2023 IL App (4th) 220209 FILED NO. 4-22-0209 January 25, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Henry County ANDREW L. HALL, ) No. 21CF222 Defendant-Appellee. ) ) Honorable ) Terence M. Patton, ) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justices Cavanagh and Harris concurred in the judgment and opinion.
OPINION ¶1 Police stopped a vehicle in which defendant, Andrew L. Hall, was a passenger.
The officer noticed the odor of cannabis coming from the vehicle and instructed its occupants to
give her the cannabis and any drug paraphernalia. After another passenger admitted he had a
small amount of cannabis, the officer searched the vehicle. Ultimately, defendant was arrested
and charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West
2020)).
¶2 Defendant filed a motion to suppress evidence, arguing the odor of cannabis alone
did not provide probable cause to search the vehicle. The circuit court granted the motion. ¶3 The State appeals, arguing the circuit court erred in granting the motion to
suppress because the odor of cannabis constituted probable cause to search the vehicle. We
reverse and remand.
¶4 I. BACKGROUND
¶5 In July 2020, while conducting a traffic stop of a vehicle in which defendant was
a passenger, Sarah Van Hollebeke, a police officer with over 28 years’ experience, detected the
odor of cannabis coming from the vehicle. Van Hollebeke, a patrol officer employed by the city
of Colona, eventually searched the vehicle and discovered, inter alia, cannabis and a rolled joint
in an orange container in the back seat, where defendant had been sitting. Defendant was arrested
and charged with unlawful possession of a controlled substance, a Class 4 felony (720 ILCS
570/402(c) (West 2020)). The charge was based on a quantity of LSD found in the back seat
during the search that is not directly involved in the issue defendant raises on appeal.
¶6 Defendant filed a motion to suppress evidence, arguing the officer lacked
probable cause to search the vehicle because cannabis “is a legal substance and the odor alone
does not indicate unlawful activity which provides probable cause to search or seize a person.”
¶7 During the motion hearing, Van Hollebeke testified she detected the odor of raw
cannabis when she was approximately 30 feet away from the vehicle, and the scent grew stronger
as she walked closer to the vehicle. Van Hollebeke described the cannabis odor as
“overwhelming,” and she confirmed it originated from inside the vehicle. After verifying the
driver’s information, Van Hollebeke “instructed” the occupants to produce the cannabis “as well
as the drug paraphernalia.” As the occupants exited the vehicle, the front seat passenger admitted
he possessed “a small amount of cannabis.” Van Hollebeke searched him and the vehicle’s front
passenger seat area, finding cannabis “located in his area.”
-2- ¶8 As Van Hollebeke searched the vehicle’s back seat, defendant became “very
anxious” and, when asked, admitted an “orange container with personal use cannabis” would be
found in the area he occupied before exiting the vehicle. Van Hollebeke found a small amount of
cannabis and a rolled joint in an orange container in the back seat. Defendant was the only
person sitting in the back seat when Van Hollebeke initiated the traffic stop. The cannabis was
not in an odor-proof container, as required by law. See 625 ILCS 5/11-502.1 (West 2020).
¶9 Defense counsel argued Van Hollebeke lacked probable cause to search the
vehicle because, while the odor indicated the presence of cannabis, cannabis was no longer
inherently illegal due to recent legislation. Defense counsel analogized the odor of cannabis to
the odor of alcohol, noting Illinois courts have found the odor of alcohol alone does not justify a
warrantless vehicle search during a DUI investigation.
¶ 10 The State argued cannabis possession was subject to several regulations,
including the requirement that cannabis be transported in an odor-proof container while in a
vehicle. Based on Van Hollebeke’s detection of the odor of cannabis from approximately 30 feet
away, the State argued probable cause existed to believe a violation occurred, namely improper
cannabis transportation.
