People v. Mallett

2023 IL App (1st) 220920, 250 N.E.3d 949

• Court: Appellate Court of Illinois
• Decided: September 26, 2023
• Docket: 1-22-0920
• Status: Published

Opinion

2023 IL App (1st) 220920 No. 1-22-0920 Second Division September 26, 2023

____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 19 CR 9026 ) KYRA MALLETT, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment and opinion. OPINION

¶1 Following a bench trial, defendant-appellant Kyra Mallett was found guilty of aggravated

unlawful use of a weapon (AUUW) and was sentenced to two years’ probation. Prior to trial,

defendant filed a motion to quash arrest and suppress evidence, which the trial court denied. On

appeal, defendant argues that (1) the trial court erred in denying her motion to quash and suppress

because the police lacked probable cause to search her car and (2) the State failed to present

sufficient evidence that she constructively possessed the gun recovered from her car. For the

reasons that follow, we affirm. No. 1-22-0920

¶2 I. BACKGROUND

¶3 On May 30, 2019, following a traffic stop and a subsequent search of her car, defendant

was charged with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5), (a)(3)(C) (West 2018)).

¶4 On July 9, 2020, defendant filed a motion to quash arrest and suppress evidence,

contending that the search and seizure of her car was not justified where there was no valid search

or arrest warrant and no exception to the warrant requirement justified the stop and arrest of

defendant or the search of her car.

¶5 Prior to the hearing on the motion, the State offered two years’ misdemeanor probation,

which defendant rejected.

¶6 On July 28, 2021, a hearing was held on defendant’s motion to quash arrest and suppress

evidence. The following evidence was presented.

¶7 Chicago police officer Carlos Yanez, Jr., testified that, on May 30, 2019, he was on patrol

with two other officers, Officer Julian Rodriguez and Officer Daniel Symons, in an unmarked

police car. The officers were traveling eastbound on 71st Street at 12:51 p.m. when they attempted

to curb a Volkswagen Tiguan as it turned onto Ashland Avenue. In the car with defendant, who

was driving, was a passenger in the front seat. The basis for the stop was defendant’s failure to

signal 100 feet prior to turning, as is required under city ordinance. According to Officer Yanez,

defendant’s car was stopped at the red light and then the turn signal was activated. The officers

had neither a warrant for defendant nor one to search this car. Defendant stopped the car near 7122

Ashland Avenue, which is in the first block after the intersection.

¶8 Officer Yanez and Officer Symons approached the passenger side of the car, and Officer

Rodriguez approached defendant on the driver’s side. For the safety of the officers, Officer Yanez

asked the passenger if he had a firearm owners identification (FOID) card or concealed carry

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license (CCL). At the same time, Officer Rodriguez requested defendant’s driver’s license. When

defendant opened a compartment to the left of the steering wheel to retrieve her documentation,

Officer Rodriguez opened the driver’s side door, reached into the compartment, recovered a blue-

tinted bag containing white pills, and asked defendant what the pills were. Officer Yanez testified

that he believed the bag contained narcotics because of the packaging. Defendant stated that the

pills were hydrocodone for a C-section procedure and she did not have a prescription for them

with her.

¶9 At Officer Rodriguez’s request, defendant stepped out of the car, as did the passenger. Both

individuals were walked to the back of the car. At that point, Officers Rodriguez and Symons

searched defendant’s car. Using the car keys, which were still in the ignition, Officer Symons

unlocked the glove compartment and recovered a firearm. Defendant and the passenger were then

handcuffed. Neither individual admitted to ownership of the gun.

¶ 10 Officer Yanez was wearing a body camera at the time, which recorded the traffic stop. The

footage was played for the court and Officer Yanez narrated the recording. The recording showed

that Officer Yanez walked to the passenger side of the car while Officer Rodriguez spoke to

defendant. Defendant then leaned down and reached into a compartment to the left of the steering

wheel, at the same time that Officer Yanez asked the passenger if they had a FOID card or a CCL.

Then, Officer Rodriguez opened the driver’s door, reached down, and is seen holding a “blue, clear

knotted bag” containing “white pills.” Officer Yanez at this point testified: “From my experience,

the way I have seen narcotics packaged, I believe it to be narcotics.” On the recording, defendant

then stated that the pills are hydrocodone for her C-section, from which she still has a scar and she

has them packaged in that manner so “they wouldn’t be making all that noise.” At that point, the

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other officers walk over and place both individuals in handcuffs based on the recovery of the gun.

Again, both individuals denied having a FOID or CCL.

¶ 11 On cross-examination, Officer Yanez clarified that he first saw defendant’s car as they

were approaching the intersection of 71st Street and Ashland Avenue. He observed defendant’s

car in the left lane, and she merged into the right-hand lane, came to a stop at the red light, and

activated her turn signal once the light turned green. There were one or two cars between

defendant’s car and the intersection.

