People v. Mallery

2023 IL App (4th) 220528, 228 N.E.3d 856

• Court: Appellate Court of Illinois
• Decided: April 25, 2023
• Docket: 4-22-0528
• Status: Published

Opinion

2023 IL App (4th) 220528 FILED April 25, 2023 NO. 4-22-0528 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Henry County AMY J. MALLERY, ) No. 21CF266 Defendant-Appellee. ) ) Honorable ) Terence M. Patton, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Zenoff concurred in the judgment and opinion.

OPINION

¶1 Following a traffic stop and vehicle search, the State charged defendant, Amy J.

Mallery, with possession of methamphetamine (720 ILCS 646/60(a), (b)(1) (West 2020)).

Defendant filed a motion to suppress the evidence against her based on a lack of probable cause

for the vehicle search. The trial court granted the motion and the State appeals. We reverse and

remand for further proceedings.

¶2 I. BACKGROUND

¶3 In January 2021, Kewanee police officer Eric Peed conducted a traffic stop of a

vehicle being driven by defendant. During the stop, Peed used his police canine to perform a

free-air sniff of the vehicle. The canine had a positive alert, and Peed searched the vehicle. In July

2021, the State charged defendant with possession of less than five grams of methamphetamine (id.) based upon the results of that search.

¶4 In April 2022, defendant filed a motion to suppress evidence, arguing the vehicle

search was unlawful because it was conducted without probable cause. Specifically, she asserted

that because Peed’s canine was trained to alert to the odor of cannabis and cannabis is now a legal

substance in Illinois, its odor alone is not indicative of unlawful activity. Defendant maintained a

police canine that is trained to detect a legal substance is “unreliable” and, thus, its positive alert

cannot provide probable cause for a search. Further, defendant argued that cannabis should now

be treated similarly to alcohol, asserting that probable cause for a vehicle search may not be based

solely upon an officer’s detection of the smell of alcohol.

¶5 In May 2022, the State filed a written response to defendant’s motion. It argued the

“reliability” of Peed’s canine was established because the canine “satisfactorily completed a

certification and training program by an accredited training facility.” The State also pointed out

that Illinois Supreme Court case authority has held that probable cause for a vehicle search exists

based upon the odor of cannabis alone and that such case authority has not been revised or

overruled. Further, it argued that cannabis is not legal in all circumstances. The State asserted that

in Illinois, a person “can only lawfully possess certain amounts of cannabis under limited

circumstances” and that cannabis may not be possessed in a motor vehicle unless it is in an

“odor-proof” container.

¶6 On May 26, 2022, the trial court conducted a hearing on defendant’s motion.

Officer Peed was the only witness to testify at the hearing. He stated that one of his responsibilities

as a police officer was to conduct free-air sniffs with a police canine named Rosco. According to

Peed, Rosco was trained to detect five substances—cocaine, crack cocaine, heroin,

methamphetamine, and cannabis. Rosco’s alerts were the same for each individual substance and

-2- Peed acknowledged that Rosco “could indicate to residual odors” from the five substances when

they were no longer present at the location being searched.

¶7 In January 2021, Peed conducted the underlying traffic stop after observing the

vehicle at issue with a broken taillight and failing to signal at an intersection. The vehicle had three

occupants, and defendant was its driver. During the stop, Peed decided to conduct a free-air sniff

with Rosco because he “had previous knowledge of the defendant and the other occupants of the

vehicle and drug use.” Rosco had a positive alert on the vehicle at the location of the passenger’s

side front door. Because Rosco alerted, Peed searched the vehicle. During the search, he located a

bag at defendant’s feet, which contained “a green, metal pipe, that’s typically used to smoke

cannabis with some burnt residue in the end of it, a digital scale, and two metal spoons that had a

white residue on top of them.” The white residue was determined to be methamphetamine, but the

substance in the metal pipe was never tested.

¶8 Peed testified he received Rosco in October 2015, and they “trained through

January 2016.” He stated Rosco was certified by an accredited training facility and since January

2016, their training was maintained on a monthly basis. The monthly training involved meeting

with other canine handlers at different locations and hiding narcotic substances along with

“distracting odors.” Peed stated the dogs would then be “taken through those areas to confirm that

they [were] alerting to the narcotics and not” the other odors. Peed also conducted his own research

to “stay on top of the law.” He testified that to lawfully transport cannabis in a motor vehicle, the

cannabis must be “inside of a sealed tamper-evident, odor-proof container.”