¶ 11 The circuit court acknowledged the Illinois Supreme Court, in People v. Stout,
106 Ill. 2d 77, 477 N.E.2d 498 (1985), found “a trained and experienced officer who smelled the
odor of cannabis coming from a vehicle had probable cause to search the vehicle.” The circuit
court asserted the central question here was whether Stout remained good law after the Illinois
legislature legalized cannabis possession under certain circumstances. The circuit court stated it
could not “find any distinction or any reason to treat cannabis any differently” from alcohol. The
circuit court granted defendant’s motion to suppress, saying, “[B]ased on *** the fact that
-3- cannabis is now legalized, under certain circumstances, I believe that the odor of cannabis needs
to be treated like the odor of alcohol. I don’t see any *** other rationale to treat it differently.”
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, the State argues the circuit court erred in granting defendant’s motion
to suppress because there was probable cause to search the vehicle. We agree.
¶ 15 When determining whether a circuit court erred in granting a motion to suppress,
we will not reverse the circuit court’s factual findings unless they are against the manifest weight
of the evidence, but we review de novo the ultimate ruling as to whether suppression is
warranted. People v. Hill, 2020 IL 124595, ¶ 14, 162 N.E.3d 260.
¶ 16 “The fourth amendment to the United States Constitution protects the ‘right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ ” People v. Jones, 215 Ill. 2d 261, 268, 830 N.E.2d 541, 548 (2005) (quoting U.S.
Const., amend. IV). While a warrantless search of a vehicle is not per se unreasonable, an officer
needs probable cause to conduct such a search. Hill, 2020 IL 124595, ¶¶ 21-22 (citing California
v. Acevedo, 500 U.S. 565, 569 (1991); Carroll v. United States, 267 U.S. 132 (1925)). “To
establish probable cause, it must be shown that the totality of the facts and circumstances known
to the officer at the time of the search would justify a reasonable person in believing that the
automobile contains contraband or evidence of criminal activity.” Hill, 2020 IL 124595, ¶ 23.
¶ 17 More than 35 years ago, in Stout, our supreme court held the odor of burnt
cannabis, absent further corroborating evidence, provided probable cause to search a vehicle. See
Stout, 106 Ill. 2d at 86-88. The Stout court addressed “whether the detection of the odor of
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2023 IL App (4th) 220209 FILED NO. 4-22-0209 January 25, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Henry County ANDREW L. HALL, ) No. 21CF222 Defendant-Appellee. ) ) Honorable ) Terence M. Patton, ) Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justices Cavanagh and Harris concurred in the judgment and opinion.
OPINION ¶1 Police stopped a vehicle in which defendant, Andrew L. Hall, was a passenger.
The officer noticed the odor of cannabis coming from the vehicle and instructed its occupants to
give her the cannabis and any drug paraphernalia. After another passenger admitted he had a
small amount of cannabis, the officer searched the vehicle. Ultimately, defendant was arrested
and charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West
2020)).
¶2 Defendant filed a motion to suppress evidence, arguing the odor of cannabis alone
did not provide probable cause to search the vehicle. The circuit court granted the motion. ¶3 The State appeals, arguing the circuit court erred in granting the motion to
suppress because the odor of cannabis constituted probable cause to search the vehicle. We
reverse and remand.
¶4 I. BACKGROUND
¶5 In July 2020, while conducting a traffic stop of a vehicle in which defendant was
a passenger, Sarah Van Hollebeke, a police officer with over 28 years’ experience, detected the
odor of cannabis coming from the vehicle. Van Hollebeke, a patrol officer employed by the city
of Colona, eventually searched the vehicle and discovered, inter alia, cannabis and a rolled joint
in an orange container in the back seat, where defendant had been sitting. Defendant was arrested
and charged with unlawful possession of a controlled substance, a Class 4 felony (720 ILCS
570/402(c) (West 2020)). The charge was based on a quantity of LSD found in the back seat
during the search that is not directly involved in the issue defendant raises on appeal.