¶ 12 Officer Yanez testified that he had been a police officer for six years at that point, had

received narcotics training, and had been involved in over 100 narcotics arrests. Based on his

training and experience, he believed the white pills in the blue plastic bag to be narcotics. Officer

Yanez testified that he asked defendant why the pills were packaged in that way if she had a

prescription, and she responded that she did not like the sound of the pill bottle rattling around in

the car. He further testified that “whenever you’re prescribed a narcotic prescription, it’s supposed

to be in prescription bottle with your name on it,” which he stated was a law but he could not recite

the exact statutory provision.

¶ 13 Officer Rodriguez was also wearing a body camera, which recorded the stop. Officer

Rodriguez’s body camera footage was introduced into evidence, and Officer Yanez testified that

he had reviewed the footage prior to the hearing. In the footage, Officer Rodriguez asked defendant

for her driver’s license, and when she pulled the documents out of a compartment next to the

steering wheel, Officer Rodriguez opened the driver’s door and asked defendant “what are all those

pills right there?” She stated that they were hydrocodone “for my pregnancy, sir, I have a C-section

scar right here.” He instructed defendant to step out of the car because the pills are “packaged not

in a prescription bottle” and he needed to confirm what the pills are. He asked if she has a

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prescription, and she responded, “not with me.” She denied having any medical paperwork for the

pills. Moments later, both individuals are placed in handcuffs after the gun was found in the glove

compartment.

¶ 14 On redirect examination, Officer Symons’s body camera footage was introduced into

evidence. Officer Yanez narrated the footage, stating that it showed Officer Symons opening the

glove compartment, observing a firearm, removing the firearm, clearing the round in the chamber,

and placing the firearm in his pocket for custody.

¶ 15 On September 8, 2021, the trial court heard arguments on the motion.

¶ 16 On September 20, 2021, the trial court denied the motion to quash arrest and suppress

evidence. In so ruling, the court first stated that the stop of defendant was valid based on

defendant’s failure to signal 100 feet prior to turning right in violation of city ordinance. As for

whether the plain view exception applied, the court stated that the officers did not have to know at

the moment the bag of pills was observed that “the item was in fact narcotics” because they

“wouldn’t know that until after it was tested eventually.” The court went on to state that the officers

believed, based on their experience with narcotics, that the pills were contraband, and after

defendant stated that the pills were narcotics for her medical issues, the officers had probable cause

to search the car based on the belief that there might be more contraband. The court also cited to

People v. Molnar, 2021 IL App (2d) 190289, among other cases, and stated that that case “is not

factually exactly the same as [this] case[,] *** but it is not way off from Molnar either.”

¶ 17 The matter proceeded to a bench trial on February 22, 2022, during which the following

evidence was presented.

¶ 18 Officer Symons testified that on May 30, 2019, he was working with Officers Rodriguez

and Yanez. They were patrolling in an unmarked squad car. At approximately 12:51 p.m., the

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officers conducted a traffic stop for failure to use a turn signal 100 feet prior to turning. The car

stopped shortly after turning onto Ashland Avenue. Officer Rodriguez approached defendant on

the driver’s side, while Officers Yanez and Symons approached the passenger’s side of the car.

Officer Symons observed two occupants in the car. At some point, the occupants were asked to

exit the car and taken to the front of the squad car. He later learned that they were asked to do so

because defendant “was in possession of narcotics.” The officers searched the car. Officer Symons

located the key, on a key ring, still in the ignition. Using a key found in the ignition (or a key on

the key ring), Officer Symons unlocked the glove compartment where he found a loaded black 9-

millimeter Taurus handgun with a round in the chamber. After recovering the firearm, both

occupants were placed in custody. Defendant informed the officers that she did not have a FOID

card. Officer Symons later learned that defendant owned the car.

¶ 19 Officer Symons’s body camera footage was again introduced into evidence.

¶ 20 The parties stipulated to the testimony of Officer Yanez from the suppression hearing.

Specifically, they stipulated that Officer Yanez would testify substantially the same as Officer

Symons as to events leading up to the traffic stop. He would also testify that, while standing on

the passenger side of the car, he observed a compartment to the left of the steering wheel, which

defendant opened to retrieve the requested documentation. He then observed Officer Rodriguez

recover a bag of pills from that same compartment. Officer Yanez would testify that defendant

stated that the pills were for her C-section surgery and, regarding the packaging of the pills in a

bag, she stated that she did not like the rattling noise of the pill bottle.

¶ 21 It was also stipulated that defendant did not have a valid FOID card on the date of the

incident.

¶ 22 Defendant made a motion for a directed finding, which the trial court denied.

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¶ 23 Following closing arguments, the trial court found defendant guilty of AUUW. In so

finding, the court stated the following:

“The evidence clearly shows the car was her car, she had control of the car, she had

control of the opening where they found these pills in the car [and] was not far from where

the glove compartment was, and most importantly of all of it, she had the keys or key to

the locked glove compartment where a gun was found at.