¶9 Despite changes in the law regarding cannabis, there had not been changes with

respect to Rosco’s training. Peed testified the cannabis used for training was packaged the same

way it had been since he began training with Rosco in 2015, and Rosco’s training did not involve

-3- the use of any odor-proof containers. Peed stated he was familiar with “sealed containers that come

from a dispensary that are supposed to be odor-proof.” He noted that he had located such containers

“on traffic stops where Rosco ha[d] been deployed.” However, during such stops, “open cannabis”

was also always present. Peed stated there had never been an occasion when Rosco alerted on a

vehicle and the only thing “found was a sealed, odor-proof container” with cannabis. Additionally,

Peed testified that, from his training, he had experience encountering the odor of cannabis,

including raw or burnt cannabis. When interacting “with the vehicle” at issue during the underlying

traffic stop, he did not smell the odor of cannabis.

¶ 10 Following Peed’s testimony, the parties presented arguments to the trial court that

were consistent with their written filings. Ultimately, the court granted defendant’s motion to

suppress. In setting forth its decision, the court found the articulated basis for finding that a

canine’s positive alert is probable cause for a search has been that such an alert “only reveals

contraband, it’s only revealing things that are illegal to have under any circumstances.” It

concluded that cannabis no longer fit into such a category because “cannabis is not always

contraband.” The court analogized the use of a cannabis-detecting canine to the use of a thermal

imaging camera, which it noted had been “ruled unconstitutional, because it reveals things other

than illegal activity.” It held as follows:

“So under the reasoning behind the case law that’s saying that it’s probable

cause, since the dogs now, through no fault of their own, can detect innocent

activity, I don’t see how that’s distinguishable from a thermal imaging camera. So

I’m going to find that under the case law that defendant has met their burden of

proof and that it’s not probable cause for a search, since it was based solely on the

[canine] search.”

-4- ¶ 11 Shortly after the trial court granted defendant’s motion to suppress, the State filed

a certificate of impairment, asserting the court’s grant of defendant’s motion to suppress

substantially impaired its ability to prosecute the case.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, the State challenges the trial court’s grant of defendant’s motion to

suppress evidence. It argues defendant failed to meet her burden for the suppression of evidence

and the court’s determination was based on an erroneous application of Illinois law. The State

maintains that a positive alert by a police canine is sufficient probable cause for a warrantless

vehicle search. It contends case authority supporting that proposition remains good law despite

recent changes to the laws regarding cannabis. Further, the State points out that although cannabis

may be legal to possess in some instances, its possession and use remains prohibited in others. In

particular, the State notes provisions of the Illinois Vehicle Code, which require cannabis to be

inside “a sealed, odor-proof, and child-resistant” container when inside a motor vehicle. 625 ILCS

5/11-502.1, 11-502.15 (West 2020).

¶ 15 Defendant responds by arguing that recent changes to the law, including the passage

of the Cannabis Regulation and Tax Act (Pub. Act 101-27 (eff. June 25, 2019) (adding 410 ILCS

705/1-1 et seq.)), have made the possession and use of cannabis “explicitly legal” and, thus, no

longer contraband. She contends that “[c]hanging the status of cannabis from always illegal to

explicitly legal and sometimes illegal based on the circumstances” must “necessarily change[ ] the

treatment of the odor of cannabis alone” with respect to the probable cause analysis. Defendant

asserts that because a canine trained to detect the odor of cannabis could be alerting to an odor

stemming from legal behavior, the odor of cannabis, alone, may not be deemed sufficient probable

-5- cause for a vehicle search.

¶ 16 A. Motions to Suppress

¶ 17 “When a defendant files a motion to suppress evidence, he bears the burden of proof

at a hearing on that motion.” People v. Brooks, 2017 IL 121413, ¶ 22, 104 N.E.3d 417. “A

defendant must make a prima facie case that the evidence was obtained by an illegal search or

seizure.” Id. “A prima facie showing means that the defendant has the primary responsibility for

establishing the factual and legal bases for the motion to suppress.” Id. “If a defendant makes a

prima facie case, the burden shifts to the State to present evidence to counter the defendant’s

prima facie case.” Id. “However, the ultimate burden of proof remains with the defendant.” Id.

¶ 18 “A trial court’s decision on a motion to suppress is reviewed under a two-part

standard.” People v. Salamon, 2022 IL 125722, ¶ 75, 202 N.E.3d 283. “Factual findings by the

trial court will be reversed only if they are against the manifest weight of the evidence, but the

ultimate legal determination as to whether suppression is warranted is reviewed de novo.” Id.

