
smoked in the Jeep; and defendant, for his own part, denied that he smoked at all. Still, this was
what the police knew: one occupant of the Jeep (the passenger), by his own admission, recently
used cannabis, and the other (defendant) seemingly tried to hide something from the approaching
police. And that is to say nothing of defendant’s initial noncompliance when the officers ordered
him out of the Jeep for the search.
¶ 54 All these factors, taken together, demonstrated a “fair” or “reasonable probability” that a
search of the Jeep would yield evidence of unlawful activity—cannabis use inside the Jeep by
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one or both occupants. See Redmond, 2024 IL 129201, ¶ 26; Molina, 2024 IL 129237, ¶ 22. The
officers had probable cause for the search.
¶ 55 These corroborating factors, beyond the mere smell of burnt cannabis, distinguish this
case from Redmond, 2022 IL App (3d) 210524, and Stribling, 2022 IL App (3d) 210098, which
both found that probable cause for a vehicle search was lacking.
¶ 56 In Redmond, 2022 IL App (3d) 210524, ¶ 22, the search was based entirely on the smell
of burnt cannabis in the car, with no corroborating factors at all. We noted that the defendant in
Redmond, unlike our defendant here, “did not make any furtive movements.” Id. ¶ 3. Nor was
there any evidence of noncompliance. See id. What’s more, the officer in Redmond affirmatively
believed that the smell of burnt cannabis alone gave rise to probable cause. Id. ¶ 8. Thus hemmed
in by his own error, he could only resort to a series of non-starters in his effort to justify the
illegal search: the defendant was driving (1) a rental car (2) on I-80, a supposed drug-trafficking
corridor, (3) between Chicago and Des Moines, Iowa, two supposed hubs of criminal activity.
Clearly there was nothing but the smell of burnt cannabis to go on.
¶ 57 In Stribling, 2022 IL App (3d) 210098, ¶ 27, the smell of burnt cannabis, combined with
the defendant’s traffic offense(s) and statement to the officer, did not support probable cause. As
we noted above, traffic offenses are commonplace events that do not reliably indicate substance
use, much less use in a prohibited context, or any other likely unlawful activity. So the only
potentially corroborating factor was the defendant’s admission to the officer that “someone had
smoked inside the vehicle ‘a long time ago.’ ” Id. And that admission was not enough.
¶ 58 Unlike defendant’s passenger here, the defendant in Stribling (who was alone in the car)
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did not admit to an imminent or at least recent use of cannabis by a current occupant of the car.
The fact that someone, at some point, smoked cannabis in the car could very well explain the
“linger[ing]” smell (id. ¶ 28), without thereby indicating that the police were reasonably likely to
find evidence of an offense during a search. The passenger’s admission here thus provided the
police with a stronger reason to believe that cannabis was recently used, and that evidence of this
offense was likely to be found, in the Jeep.
¶ 59 Last but surely not least, like the defendant in Redmond but unlike our defendant here,
the defendant in Stribling was not trying to “hid[e] anything” from the police. Id.
¶ 60 Given the state of the law during defendant’s pre-trial proceedings, a motion to suppress
was surely arguable, but it was not “meritorious” under the strict standard required to establish
Strickland prejudice. Defendant has thus failed to show that trial counsel was ineffective for
failing to move to suppress the gun found during the search of the Jeep.
¶ 61 II. Constitutionality of UPWF statute
¶ 62 Defendant also claims that the UPWF statute violates the Second Amendment under the
test established in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).
He raises both facial and as-applied challenges under the Bruen framework. Neither challenge
was raised below. But for the following reasons, we consider—and reject—both.
¶ 63 We begin with the facial challenge to the UPWF statute. Facial challenges may be raised
at any time, even for the first time on appeal. People v. Thompson, 2015 IL 118151, ¶ 32. This
particular challenge takes us into well-worn territory, so we have the luxury of being brief. The
Bruen test proceeds in two steps: we first ask whether “the Second Amendment’s plain text
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covers an individual’s conduct;” if it does, the State “must then justify its regulation by
demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Bruen, 597 U.S. at 24.