***

*** There is no question in my mind that the State proved constructive possession

of [the] gun, constructive possession. Her car, her keys, her glove compartment, especially

locked with a key she had control of.”

¶ 24 Defendant filed a motion for a new trial, arguing that the court erred in denying defendant’s

motion to quash arrest and suppress evidence and that the State failed to prove defendant guilty

beyond a reasonable doubt.

¶ 25 On February 24, 2022, the trial court sentenced defendant to two years’ probation.

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 Defendant raises two major contentions on appeal, one related to the motion to quash arrest

and suppress evidence and the other related to sufficiency of the evidence. We address each in

turn. 1

The traffic stop seemed to us, at first blush, to have been pretextual. We note however, the trial 1

court’s extensive inquiry and review of section 9-40-200(b) of the Chicago Municipal Code (Chicago Municipal Code § 9-40-200(b) (added July 12, 1990)) upon which the stop was based. Defendant raises no issue regarding the legitimacy of the stop.

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¶ 29 A. Motion to Quash Arrest and Suppress Evidence

¶ 30 Defendant first contends that the trial court erred in denying her motion to quash arrest and

suppress evidence because the police lacked probable cause to search her vehicle based on viewing

a blue-tinted, knotted plastic bag containing nondescript white pills.

¶ 31 On a motion to suppress, the burden of proving that a search or seizure was unlawful is on

the defendant. 725 ILCS 5/114-12(b) (West 2018). If the defendant makes a prima facie showing

that the evidence was obtained from an illegal search, the burden then shifts to the State. People v.

Cregan, 2014 IL 113600, ¶ 23. A circuit court’s ruling on a motion to suppress generally involves

a mixed question of law and fact. People v. Lampitok, 207 Ill. 2d 231, 240 (2003).

¶ 32 When reviewing a trial court’s ruling on a motion to suppress evidence, a reviewing court

employs a two-part standard of review, that being manifest weight of the evidence and de novo.

People v. Lindsey, 2020 IL 124289, ¶ 14. First, we will not reverse the trial court’s factual findings

unless they are against the manifest weight of the evidence. Cregan, 2014 IL 113600, ¶ 22. Second,

the legal question of whether the evidence should be suppressed is subject to de novo review. Id.

¶ 33 The fourth amendment of the United States Constitution guarantees “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const., amend. IV. The Illinois Constitution similarly guarantees the right of the

people “to be secure in their persons, houses, papers and other possessions” against unreasonable

searches and seizures. Ill. Const. 1970, art. I, § 6. Therefore, generally, a search and seizure is

reasonable under the fourth amendment only if the government first obtains a warrant issued after

a finding of probable cause. Illinois v. McArthur, 531 U.S. 326, 330 (2001).

¶ 34 However, there are a few specific exceptions to the warrant requirement. Cregan, 2014 IL

113600, ¶ 25. At issue in this case is the plain view exception. There are three requirements for

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the plain view exception to apply: (1) the officer was lawfully in a position from which to view

the object seized in plain view, (2) the object’s incriminating character was immediately apparent,

and (3) the officer had a lawful right of access to the object itself. People v. McCavitt, 2021 IL

125550, ¶ 111.

¶ 35 Of the three requirements for the plain view exception, defendant only challenges the

second, or the immediately apparent requirement. She asserts that “it was not, and could not have

been, immediately apparent to the officers that the pills were evidence of a crime” and thus, the

plain view exception to the search warrant requirement did not apply here. She further argues that

the trial court’s reliance on Molnar, 2021 IL App (2d) 190289, was in error because that case was

wrongly decided.

¶ 36 In response, the State contends that the officers’ training and experience in narcotics-

related investigations and defendant’s subsequent admission that the pills were hydrocodone were

sufficient to establish probable cause to search defendant’s car. The State also asserts that the trial

court did not solely rely on Molnar in reaching its decision, but instead relied on a number of cases

submitted by both parties as well as cases researched by the trial court itself, and in any case,

Molnar was not wrongly decided.

¶ 37 Because the facts in this case are not in dispute, we review the trial court’s legal ruling

de novo. Under that standard and for the following reasons, we find the trial court’s ruling proper

where the officers had probable cause to search defendant’s car pursuant to the plain view

exception.

¶ 38 We consider first the concept of “immediately apparent.” In Texas v. Brown, the United

States Supreme Court gave consideration to the phrase, “immediately apparent,” and noted that it

was “an unhappy choice of words.” 460 U.S. 730, 741 (1983) (opinion of Rehnquist, J., joined by

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White, C.J., and O’Connor, J.). The Court stated that phrase “can be taken to imply that an unduly

high degree of certainty as to the incriminating character of the evidence is necessary for an

application of the ‘plain view’ doctrine.” Id. On the contrary, “ ‘[t]he seizure of property in plain

view involves no invasion of privacy and is presumptively reasonable, assuming that there is

probable cause to associate the property with criminal activity.’ ” (Emphasis in original.) Id. at

741-42 (quoting Payton v. New York, 445 U.S. 573, 587 (1980)). Stated another way, “[t]he

incriminating nature is immediately apparent if the officer has probable cause to believe that the

object is evidence of a crime without searching further.” People v. Sinegal, 409 Ill. App. 3d 1130,

1135-36 (2011); see also People v. Jones, 215 Ill. 2d 261, 277 (2005) (the “immediately apparent”

or “probable cause” element requires “sufficient evidence to justify the reasonable belief that the

defendant has committed or is committing a crime.”). As such, in determining whether the object’s

incriminating character was immediately apparent, our focus is on probable cause.