¶ 19 B. Warrantless Vehicle Searches

¶ 20 Here, defendant sought the suppression of evidence based on a claim that the

underlying vehicle search was unlawful. Both our federal and state constitutions protect against

unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; see People

v. Timmsen, 2016 IL 118181, ¶ 9, 50 N.E.3d 1092 (“The fourth amendment to the United States

Constitution, which applies to the states under the fourteenth amendment, and article I, section 6,

of the Illinois Constitution protect people against unreasonable searches and seizures.”).

“Generally, a search is per se unreasonable if conducted without a warrant supported by probable

cause and approved by a judge or magistrate.” People v. Hill, 2020 IL 124595, ¶ 20, 162 N.E.3d

260. However, there are recognized exceptions to the general rule, including one for automobile

-6- searches. Id. ¶ 21. The rationale for such an exception is that the “transient nature” of an

automobile “often renders it impracticable to secure a warrant before the automobile escapes the

jurisdiction in which the warrant must be sought.” Id. “Therefore, a warrantless search of an

automobile is not per se unreasonable.” Id.

¶ 21 Although a police officer may search a vehicle without a warrant, the officer’s

search must still be supported by probable cause. Id. ¶ 22. “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.” Id. ¶ 23. “Probable cause deals with probabilities, not certainties” and “[i]t is

a flexible, commonsense standard that does not demand any showing that such a belief be correct

or more likely true than false.” (Internal quotation marks omitted.) Id. ¶ 24. Also, “probable cause

does not require an officer to rule out any innocent explanations for suspicious facts.” Id. “Instead,

it requires only that the facts available to the officer—including the plausibility of an innocent

explanation—would warrant a reasonable man to believe there is a reasonable probability that

certain items may be contraband or stolen property or useful as evidence of a crime.” (Internal

quotation marks omitted.) Id.

¶ 22 Significantly, in People v. Stout, 106 Ill. 2d 77, 87-88, 477 N.E.2d 498, 502-03

(1985), the supreme court held that a police officer’s detection of the odor of cannabis from the

defendant’s vehicle, without any additional corroboration, was “a permissible method of

establishing probable cause” for a warrantless search. A police canine’s detection of the odor of

narcotics has received the same treatment. See People v. Campbell, 67 Ill. 2d 308, 315-16, 367

N.E.2d 949, 953 (1977) (“It is clear that the detection of narcotics by police smelling the odor is a

permissible method of establishing probable cause [citations], and we see no significant difference

-7- in the use of dogs under identical circumstances.”); People v. Staley, 334 Ill. App. 3d 358, 367,

778 N.E.2d 362, 369 (2002) (“[T]he detection of narcotics by a trained dog is a permissible method

of establishing probable cause.”); People v. Neuberger, 2011 IL App (2d) 100379, ¶¶ 9-10, 959

N.E.2d 195 (stating a canine’s “alert supplied probable cause to search the vehicle in which [the]

defendant had been traveling” and finding “no reason to reach a different result *** merely because

the presence of drugs was detected via canine, rather than human, olfaction”); People v. Reedy,

2015 IL App (3d) 130955, ¶ 46, 39 N.E.3d 318 (“An alert by a trained narcotics canine to the

presence of narcotics inside a vehicle creates probable cause to search that vehicle.”); People v.

Thomas, 2018 IL App (4th) 170440, ¶ 74, 115 N.E.3d 325 (“If a dog smells drugs in a vehicle, the

police have probable cause to search the vehicle ***.”).

¶ 23 C. Changes in Illinois Cannabis Law and Subsequent Case Authority

¶ 24 As both parties acknowledge, Illinois law as it relates to the possession and use of

cannabis has rapidly changed in recent years. Prior decisions of this court have set forth a brief

history of those changes:

“In 2014, the State of Illinois legalized the possession of cannabis for people

to whom the State had granted a license to use cannabis for medical purposes. See

410 ILCS 130/1 et seq. (West 2014). In 2016, the State of Illinois passed a law

stating that a licensed user of medical cannabis ‘shall not be considered an unlawful

user’ and that medical cannabis ‘purchased by a qualifying patient at a licensed

dispensing organization shall be lawful products.’ 410 ILCS 130/7 (West 2016).

Also in 2016, the State of Illinois decriminalized the possession of less than 10

grams of cannabis and defined possession of less than 10 grams as a ‘civil law

violation.’ 720 ILCS 550/4(a) (West 2016).” People v. Rowell, 2021 IL App (4th)

-8- 180819, ¶ 25, 182 N.E.3d 806.

Additionally, more recent changes include the following:

“In June 2019, the State of Illinois legalized the possession of small amounts

of cannabis for recreational use through the Cannabis Regulation and Tax Act (Pub.