¶ 64 We should note at the outset that, after the close of briefing, our supreme court released
its opinion in People v. Thompson, 2025 IL 129965. Thompson involved a conviction for
AUUW, which prohibits possession of a firearm without a concealed-carry license. See 720
ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2024). Our supreme court viewed the issue as a challenge
to “the constitutionality of the AUUW statute’s enforcement of the CCL licensing regime, which
incorporates FOID card licensure.” Thompson, 2025 IL 129965, ¶ 17. The court held that
footnote 9 in Bruen expressly endorsed Illinois’s shall-issue licensing scheme and “obviate[d]
the need for this court to apply the historical-tradition component of the Bruen analysis to
defendant’s facial challenge” to the AUUW provision at issue. Id. ¶ 44.
¶ 65 But Thompson does not govern our analysis, as this appeal does not involve either the
FOID Card Act or the Firearm Concealed Carry Act. Defendant here was convicted based on his
status as a felon, not his lack of a firearm license. See People v. Delgado, 2025 IL App (1st)
240350-U, ¶ 13 (noting that Thompson did not govern its consideration of facial challenge to
UPWF statute for this reason).
¶ 66 That aside, the cases thus far have reached conflicting conclusions about Bruen’s
threshold inquiry. Some hold that felons are categorically excluded from the Second
Amendment’s protections, while others hold that a felon’s possession of a firearm falls within
the scope of the amendment and thus warrants an historical inquiry under the second step of the
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Bruen test. Compare People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (because felons are not
“law abiding citizens,” they are not protected by the Second Amendment, and Bruen’s historical-
tradition analysis “does not apply” to them), with Brooks, 2023 IL App (1st) 200435, ¶¶ 88-89
(“How the defendant’s prior felony might impact his second amendment right to possess a
firearm is more properly evaluated under the second step’s historical tradition analysis.”).
¶ 67 We need not decide which step of the Bruen analysis is the more suitable one, for even if
defendant falls within the scope of the amendment’s protections and thus satisfies the analysis
under step one of Bruen, his argument would fail under Bruen’s historical-tradition analysis.
That is, laws that prohibit felons from possessing firearms are generally consistent with our
historical tradition of firearm regulation. See Brooks, 2023 IL App (1st) 200435, ¶¶ 88-89.
¶ 68 We have undertaken the historical analysis required by Bruen in several previous cases,
and we will not repeat it all here. A case directly on point is People v. Travis, 2024 IL App (3d)
230113, ¶¶ 27-33, which rejected facial challenges to the armed habitual criminal (AHC) and
unlawful use of a weapon by a felon (UUWF; since renamed UPWF) statutes, on the ground that
these firearm prohibitions are consistent with our historical tradition.
¶ 69 And for a sampling of appellate cases from the various districts that agree with this
analysis, see People v. Stephens, 2024 IL App (5th) 220828, ¶¶ 34-39 (rejecting facial challenge
to UUWF statute under second step of Bruen); Brooks, 2023 IL App (1st) 200435, ¶¶ 68-101
(rejecting as-applied challenge to AHC statute, finding prohibition on firearm possession by non-
violent felon consistent with historical tradition); Awkerman v. Illinois State Police, 2023 IL App
(2d) 220434, ¶¶ 49-56 (rejecting as-applied challenge to FOID Act provisions that permit denial
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of FOID card based on applicant’s conviction for felony drug offense).
¶ 70 We agree that the historical analysis set forth in these cases satisfies the second step of
the Bruen test and is thus sufficient to dispose of defendant’s facial challenge to the UPWF
statute. We respectfully decline his invitation to reconsider these rulings.
¶ 71 That leaves defendant’s as-applied challenge. His argument, as we understand it, can be
summed up as follows. The predicate conviction for his current UPWF charge is an aggravated
discharge of a firearm committed in 2004, roughly 18 years before he was arrested for possessing
a gun as a felon. By then, he was no longer “under felony sentence or on mandatory supervised
release.” Even granting that some firearm disability could constitutionally result from this
particular predicate offense, it could not last this long, since there is no historical analogue for a
ban of this scope. And given that his only other prior felony—possession of burglary tools in
2007—was “of a similar vintage,” and non-violent to boot, his criminal history as a whole does
not support a “finding of current dangerousness” that would justify a continued firearm
disqualification.