¶ 39 “Probable cause means less than evidence which would justify a conviction” (id.) but more

than a “mere suspicion” is necessary (People v. Kidd, 175 Ill. 2d 1, 22 (1996)). “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.” People v. Hill, 2020 IL 124595, ¶ 23. We

further recognize that “[p]robable cause deals with probabilities, not certainties” and “does not

require an officer to rule out any innocent explanations for suspicious facts.” Id. ¶ 24. Instead,

probable cause “requires only that the facts available to the officer—including the plausibility of

an innocent explanation—would warrant a reasonable [person] to believe there is a reasonable

probability ‘that certain items may be contraband or stolen property or useful as evidence of a

crime.’ ” Id. (quoting Brown, 460 U.S. at 742). “[I]n deciding whether probable cause exists, a law

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enforcement officer may rely on training and experience to draw inferences and make deductions

that might well elude an untrained person.” Jones, 215 Ill. 2d at 274; see also People v. Petty, 2017

IL App (1st) 150641, ¶ 31 (stating that a law enforcement officer views the facts through the lens

of his experience and expertise and may draw inferences based on that experience in determining

whether probable cause exists (citing Ornelas v. United States, 517 U.S. 690, 699-700 (1996))).

¶ 40 In the case before us, the evidence showed that it was immediately apparent to Officer

Yanez, i.e., he had probable cause to believe, that the white pills in the blue-tinted, knotted baggie

were illegal narcotics based on his narcotics training and over 100 narcotics arrest during his six-

year career. He specifically testified: “From my experience, the way I have seen narcotics

packaged, I believe[d] it to be narcotics.” His reasonable belief was further bolstered when

defendant informed the officers that the pills were hydrocodone, which he immediately knew to

be a controlled substance. Officer Yanez also testified that he was aware of a law making it

unlawful to store prescription drugs in a non-labeled container, and in any case, defendant did not

offer a prescription for the hydrocodone. Although the white pills could have been prescribed to

the defendant, probable cause does not require that Officer Yanez knew with absolute certainty

that the pills in the baggie were unlawfully possessed. See Sinegal, 409 Ill. App. 3d at 1135

(“[P]robable cause to believe that a package contains contraband does not require absolute

certainty.” (citing Brown, 460 U.S. at 742)). Accordingly, given Officer Yanez’s training and

experience, we conclude that he had probable cause to believe that the white pills found in a blue-

tinted, knotted plastic baggie contained illegal narcotics. See Jones, 215 Ill. 2d at 281 (“Law

enforcement experience is relevant in determining probable cause ***.”).

¶ 41 Defendant argues that “the presence of an innocuous object—white pills—especially

where [defendant] provided a lawful justification for having the pills” did not give rise to probable

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cause to search her car. We disagree with this argument. Although she may have been justified in

possessing the hydrocodone, an officer does not have “to rule out any innocent explanations for

suspicious facts.” Hill, 2020 IL 124595, ¶ 24. The pills might have in fact appeared innocuous to

the officer had they been packaged in an original pill bottle and properly labeled. The packaging

was suspect, and based on the officer’s six years of experience and narcotics training, he

reasonably believed the baggie contained contraband.

¶ 42 Defendant repeatedly points out that “no evidence that the pills were, indeed, contraband

ever came to light, where [she] was never charged with a narcotics offense stemming from this

incident.” Defendant’s point, however, is not pertinent to our probable cause analysis. That

defendant was not ultimately charged with a drug-related offense has no bearing on whether at the

time of the stop the officer had probable cause to believe that the pills constituted evidence of a

crime. There is no requirement under the fourth amendment that a valid search must actually

uncover evidence of the crime suspected. We are aware of no case standing for such proposition,

and defendant cites to none.

¶ 43 In addressing the parties’ cited cases for support, we first note that the opinion of one

appellate court district, division, or panel is not binding on others. O’Casek v. Children’s Home &

Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008).

¶ 44 Defendant cites People v. Garcia, 2012 IL App (1st) 102940, as instructive. In Garcia, the

trial court found that the officers had probable cause to seize a clear plastic baggie protruding from

the defendant’s front pocket under the plain view exception. Id. ¶ 2. The officer testified that, based

upon her more than 13 years of experience, including over 300 narcotics-related arrests, she

believed that the clear, knotted plastic baggie might contain illegal narcotics. Id. ¶ 8. On appeal,

this court concluded that “[b]ased on the circumstances of the traffic stop and objectively looking

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at the totality of the circumstances known to [the officer] when she made the stop,” the officer did

not have probable cause to seize the bag from the defendant’s pocket. Id. ¶ 11.