Act 101-27 (eff. June 25, 2019) (adding 410 ILCS 705/1-1 et seq.)), allowing,

among other things, recreational cannabis to be transported in a private vehicle if it

‘is in a reasonably secured, sealed container and reasonably inaccessible while the

vehicle is moving’ (410 ILCS 705/10-35(a)(2)(D) (West 2020)). At the same time,

the legislature amended section 11-502.1 and added section 11-502.15 of the

Vehicle Code to allow drivers and passengers to transport medical and recreational

cannabis if it is placed ‘in a sealed, odor-proof, and child-resistant’ cannabis

container. (Emphasis added.) 625 ILCS 5/11-502.1 (West 2020) (amended by Pub.

Act 101-27, § 900-38 (eff. June 25, 2019)); id. § 11-502.15 (added by Pub. Act

101-27, § 900-38 (eff. June 25, 2019)).” People v. Molina, 2022 IL App (4th)

220152, ¶ 19.

¶ 25 Following the 2014 and 2016 changes that legalized medical cannabis and

decriminalized small amounts of cannabis, the Illinois Supreme Court was asked to overrule its

prior holding in Stout—that the odor of burnt cannabis alone provided an officer with probable

cause to search a vehicle. Hill, 2020 IL 124595, ¶ 15. The court declined to do so, finding it

unnecessary to address that “narrow legal issue” where the officer in the case before it considered

more than just the odor of cannabis before conducting the warrantless vehicle search at issue. Id.

¶¶ 15-18. The court went on to hold that probable cause for the search existed in that case based

on the defendant’s delay in pulling over for the traffic stop, the passenger’s revelation that he

-9- smoked cannabis and did so earlier in the day, the officer’s observation of “a loose ‘bud’ in the

backseat,” and the officer smelling the strong odor of cannabis. Id. ¶ 35.

¶ 26 In reaching its decision in Hill, the supreme court rejected the defendant’s argument

that decriminalizing certain amounts of cannabis and legalizing medical cannabis meant that the

possession of a small amount of cannabis was no longer a criminal activity and not contraband. Id.

¶ 25. The court stated that contraband “encompasses all items that are unlawful to possess,

regardless of the accompanying penalty.” Id. ¶ 30. It noted that “[w]hile the decriminalization of

cannabis diminished the penalty for possession of no more than 10 grams of cannabis to a civil

law violation punishable by a fine, possession of cannabis remained illegal.” Id. ¶ 31. Thus, it held

that “the decriminalization of possessing small amounts of cannabis did not alter the status of

cannabis as contraband.” Id.

¶ 27 The supreme court did agree that the legalization of medical cannabis supported the

“defendant’s argument that cannabis [was] no longer contraband in every circumstance.” Id. ¶ 32.

It stated that “[b]ecause medical users are capable of legally possessing cannabis, *** possession

of cannabis is not contraband for medical users.” Id. Nevertheless, it rejected the defendant’s

argument that “because cannabis may legally be owned in some circumstances, the officers [in the

underlying case] needed more facts to suggest the cannabis was illegally owned or connected to

another criminal activity.” Id. ¶ 33. It noted as follows:

“While the mere presence of cannabis for medical users may no longer be

immediately attributable to criminal activity or possession of contraband, such

users must possess and use cannabis in accordance with the [law]. Notably, *** the

Illinois Vehicle Code prohibits any driver or passenger, who is a medical cannabis

cardholder, from possessing cannabis within an area of the motor vehicle ‘except

- 10 - in a sealed, tamper-evident medical cannabis container.’ ” Id. ¶ 34 (quoting 625

ILCS 5/11-502.1(b), (c) (West 2016)).

The court held that together, the facts in the case before it indicated “that cannabis was in the car

and, likely, not properly contained,” establishing “probable cause that evidence of a crime was in

the vehicle.” Id. ¶ 35.

¶ 28 Shortly thereafter, this court held that following Hill, “Stout remains good law and

binding precedent.” Rowell, 2021 IL App (4th) 180819, ¶ 26. In Rowell, we stated as follows:

“In this case, we must follow the lead of the Illinois Supreme Court. It is

important to recognize that the Illinois Supreme Court earlier this very year

declined in Hill to overrule Stout. [Citation.] The Hill decision demonstrates that

the holding in Stout—namely, that the scent of cannabis alone provides probable

cause for a search—was in force in 2017 at the time of the search in this case.” Id.

¶ 28.