¶6 Defendant filed a motion to suppress evidence, arguing the officer lacked
probable cause to search the vehicle because cannabis “is a legal substance and the odor alone
does not indicate unlawful activity which provides probable cause to search or seize a person.”
¶7 During the motion hearing, Van Hollebeke testified she detected the odor of raw
cannabis when she was approximately 30 feet away from the vehicle, and the scent grew stronger
as she walked closer to the vehicle. Van Hollebeke described the cannabis odor as
“overwhelming,” and she confirmed it originated from inside the vehicle. After verifying the
driver’s information, Van Hollebeke “instructed” the occupants to produce the cannabis “as well
as the drug paraphernalia.” As the occupants exited the vehicle, the front seat passenger admitted
he possessed “a small amount of cannabis.” Van Hollebeke searched him and the vehicle’s front
passenger seat area, finding cannabis “located in his area.”
-2- ¶8 As Van Hollebeke searched the vehicle’s back seat, defendant became “very
anxious” and, when asked, admitted an “orange container with personal use cannabis” would be
found in the area he occupied before exiting the vehicle. Van Hollebeke found a small amount of
cannabis and a rolled joint in an orange container in the back seat. Defendant was the only
person sitting in the back seat when Van Hollebeke initiated the traffic stop. The cannabis was
not in an odor-proof container, as required by law. See 625 ILCS 5/11-502.1 (West 2020).
¶9 Defense counsel argued Van Hollebeke lacked probable cause to search the
vehicle because, while the odor indicated the presence of cannabis, cannabis was no longer
inherently illegal due to recent legislation. Defense counsel analogized the odor of cannabis to
the odor of alcohol, noting Illinois courts have found the odor of alcohol alone does not justify a
warrantless vehicle search during a DUI investigation.
¶ 10 The State argued cannabis possession was subject to several regulations,
including the requirement that cannabis be transported in an odor-proof container while in a
vehicle. Based on Van Hollebeke’s detection of the odor of cannabis from approximately 30 feet
away, the State argued probable cause existed to believe a violation occurred, namely improper
cannabis transportation.
¶ 11 The circuit court acknowledged the Illinois Supreme Court, in People v. Stout,
106 Ill. 2d 77, 477 N.E.2d 498 (1985), found “a trained and experienced officer who smelled the
odor of cannabis coming from a vehicle had probable cause to search the vehicle.” The circuit
court asserted the central question here was whether Stout remained good law after the Illinois
legislature legalized cannabis possession under certain circumstances. The circuit court stated it
could not “find any distinction or any reason to treat cannabis any differently” from alcohol. The
circuit court granted defendant’s motion to suppress, saying, “[B]ased on *** the fact that
-3- cannabis is now legalized, under certain circumstances, I believe that the odor of cannabis needs
to be treated like the odor of alcohol. I don’t see any *** other rationale to treat it differently.”
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 On appeal, the State argues the circuit court erred in granting defendant’s motion
to suppress because there was probable cause to search the vehicle. We agree.
¶ 15 When determining whether a circuit court erred in granting a motion to suppress,
we will not reverse the circuit court’s factual findings unless they are against the manifest weight
of the evidence, but we review de novo the ultimate ruling as to whether suppression is
warranted. People v. Hill, 2020 IL 124595, ¶ 14, 162 N.E.3d 260.
¶ 16 “The fourth amendment to the United States Constitution protects the ‘right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.’ ” People v. Jones, 215 Ill. 2d 261, 268, 830 N.E.2d 541, 548 (2005) (quoting U.S.
Const., amend. IV). While a warrantless search of a vehicle is not per se unreasonable, an officer
needs probable cause to conduct such a search. Hill, 2020 IL 124595, ¶¶ 21-22 (citing California
v. Acevedo, 500 U.S. 565, 569 (1991); Carroll v. United States, 267 U.S. 132 (1925)). “To
establish probable cause, it must be shown that the totality of the facts and circumstances known
to the officer at the time of the search would justify a reasonable person in believing that the
automobile contains contraband or evidence of criminal activity.” Hill, 2020 IL 124595, ¶ 23.