¶ 45 Garcia is distinguishable. Here, unlike in Garcia, the officers could plainly see the entire

bag and that it contained a number of white pills, which the officers learned was hydrocodone, and

defendant admittedly did not have a prescription with her. We find a wide evidentiary gap between

merely seeing a portion of a clear, plastic bag, a common household item used for a number of

innocuous purposes, and seeing a blue-tinted, knotted baggie containing pills, which is not a

common way to carry prescribed medication. Therefore, we do not find Garcia instructive.

¶ 46 Defendant also cites People v. Humphrey, 361 Ill. App. 3d 947, 953 (2005). There, the

defendant was pulled over for speeding. When the state trooper approached the car, he observed a

small, clear plastic container holding several hundred small white tablets underneath the

passenger’s seat, as well as loose tinfoil. Id. at 948-49. The trooper requested that the passenger

hand him the container, and when the passenger did so, he informed the trooper that the pills were

pseudoephedrine. Id. at 949. The trooper had the passenger step out of the car, and the passenger

stated that he was going to take the pills to Missouri to make methamphetamine. Id. More pills

were found during the trooper’s search of the car, and the defendant also stated that they were

going to make methamphetamine with the pills. Id. The trooper later testified that the number of

pills in the container led him to believe they were contraband. Id.

¶ 47 On appeal, this court concluded that the plain view exception did not apply because the

incriminating nature of the container of pills was not immediately apparent. Id. at 950. The court

pointed to the trooper’s testimony that he did not know what the pills were and he was not sure,

even after learning that they were pseudoephedrine, whether their possession constituted a

chargeable offense. Id. at 951. The court also rejected the State’s contention that its holding

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“create[s] a requirement of near certainty on the part of an officer.” Id. Rather, the court stated that

“there need be only sufficient evidence to justify the reasonable belief that the defendant has

committed or is committing a crime,” which was not present in the case before it. Id.

¶ 48 We find, as we did with Garcia, the facts in Humphrey to be distinguishable from the

instant case. In Humphrey, unlike in this case, the state trooper testified that, at the time he

conducted the search, he was not sure what the pills were and once he learned the pills were

pseudoephedrine, he was still unsure if possession of pseudoephedrine was illegal. Id. at 950-51.

There was also an insufficient foundation laid to evidence the trooper’s experience and training to

support his warrantless search. Contrarily, in this case, Officer Yanez unequivocally stated that he

knew hydrocodone to be a narcotic and that the packaging of the pills based on his narcotics

training, six years of experience, and over 100 narcotics arrests suggested criminal activity. See

People v. Lee, 2018 IL App (3d) 160100, ¶ 20 (“A substance or item’s packaging and/or location

can legally justify a seizure.”); see also Molnar, 2021 IL App (2d) 190289, ¶ 18 (distinguishing

Humphrey on the basis that the officer in the case before it believed the pills were contraband prior

to seizing them and the officer knew Xanax was a controlled substance requiring a prescription).

As such, the analysis in Humphrey is unavailing.

¶ 49 Defendant also asserts that the trial court erred in relying on Molnar as support for its denial

of the motion. She contends that Molnar was wrongly decided in that the court there “ignores the

stringency of the ‘immediately apparent’ requirement of the plain view exception,” or, in the

alternative, “even if it were not wrongly decided, the facts of Molnar are distinguishable from

those in the instant case.”

¶ 50 In Molnar, a police officer responded to a call regarding two vehicles stopped in relation

to a reported altercation. 2021 IL App (2d) 190289, ¶ 4. The officer approached one of the vehicles,

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where the defendant was seated in the front passenger seat. Id. The defendant exited the vehicle

without being asked, and as she did so, the officer shined a flashlight into the vehicle. Id. ¶ 5. He

asked the defendant about a pill bottle he observed on the passenger seat. The defendant responded

that it was her Xanax, and she retrieved the bottle, which did not have a label, and handed it to the

officer. The officer saw that the bottle contained pills as well as a plastic baggie, and he asked why

the bottle did not have a label. The defendant responded that she took the pills from her house and

that her husband did not know she took Xanax. She also denied having a prescription for the pills

and stated that she “got them from somebody.” She did not know what was in the plastic baggie.

Id. The officer testified that he knew Xanax to be a controlled substance and he believed the pills

to be illegal as soon as he saw them. Id. ¶ 6. An examination of the bottle showed that it contained

different types of pills, and residue in one of the baggies tested positive for cocaine. Id. The trial

court denied the defendant’s motion to suppress. Id. ¶ 7.