More recent decisions of this court have continued to affirm Rowell’s holding that Stout continues

to be good law, even subsequent to the passage of laws in 2019 that legalized cannabis for

recreational use. See Molina, 2022 IL App (4th) 220152, ¶ 52; People v. Hall, 2023 IL App (4th)

220209, ¶ 27.

¶ 29 In Molina, 2022 IL App (4th) 220152, ¶ 4, the defendant was charged in December

2020 with unlawful possession of cannabis by a passenger in a motor vehicle after a traffic stop.

See 625 ILCS 5/11-502.15(c) (2020) (“No passenger may possess cannabis within any passenger

area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-

resistant cannabis container.”). The facts in that case showed the police officer conducting the stop

“smelled the strong odor of raw cannabis” when he approached the passenger side of the vehicle.

- 11 - Molina, 2022 IL App (4th) 220152, ¶ 5. He then searched the vehicle “[b]ased solely on that smell”

and discovered the cannabis that formed the basis for the charged offense. Id. The defendant sought

the suppression of evidence, arguing that recent changes to the law, including the passage of the

Cannabis Regulation and Tax Act in 2019, “rendered the smell of raw cannabis on its own

insufficient to constitute probable cause.” Id. ¶ 6. The trial court granted the defendant’s motion

to suppress, and the State appealed. Id. ¶¶ 7-10.

¶ 30 On review, this court reversed the trial court’s decision and remanded for further

proceedings. Id. ¶ 59. In doing so, we rejected the defendant’s arguments that (1) Stout and Rowell

were “inapplicable to post-legalization of cannabis factual scenarios,” and (2) “the 2019

enactments so changed the legal landscape that the mere smell of cannabis no longer provides

probable cause to suspect the presence of contraband.” Id. ¶¶ 24-25. We pointed out just because

cannabis could be legally possessed in some amounts and under specified conditions did “not mean

that all forms of possession are presumed to be legal.” Id. ¶ 41. We stated that “[r]egardless of

recent changes in the law legalizing possession of small amounts of cannabis, there are still, among

other things, (1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal amounts

of it to possess.” Id. ¶ 43.

“Accordingly, an officer who smells cannabis in a vehicle he has just stopped is

almost certain to discover a violation of the Vehicle Code because the law clearly

states that when cannabis is transported in a private vehicle, the cannabis must be

stored in a sealed, odor-proof container—in other words, the cannabis should be

undetectable by smell by a police officer.” (Emphasis in original.) Id. ¶ 44 (citing

625 ILCS 5/11-502.15 (West 2020)).

¶ 31 In Molina, we also emphasized the supreme court’s statement in Hill that

- 12 - “ ‘probable cause does not require an officer to rule out any innocent explanations for suspicious

facts.’ ” Id. ¶ 48 (quoting Hill, 2020 IL 124595, ¶ 24). Further, we rejected the defendant’s

argument that changes in cannabis law required it to now be treated in the same manner as alcohol,

noting “[a]lcohol is regulated differently than cannabis” and it is not required “to be transported in

an odor-proof container.” Id. ¶ 51.

¶ 32 Next, in Hall, 2023 IL App (4th) 220209, ¶ 5, the defendant was the passenger of a

vehicle stopped by the police in July 2020. The officer conducting the traffic stop “detected the

odor of cannabis coming from the vehicle” and searched the vehicle, discovering cannabis and

LSD. Id. The defendant filed a motion to suppress, arguing the search lacked probable cause

because cannabis was a legal substance and its odor alone did not indicate unlawful activity. Id.

¶ 6. The trial court granted the defendant’s motion, finding no basis upon which to treat the odor

of cannabis differently than the odor of alcohol, and the State appealed. Id. ¶¶ 11-12.

¶ 33 On review, we reversed the trial court’s decision. Id. ¶ 29. Initially, we found the

circumstances of the underlying search were more similar to what occurred in Hill than in Stout or

Molina because “probable cause existed based on more than just the odor of cannabis,” specifically

an admission by the front seat passenger of the vehicle that he possessed cannabis. Id. ¶ 24.

Nevertheless, we concluded that had the officer “relied solely on the cannabis odor to provide

probable cause,” we would still find the trial court’s reasoning in granting suppression

unpersuasive. Id. ¶ 25. Like in Molina, we noted the regulatory differences between cannabis and

alcohol and found that Stout’s holding remained good law and binding precedent. Id. ¶¶ 26-27.

Additionally, noting the officer’s detection of the odor of raw cannabis when approaching the

vehicle, we stated as follows:

“[T]he Vehicle Code requires cannabis to be transported in an odor-proof container

- 13 - 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 [the officer] 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.” Id. ¶ 27.