¶ 17 More than 35 years ago, in Stout, our supreme court held the odor of burnt
cannabis, absent further corroborating evidence, provided probable cause to search a vehicle. See
Stout, 106 Ill. 2d at 86-88. The Stout court addressed “whether the detection of the odor of
cannabis emanating from the defendant’s vehicle gave the arresting officer probable cause to
-4- conduct a warrantless search.” Stout, 106 Ill. 2d at 82. The supreme court found probable cause
existed based on “the particular facts of this case, including the officer’s experience and training
in the detection of controlled substances.” Stout, 106 Ill. 2d at 87.
¶ 18 In Hill, the supreme court chose not to overturn Stout after the enactment of the
Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 130/1 et seq. (West
2016)). Hill, 2020 IL 124595, ¶ 15. The Hill defendant argued cannabis’s odor no longer
established probable cause to conduct a warrantless search of a vehicle and therefore Stout was
no longer binding precedent. Hill, 2020 IL 124595, ¶ 15. The supreme court declined the
opportunity to reverse Stout, finding Hill’s factual context distinguishable from Stout’s—in Hill,
additional evidence beyond the cannabis odor indicated the presence of contraband or criminal
activity, while only the cannabis odor was present in Stout. Hill, 2020 IL 124595, ¶¶ 15-18.
¶ 19 After Hill’s publication, this court found Stout remained good law and binding
precedent in People v. Rowell, 2021 IL App (4th) 180819, 182 N.E.3d 806. In doing so, we
highlighted the supreme court’s refusal to overturn Stout, saying, “[I]n Hill, the Illinois Supreme
Court acknowledged it had the opportunity to overrule its precedent that the smell of cannabis
alone can establish probable cause sufficient to justify the search of a vehicle. The supreme court
declined to do so ***.” Rowell, 2021 IL App (4th) 180819, ¶ 26.
¶ 20 Recently, in People v. Molina, 2022 IL App (4th) 220152, ¶ 24, we addressed
whether changes in the law regarding cannabis regulation “rendered Stout inapplicable to
post-legalization of cannabis factual scenarios.” The Molina defendant insisted the Stout and
Rowell holdings no longer applied after the passage of laws legalizing the possession of
recreational cannabis. Molina, 2022 IL App (4th) 220152, ¶ 24. We disagreed, once again
finding Stout remained binding precedent. See Molina, 2022 IL App (4th) 220152, ¶ 43.
-5- ¶ 21 We observed the Vehicle Code requires cannabis to be transported in an
odor-proof container. Molina, 2022 IL App (4th) 220152, ¶¶ 29-44; see 625 ILCS 5/11-502.1,
11-502.15 (West 2020). We found the plain, harmonious reading of the statutes at issue showed
the legislature “did not intend to end the requirement that cannabis be stored in an odor-proof
container while being transported in a vehicle.” Molina, 2022 IL App (4th) 220152, ¶ 35. We
emphasized the legislature could have, and would have, removed the Vehicle Code’s language
requiring cannabis to be stored in an odor-proof container while in a vehicle if it wished to do so.
Molina, 2022 IL App (4th) 220152, ¶ 37.
¶ 22 We concluded the recent cannabis-related changes in the legal landscape did not
render Stout and Hill inapplicable. Molina, 2022 IL App (4th) 220152, ¶ 43. Accordingly, we
found “(1) Stout remains good law and (2) the smell of raw cannabis, without any corroborating
factors, is sufficient to establish probable cause to search a person’s vehicle.” Molina, 2022 IL
App (4th) 220152, ¶ 52.