¶ 51 As in the case before us, the defendant argued on appeal that the incriminating nature of

the pills was not immediately apparent. Id. ¶ 13. The Second District of this court concluded that

the incriminating nature of the pills was immediately apparent and the pills were thus lawfully

seized. Id. ¶ 18. The court’s determination was based on the officer’s testimony that (1) he believed

the pills were contraband before being seized; (2) he immediately knew that Xanax, which the

defendant admitted they were, was a controlled substance requiring a prescription; and (3) he

believed the packaging, i.e., an unlabeled bottle with baggies inside, demonstrated that the

defendant likely did not have a prescription. Id.

¶ 52 Contrary to defendant’s posture, we find the facts in Molnar similar enough to those before

us to support our conclusion that the search of defendant’s car was valid. Here, Officer Yanez

testified that he believed the blue-tinted, knotted plastic baggie containing white pills to be illegal

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narcotics based on his six years of experience and over 100 narcotics arrests, and he also knew

hydrocodone, which defendant admitted it was, to be a controlled substance. The only difference

worth noting is that, in Molnar, the defendant admitted to not having a prescription, and here,

defendant stated that she had them for her C-section surgery. However, as we have already stated,

an officer is not required to take as fact explanations offered if he or she believes that the item is

contraband. Moreover, defendant did not have her prescription with her.

¶ 53 Defendant additionally argues that the Molnar court erroneously relied on section 312(g)

of the Illinois Controlled Substances Act (720 ILCS 570/312(g) (West 2018)) to support its finding

that there was probable cause to search the car. The provision states: “A person to whom or for

whose use any controlled substance has been prescribed or dispensed by a practitioner *** may

lawfully possess such substance only in the container in which it was delivered to him or her by

the person dispensing such substance.” Id. Specifically, defendant argues that the Molnar court

misinterpreted this section because the provision has no penalty for its violation and thus a

violation of the provision does not constitute a “crime.” She further contends that section 312(g)

of the statute is “geared towards the registration and regulation of entities dispensing narcotics”

and should not be used to justify warrantless searches under the fourth amendment.

¶ 54 In Molnar, the court cited to this provision in support of its finding and rejected the

defendant’s argument that the provision “says nothing to suggest that the original label must

remain on the bottle.” 2021 IL App (2d) 190289, ¶ 18. The court stated that the logical inference

from an unlabeled bottle containing pills and a plastic baggie is that the container is not the original

container for the controlled substance. Id. Thus, the violation of that statutory provision supported

the court’s finding of probable cause. Id.

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¶ 55 In the case before us, Officer Yanez generally cited the requirement that “whenever you’re

prescribed a narcotic prescription, it’s supposed to be in prescription bottle with your name on it,”

which he stated was a law but he could not recite the exact statutory provision. In our view, the

reference to the statute was not to suggest that the search was entirely premised on the violation

thereof. Rather, the violation of the statute was merely one factor, among several, about which

Officer Yanez had knowledge and therefore probable cause to believe that the pills were

contraband. Our analysis here is similar in that we considered Officer’s Yanez experience and

expertise, his knowledge of the substance, the packaging, the lack of a prescription on defendant’s

person, and the violation of this statutory provision. Contrary to defendant’s assertion, whether

defendant could have been charged and penalized for violating section 312(g) in this case is not a

necessary predicate for the finding of probable cause.

¶ 56 Notably, our supreme court in Hill has held that “[c]ontraband *** encompasses all items

that are unlawful to possess, regardless of the accompanying penalty.” 2020 IL 124595, ¶ 30.

Concerning cannabis, the court explained that probable cause to search for evidence of a crime can

exist even though there are circumstances where the observed contraband may be possessed

lawfully. Id. ¶¶ 34-36. In so concluding, the court cited several cases involving lawful vehicle

searches based on the smell of alcohol or observations of open containers, even though it is not

unlawful to simply possess alcohol in a vehicle. See id. ¶ 36. Similarly, we conclude that, although

there appears to be no accompanying penalty for violation of section 312(g), the possession of

narcotics in a container other than a labeled prescription bottle reasonably gives rise to a strong

inference of illegality.

¶ 57 Finally, although we believe probable cause existed for the seizure even absent reference

to section 312(g), we nonetheless express our disagreement, both with defendant’s characterization

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of the purpose of the statute as well her proposed limitation on its use. First, although section 312

is titled as “Requirements for dispensing controlled substances” (720 ILCS 570/312(g) (West

2018)), the Illinois Controlled Substances Act, read as a whole, was enacted with the intent “to

provide a system of control over the distribution and use of controlled substances” and to “deter

the unlawful and destructive abuse of controlled substances.” (Emphasis added.) Id. § 100. This

intent broadly applies to all those involved in the dispensing and use of controlled substances. As

such, although the inclusion of a provision directed towards individuals, as opposed to the entities

dispensing controlled substances, in section 312 is seemingly misplaced, that does not negate the

applicability of the provision. Second, as the State points out, the provision at bar is directed at the

person, defined as “any individual *** or any other entity,” in possession of the controlled

substance. Id. §§ 102(gg), 312(g). Therefore, despite the absence of a specific penalty for a

violation of section 312(g), clear from its language is the legislature’s intent that prescribed

controlled substances be maintained in the original container in which they were dispensed.