¶ 34 Finally, in addition to the above cases, we note an unpublished decision from this

court that addresses similar issues in the context of a positive alert from a police canine—People

v. Webb, 2022 IL App (4th) 210726-U. See Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021) (providing that

a nonprecedential order entered under Rule 23(b) “may be cited for persuasive purposes”). There,

the defendant was charged and found guilty of several drug-related offenses arising out of a March

2018 traffic stop of his tractor trailer. Webb, 2022 IL App (4th) 210726-U, ¶¶ 4, 15. During the

stop, an officer conducted a “free air sniff with his canine partner around [the] defendant’s truck.”

Id. ¶ 9. The canine was trained to detect the odors of several drugs, including cannabis, and had a

positive alert on the defendant’s vehicle. Id. Thereafter, the vehicle was searched, revealing the

presence of cannabis. Id.

¶ 35 On review, the defendant argued his trial counsel was ineffective for failing to seek

the suppression of evidence based on the contention that after the decriminalization of less than 10

grams of cannabis in 2016, a “positive canine alert for drugs, without more, could not” constitute

probable cause for a vehicle search. Id. ¶ 24. This court rejected the defendant’s claim based on

the rationale set forth in Hill. Id. ¶ 35. It also rejected the defendant’s claim that probable cause

was lacking because no evidence showed an officer involved with the stop smelled cannabis,

stating as follows:

- 14 - “Defendant disregards that a positive canine alert for contraband constitutes

probable cause to search a vehicle. [Citations.] At the hearing on the motion to

suppress, [the officer] testified that his canine partner was certified in the detection

of narcotics and, in addition to marijuana, was trained to detect crack cocaine,

methamphetamine, heroin, and ecstasy. Like cannabis, it is illegal to possess any of

those substances. [Citations.] Because [the officer’s] canine alerted to the presence

of at least one of the foregoing illegal substances, probable cause existed for the

search of [the] defendant’s vehicle.” Id. ¶¶ 36-37.

¶ 36 D. This Case

¶ 37 As set forth above, the parties on appeal dispute whether, given the recent changes

to cannabis laws in Illinois, a positive alert from a police canine trained to detect cannabis and

other narcotics is, alone, sufficient to establish probable cause for a vehicle search. Initially, we

note that the record in this case indicates that the totality of the facts and circumstances known to

Officer Peed at the time of the search, which were indicative of drug activity, included more than

just his canine’s positive alert. Specifically, Peed testified at the suppression hearing that he “had

previous knowledge of the defendant and the other occupants of the vehicle and drug use.” His

testimony suggests his familiarity with the three occupants of the vehicle and their illicit use of

drugs. Such circumstances provide additional support for the vehicle search.

¶ 38 However, even assuming that Peed relied solely on the canine’s positive alert, the

relevant case authority supports the State’s contention on appeal that the positive alert, alone, was

sufficient to establish probable cause for the search. In Stout, the supreme court held that the odor

of cannabis, without more, provides probable cause for a warrantless search of a vehicle. Stout,

106 Ill. 2d at 87-88. Following changes in Illinois cannabis law, which made cannabis legal to

- 15 - possess in some circumstances, the court declined to overrule Stout (Hill, 2020 IL 124595, ¶ 15),

and this court has explicitly held that Stout remains good law and binding precedent (Rowell, 2021

IL App (4th) 180819, ¶ 26). Such is true even after the enactment of the Cannabis Regulation and

Tax Act in June 2019, legalizing small amounts of cannabis for recreational use. See Molina, 2022

IL App (4th) 220152, ¶ 52; Hall, 2023 IL App (4th) 220209, ¶ 27.

¶ 39 Defendant offers no direct challenge to case authority that applies the same

proposition when the odor of narcotics is detected by a police canine. If the odor of cannabis

detected by a police officer may establish probable cause for a search, so too may a positive alert

from a trained police dog. See Campbell, 67 Ill. 2d 315-16 (“It is clear that the detection of

narcotics by police smelling the odor is a permissible method of establishing probable cause

[citations], and we see no significant difference in the use of dogs under identical circumstances.”);

Neuberger, 2011 IL App (2d) 100379, ¶¶ 9-10 (stating a canine’s “alert supplied probable cause

to search the vehicle in which [the] defendant had been traveling” and finding “no reason to reach

a different result *** merely because the presence of drugs was detected via canine, rather than

human, olfaction”); Webb, 2022 IL App (4th) 210726-U, ¶ 37 (stating probable cause existed for

a search based on the positive alert of a canine trained to detect several drugs, including cannabis).