¶ 72 This is, in essentials, the same as-applied challenge that we considered in People v. Boss,
2025 IL App (1st) 221855. The defendant in Boss argued, for the first time on appeal, that the
UUWF statute was unconstitutional as applied to him, because he had served his full sentence for
his armed-robbery predicate by the time he was arrested, and the State produced no other
evidence demonstrating that he remained dangerous. Id. ¶¶ 38-41.
¶ 73 The lead opinion in Boss held that the challenge was “premature.” Id. ¶ 42. As-applied
challenges are generally “premature”—which is to say, forfeited—if they were not raised in the
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trial court, where a record of the specific facts and circumstances relevant to the claim can be
developed at an evidentiary hearing. People v. Thompson, 2015 IL 118151, ¶ 37. In Boss, 2025
IL App (1st) 221855, ¶ 41, the trial court never received any evidence “concerning the facts and
circumstances surrounding [the] defendant’s prior conviction,” among other matters that could
bear on the question of his “dangerousness.” Without this evidence, the lead opinion concluded,
the appellate court could not properly review the defendant’s as-applied challenge, dependent as
it was on the particulars of his situation; a postconviction petition would be necessary. Id.
¶ 74 The special concurrence in Boss reached a different conclusion: the as-applied challenge
was not legally viable, whatever the particular facts may be, under either application of the
Bruen framework articulated in our cases. Id. ¶¶ 60-62 (Mikva, P.J., specially concurring).
¶ 75 Justice Mikva’s special concurrence is persuasive; under either step of Bruen, an as-
applied challenge is doomed from the start. Under the first approach, as discussed, felons are
excluded from the scope of the second amendment. If they have no second-amendment rights,
they obviously have no viable second-amendment challenges, either facial or as-applied. Id. ¶ 60.
¶ 76 Under the second approach, laws that prohibit felons from possessing firearms are
generally consistent with our historical tradition of firearm regulation. Id. ¶ 61. Specifically, we
have held in this context that firearm disqualifications based on felony status are (historically and
thus constitutionally) justified, even if they are “permanent” (Stephens, 2024 IL App (5th)
220828, ¶¶ 10, 21, 25) or arise from non-violent predicate offenses (Brooks, 2023 IL App (1st)
200435, ¶ 100). And if firearm disqualifications can be based on non-violent felony offenses, it
follows that a particularized showing of “dangerousness” is not required.
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¶ 77 Justice Mikva’s point is well-taken: the as-applied challenge was foreclosed as a matter
of law. Under either approach to the Bruen framework, there was no need for an individualized
finding that the defendant posed a danger to society, and thus no need for a hearing or other
inquiry into the details of his felonies. Boss, 2025 IL App (1st) 221855, ¶¶ 60, 62 (Mikva, P.J.,
specially concurring). Simply put, the as-applied challenge fails here for the same reasons as the
facial challenges we have rejected in a myriad of cases. Id. ¶ 62.
¶ 78 Finally, even if, for the sake of argument, a particularized finding of dangerousness was
necessary for a justified firearm disqualification, we have everything in the record below to
determine that defendant’s as-applied challenge lacks merit. Unlike in Boss, we have more than
just the names and dates of defendant’s prior felonies. We know the particular facts and
circumstances of his 2004 aggravated-discharge conviction, because the State introduced these
details as aggravation at sentencing.
¶ 79 The fact that defendant’s predicate offense was, itself, an act of gun violence would
already go a long way toward defeating his as-applied challenge. And this particular act of gun
violence was, so to speak, aggravated twice over. The State’s undisputed proffer showed that
defendant shot at an occupied van. The driver of the van was a witness against defendant in a
pending misdemeanor case, and there was a judicial finding, in the 2004 case, that defendant’s
motive for the shooting was to intimidate the witness. The shooting thus implicates the
judiciary’s compelling interest in securing the integrity of its process and the safety of the
witnesses who participate in that process. And to make matters worse, the witness’s three young
children were in the van with him, thus showing defendant’s willingness to endanger the safety
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of children, as well as intimidate witnesses, through an overt act of gun violence. We reject his
implicit suggestion that details like these are immaterial, such that the passage of time alone is a
sufficient reason to declare that he is not, or is no longer, a danger with a gun. So even if some
as-applied challenges of this kind could ultimately prove successful, we are confident that this
particular challenge is not among them.
¶ 80 CONCLUSION
¶ 81 The judgment of the circuit court is affirmed.
¶ 82 Affirmed.
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