¶ 23 Turning to the case at hand, the State argues on appeal that the circuit court erred
in granting defendant’s motion to suppress because Stout and Hill are binding authority over this
court. Defendant insists Stout’s rationale no longer applies because cannabis is legal under
certain circumstances.
¶ 24 As an initial matter, we find this case more analogous to Hill than Molina or Stout
because Van Hollebeke relied on more than the odor of cannabis to provide probable cause to
search the vehicle. See Hill, 2020 IL 124595, ¶ 16 (“Unlike Stout, the officer here relied on more
than the odor of raw cannabis.”). The record shows that Van Hollebeke conducted the search
after she smelled the odor of cannabis and one of the vehicle’s occupants admitted to possessing
cannabis. Specifically, after Van Hollebeke instructed the occupants to produce the cannabis and
-6- any drug paraphernalia, the front seat passenger “said that he had a small amount of cannabis.”
Van Hollebeke subsequently searched the vehicle and found cannabis in the passenger side of the
front seat area, as well as the back seat area, where defendant had been sitting. Thus, Van
Hollebeke relied on the odor of cannabis and the front seat passenger’s admission to establish
probable cause. See Hill, 2020 IL 124595, ¶ 16. Therefore, probable cause existed based on more
than just the odor of cannabis. The odor of cannabis and the front seat passenger’s admission
created probable cause to search the vehicle, and the circuit court erred in granting defendant’s
motion to suppress evidence.
¶ 25 Although the officer here relied on more than the odor of cannabis, had she relied
solely on the cannabis odor to provide probable cause, we would find the reasoning employed by
defendant and the circuit court below unpersuasive.
¶ 26 First, important regulatory differences exist between cannabis and alcohol—
unlike cannabis, alcohol’s legality is not conditioned on its amount, and Illinois law does not
require alcohol to be transported in an odor-proof container. See Molina, 2022 IL App (4th)
220152, ¶ 51; see also 410 ILCS 705/10-10 (West 2020); 625 ILCS 5/11-502.1 (West 2020).
Thus, we disagree with the circuit court, which found no distinction between cannabis and
alcohol and no reason to treat those substances differently.
¶ 27 Second, Stout, which held the odor of cannabis, on its own, provides probable
cause to search a vehicle (Stout, 106 Ill. 2d at 86-88), remains good law and binding precedent.
See Molina, 2022 IL App (4th) 220152, ¶ 22; Rowell, 2021 IL App (4th) 180819, ¶ 26.
Therefore, even without the front seat passenger’s admission, probable cause still existed to
search the vehicle. Van Hollebeke testified that she first detected the odor of raw cannabis when
she was approximately 30 feet away, and the odor grew stronger as she approached the vehicle.
-7- As previously mentioned, the Vehicle Code requires cannabis to be transported in an odor-proof
container while in a vehicle. 625 ILCS 5/11-502.1 (West 2020). Further, it is impossible to
determine from the odor alone whether the quantity to be found is within legal limits. The facts
available to Van Hollebeke when she conducted the search constituted probable cause, as a
reasonable person in her position would believe someone in the vehicle was at least transporting
cannabis in a manner violating the Vehicle Code. See Hill, 2020 IL 124595, ¶ 23. The circuit
court erred in finding otherwise.
¶ 28 III. CONCLUSION
¶ 29 For the foregoing reasons, we reverse the circuit court’s judgment and remand the
matter for further proceedings.
¶ 30 Reversed and remanded.
-8- People v. Hall, 2023 IL App (4th) 220209
Decision Under Review: Appeal from the Circuit Court of Henry County, No. 21-CF-222; the Hon. Terence M. Patton, Judge, presiding.
Attorneys Catherine L. Runty, State’s Attorney, of Cambridge (Patrick for Delfino, David J. Robinson, and Luke McNeill, of State’s Appellant: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Attorneys Matthew Paulson, of Paulson, Vandersnick & Bradfield Law, of for Rock Island, for appellee. Appellee:
-9-