¶ 40 Moreover, defendant presents many of the same arguments in this appeal that we

have previously rejected. Defendant argues that because the Cannabis Regulation and Tax Act

“makes possession and use of cannabis explicitly legal,” the odor of cannabis alone may not

provide probable cause of for a vehicle search. She asserts that a canine trained to detect cannabis

could alert to an odor that stems from legal behavior, noting canines can alert to residual odors,

including the odor of cannabis “that attaches to someone’s clothing.”

¶ 41 However, simply because cannabis may be legal in some circumstances, does not

- 16 - mean that it is not unlawful in others. See Molina, 2022 IL App (4th) 220152, ¶ 41 (“Just because

[a] defendant can legally possess some amounts of cannabis under specified conditions does not

mean that all forms of possession are presumed to be legal.”). As we stated in Molina, “[r]egardless

of recent changes in the law legalizing possession of small amounts of cannabis, there are still,

among other things, (1) illegal ways to transport it, (2) illegal places to consume it, and (3) illegal

amounts of it to possess.” Id. ¶ 43.

¶ 42 At the time of the underlying traffic stop in this case, section 11-502.15 of the

Vehicle Code required that when cannabis is being transported in a motor vehicle, it must be “in a

sealed, odor-proof, child-resistant cannabis container.” (Emphasis added.) 625 ILCS 5/11-502.15

(West 2020). A violation of that section is a Class A misdemeanor. Id. § 11-502.15(d). Thus, when

the odor of cannabis is detectable in a vehicle, it is “almost certain” that there has been a violation

of the Vehicle Code. Molina, 2022 IL App (4th) 220152, ¶ 44 (“[A]n officer who smells cannabis

in a vehicle *** is almost certain to discover a violation of the Vehicle Code because *** the

cannabis must be stored in a sealed, odor-proof container—in other words, the cannabis should be

undetectable by smell by a police officer.” (Emphasis in original.)).

¶ 43 Defendant challenges the above statement from Molina on the basis this court

“offer[ed] no scientific evidence” to support it. However, the plain language of section 11-502.15

of the Vehicle Code is clear and unambiguous. People v. Grant, 2022 IL 126824, ¶ 24, 202 N.E.3d

233 (“When the language of a statute is clear and unambiguous, courts may not depart from the

statute’s terms [citation] nor construe the statute other than by its plain language.”). It requires

cannabis to be stored in a sealed container from which the odor of cannabis cannot be detected.

We note that before the trial court, defendant raised the suggestion that it “very well might be that

there’s no such thing as an odor-proof container, especially as it relates to” canines, whose noses

- 17 - are “highly sensitive.” However, as the moving party on the motion to suppress, defendant had the

burden of establishing both the factual and legal bases for her motion. At the hearing on the motion

to suppress, she presented no evidence to support such a claim. To the extent she raises it on appeal,

it is without factual support and must be rejected.

¶ 44 Our decision in Molina also addresses defendant’s contention that because canines

have the ability to detect the residual odors of narcotics, they could positively alert to lawful

activity, including the scent of cannabis on clothing. In Molina, the trial court granted the

defendant’s motion to suppress evidence and, in doing so, theorized that there were many innocent

reasons why a person or their vehicle might smell of cannabis. Molina, 2022 IL App (4th) 220152,

¶ 7. On review, we determined such potential innocent explanations were not fatal to a finding of

probable cause, relying on legal propositions set forth in Hill, and stating as follows:

“ ‘Probable cause deals with probabilities, not certainties. [Citation.] It is a

flexible, commonsense standard that “does not demand any showing that such a

belief be correct or more likely true than false.” [Citation.] Therefore, probable

cause does not require an officer to rule out any innocent explanations for

suspicious facts. [Citation.] Instead, it requires only that the facts available to the

officer—including the plausibility of an innocent explanation—would warrant a

reasonable man to believe there is a reasonable probability “that certain items may

be contraband or stolen property or useful as evidence of a crime.” ’ ” Id. ¶ 48

(quoting Hill, 2020 IL 124595, ¶ 24).

¶ 45 Defendant further appears to suggest that because of the recent changes in cannabis

law that make the drug legal for recreational use, cannabis is no longer contraband. According to

defendant, “Stout and Rowell defined contraband as that of a substance that is illegal to possess in

- 18 - all circumstances.” However, defendant fails to cite to any portion of either decision to support

that specific claim. Notably, in Molina, we stated “that the supreme court in Stout did not limit its

holding in any way that would suggest the smell of cannabis constituted probable cause only

because cannabis was generally illegal.” Id. ¶ 43. Additionally, in Hill, the supreme court held

both that (1) “the decriminalization of possessing small amounts of cannabis did not alter the status

of cannabis as contraband” and (2) cannabis was “no longer contraband in every circumstance”

because it was “not contraband for medical users.” Hill, 2020 IL 124595, ¶¶ 31-32. Accordingly,

we disagree that cannabis can no longer be considered contraband in any context because certain

amounts are legal to possess.