¶ 58 Accordingly, we reject defendant’s arguments on appeal and find that the trial court did

not err in denying the motion to quash arrest and suppress evidence.

¶ 59 B. Sufficiency of the Evidence

¶ 60 Defendant next argues that the evidence presented at the bench trial was insufficient to

prove beyond a reasonable doubt that she constructively possessed the firearm recovered from her

car. The State responds that there was ample evidence to support the finding of constructive

possession where the firearm was located in the locked glove compartment of defendant’s car, to

which she possessed a key, and she was driving the car at the time of the stop.

¶ 61 When a defendant challenges the sufficiency of the evidence against him, this court must

determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution,

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any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court will not retry the defendant or substitute

its judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to

be given to each witness’s testimony. People v. Jackson, 232 Ill. 2d 246, 281 (2009). A defendant’s

conviction will be reversed only when the evidence is so unreasonable, improbable, or

unsatisfactory that it creates a reasonable doubt of his guilt. People v. Newton, 2018 IL 122958,

¶ 24.

¶ 62 We reiterate that the “determination of the weight to be given to witnesses’ testimony, their

credibility, and the reasonable inferences to be drawn [therefrom] from the evidence” are well

within the purview of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226 (1991). Additionally,

a criminal conviction “may be based solely on circumstantial evidence”; however, “the same

standard of review applies whether the evidence is direct or circumstantial.” People v. Brown,

2013 IL 114196, ¶ 49.

¶ 63 The State has the burden of proving beyond a reasonable doubt each element of an offense.

People v. Gray, 2017 IL 120958, ¶ 35. In the instant case, defendant was found guilty of AUUW

pursuant to section 24-1.6 of the Code (720 ILCS 5/24-1.6 (West 2018)), and she was found to

have had constructive possession of the firearm without a FOID card pursuant to certain

subsections, which, in total, provide as follows:

“(a) A person commits the offense of aggravated unlawful use of a weapon when

he or she knowingly;

(1) Carries on or about his or her person or in any vehicle or concealed on

or about his or her person except when on his or her land or in his or her abode,

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legal dwelling, or fixed place of business, or on the land or in the legal dwelling of

another person as an invitee with that person’s permission, any pistol, revolver, stun

gun or taser or other firearm; and

(3) One of the following factors is present:

(A-5) the pistol, revolver, or handgun possessed was uncased,

loaded, and immediately accessible at the time of the offense and the person

possessing the pistol, revolver, or handgun has not been issued a currently

valid license under the Firearm Concealed Carry Act [(420 ILCS 66/1 et

seq. (West 2018))]; or

(C) the person possessing the firearm has not been issued a currently

valid Firearm Owner’s Identification Card[.]” Id. § 24-1.6(a)(1), (a)(3)(A-

5), (a)(3)(C).

Accordingly, as relevant here, the State was required to establish beyond a reasonable doubt that

(1) defendant knowingly carried a firearm in any vehicle; (2) the firearm was uncased, loaded, and

immediately accessible to defendant; and (3) defendant possessed neither a valid FOID card nor a

CCL.

¶ 64 In the instant case, there is no dispute that the firearm was found in a car that defendant

owned and was driving at the time. It is not disputed that the firearm was retrieved from the glove

compartment, that it was uncased and loaded, and that defendant did not possess a valid FOID card

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or CCL. The only element of the crime that defendant disputes on appeal is whether she knowingly

possessed a firearm. Because the firearm was not found on defendant’s person, constructive

possession, as opposed to actual possession, is at issue. Defendant argues that the trial court erred

in finding constructive possession. Specifically, she asserts that her status as the owner and driver

of the car was not conclusive as to constructive possession: neither of the officers saw her touch

the firearm at any point, she never made any statements suggesting she had knowledge of the

firearm, and there was a passenger in the car who was sitting closer to the glove compartment.

¶ 65 “Possession may be actual or constructive and is often proved with circumstantial

evidence.” People v. Jackson, 2019 IL App (1st) 161745, ¶ 27. To prove constructive possession,

the State must establish a defendant’s knowledge and control of the contraband. Id. “Knowledge

may be inferred from the surrounding circumstances, such as the defendant’s actions, declarations,

or other conduct, which indicate that the defendant knew the contraband existed in the place where

it was found.” Id. To establish control, the State must prove that a defendant had “immediate and

exclusive control” over the location where the contraband was recovered. Id. Where control has

been established, an inference of culpable knowledge can be drawn from the surrounding facts and

circumstances. Id. (citing People v. Givens, 237 Ill. 2d 311, 335 (2010)). Possession is an issue of

fact, and “we will not disturb the trier of fact’s findings on these questions unless the evidence is

so unbelievable or improbable that it creates a reasonable doubt as to the defendant’s guilt.” People

v. Miller, 2018 IL App (1st) 152967, ¶ 9.