¶ 46 Like she did before the trial court, defendant also maintains that cannabis should

now be treated similarly to alcohol, the possession of which can be both lawful and unlawful. On

appeal, she also relies on the Third District’s decision in People v. Stribling, 2022 IL App (3d)

210098, ¶ 29, which suggested situations involving alcohol are analogous to cannabis fact patterns

and held “that the smell of the burnt cannabis, without any corroborating factors, is not enough to

establish probable cause to search the vehicle.” However, in both Molina and Hall, we rejected the

contention that cannabis should be treated like alcohol. Molina, 2022 IL App (4th) 220152,

¶¶ 50-51; Hall, 2023 IL App (4th) 220209, ¶ 26. Further, in Molina, this court expressed its

disagreement with the Third District’s holding in Stribling, as well as the rationale for that court’s

decision. Molina, 2022 IL App (4th) 220152, ¶ 55. Ultimately, we find defendant’s contentions as

to these points on appeal are unpersuasive, and we continue to adhere to both the reasoning and

holdings of our prior decisions.

¶ 47 Finally, defendant also contends that police canines trained to detect cannabis are a

“tool” capable of detecting legal activity similar to a “thermal-imaging camera” and, thus, the

- 19 - canine’s alert alone cannot provide probable cause for a vehicle search. In Kyllo v. United States,

533 U.S. 27, 29 (2001), the United States Supreme Court considered “whether the use of a

thermal-imaging device aimed at a private home from a public street to detect relative amounts of

heat within the home constitute[d] a ‘search’ within the meaning of the Fourth Amendment.” It

answered the question in the affirmative, concluding that where a device is used to explore details

of the home and was capable of detecting lawful activity, the surveillance was a search and

“presumptively unreasonable without a warrant.” Id. at 40. Later, in Illinois v. Caballes, 543 U.S.

405, 410 (2005), the Supreme Court contrasted the circumstances at issue in Kyllo with situations

involving police canines capable of detecting narcotics, finding a “dog sniff” that occurred during

a lawful traffic stop did not violate the Fourth Amendment. It concluded that “the use of a well-

trained narcotics-detection dog—one that does not expose noncontraband items that otherwise

would remain hidden from public view, [citation]—during a lawful traffic stop, generally does not

implicate legitimate privacy interests.” (Internal quotation marks omitted.) Id. at 409.

¶ 48 We find the issues presented in Kyllo and Caballes differ from the precise issue

presented in this case. Here, the issue is not (and was not before the trial court) the lawfulness

under the Fourth Amendment of the canine’s free-air sniff. Rather, the issue developed and

presented by the parties concerns only whether the canine’s positive alert, by itself, was sufficient

to establish probable cause for the vehicle search by Officer Peed. As stated above, “[t]o 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. All that is

required for probable cause to exist is a “fair probability.” See Florida v. Harris, 568 U.S. 237,

246, n.2 (2013) (“In the usual case, the mere chance that the substance might no longer be at the

- 20 - location does not matter; a well-trained dog’s alert establishes a fair probability—all that is

required for probable cause—that either drugs or evidence of a drug crime *** will be found.”).

¶ 49 Evidence below established that the canine was certified and trained to detect five

narcotic substances—cocaine, crack cocaine, heroin, methamphetamine, and cannabis. His

positive alert on the vehicle in this case established a fair probability that drugs or evidence of a

crime would be found in the vehicle. This is true despite recent changes in the law regarding the

legalization of small amounts of cannabis as “there are still, among other things, (1) illegal ways

to transport it, (2) illegal places to consume it, and (3) illegal amounts of it to possess.” Molina,

2022 IL App (4th) 220152, ¶ 43. Accordingly, probable cause for the vehicle search existed based

upon the canine’s positive alert, and the trial court erred in finding otherwise.

¶ 50 III. CONCLUSION

¶ 51 For the reasons stated, we reverse the trial court’s judgment and remand for further

proceedings.

¶ 52 Reversed and remanded.

- 21 - People v. Mallery, 2023 IL App (4th) 220528

Decision Under Review: Appeal from the Circuit Court of Henry County, No. 21-CF-266; 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:

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