¶ 66 Here, the gun was found in the car’s locked glove compartment. Defendant owned the car

and was driving it when stopped by the police. See People v. Bogan, 2017 IL App (3d) 150156,

¶ 32 (stating that proof of ownership of a vehicle is not sufficient by itself to demonstrate control

but it is highly probative of control). There was no evidence that any other person owned the car

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or shared the car with defendant. The key to the glove compartment was in the ignition (or on the

key ring that held the ignition key) at the time of the stop. There was no evidence of another key

that would open the glove compartment or whether the passenger had access to the key. Based on

this evidence, we find that a rational trier of fact could have found that defendant had immediate

and exclusive control over the glove compartment where the gun was found. See People v.

Spencer, 2012 IL App (1st) 102094, ¶ 17 (“The defendant’s control over the location where the

weapons are found gives rise to an inference that he possessed the weapons.”).

¶ 67 We also find that a rational trier of fact could have found that defendant had knowledge of

the gun’s presence in her car. As stated previously, where control has been established, as it has

here, knowledge may be inferred based on the surrounding facts and circumstances. See Bogan,

2017 IL App (3d) 150156, ¶ 45. We agree with defendant’s assertion that a person’s status as

owner and driver of the car is not dispositive as to knowledge. However, in the circumstances

before us, that status weighs heavily in favor of finding that defendant had knowledge of the gun.

Considering there was no evidence presented otherwise to explain its presence in defendant’s

locked glove compartment, it would be reasonable to infer that defendant had knowledge of the

gun. See People v. Bush, 214 Ill. 2d 318, 326 (2005) (this court “must allow all reasonable

inferences from the record in favor of the prosecution”).

¶ 68 Defendant suggests that the passenger also could have had a key to the glove compartment,

which effectively negates a finding of constructive possession. We note that “the mandate to

consider all the evidence on review does not necessitate a point-by-point discussion of every piece

of evidence as well as every possible inference that could be drawn therefrom.” People v. Wheeler,

226 Ill. 2d 92, 117 (2007). Nonetheless, we disagree with defendant’s contention. First, “[a]

reviewing court has neither the duty nor the privilege to substitute its judgment for that of the trier

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of fact” (People v. Abdullah, 220 Ill. App. 3d 687, 693 (1991)), and this point was argued and

rejected at the bench trial. Further, the trier of fact, in this case the trial court, “is not required to

disregard inferences that flow normally from the evidence before it” and need not raise every

possible explanation consistent with innocence to the level of reasonable doubt. People v. Jackson,

2020 IL 124112, ¶ 70. A normal inference that flows from evidence that defendant owned the car

and the key to the locked glove compartment was in the ignition is that defendant had knowledge

and control over what was in her glove compartment. See Bogan, 2017 IL App (3d) 150156, ¶ 36

(“Because such an inference is reasonable, it is allowed, and this court must defer to the trier of

fact.”). In contrast, we cannot say that it would be typical to infer that the passenger, of whom

there was no evidence of a relationship to defendant, may also have had his or her own key to the

glove compartment. As such, this argument fails.

¶ 69 On this record, viewing the evidence in the light most favorable to the State, a rational trier

of fact could have found beyond a reasonable doubt that defendant had constructive possession of

the gun.

¶ 70 We are also not persuaded by the cases to which defendant cites for support of her argument

that the State did not present sufficient evidence on the issue of constructive possession. In People

v. McIntyre, 2011 IL App (2d) 100889, ¶ 4, the police were called to the scene of a shooting that

involved the SUV which the defendant was driving. En route, the officers identified the SUV and

pulled it over. Id. The defendant and the passenger were ordered out of the car, and the officer saw

one or two inches of a gun sticking out from underneath the passenger seat. The passenger admitted

at trial that he shoved the gun under the seat. Id. ¶ 5. There was also testimony from a witness that

the passenger was the individual who pulled out a gun and fired it. Id. ¶ 3. Following a jury trial,

the defendant was found guilty of unlawful possession of a weapon by a felon and possession of a

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firearm without a FOID card. Id. ¶ 9. On appeal, this court reversed and held that the evidence did

not establish that the defendant had control over the weapon where the gun was found in an

opening between the base of the front passenger seat and the leather portion of the seat, on the side

closest to the passenger side door. Id. ¶ 18.

¶ 71 We find the facts in McIntyre clearly distinguishable from those in the case before us. In

McIntyre, there was considerable testimony presented at trial that the passenger was wielding the

gun shortly before the traffic stop was conducted and the passenger admitted that he placed the

gun under his seat. Id. ¶¶ 3-7. No such testimony regarding the passenger in this case was

presented. Defendant here, as the sole owner and driver of the car, cannot transfer possession of

the gun found in her locked glove compartment onto her passenger without any evidence to support

such a conclusion. Another distinction relates to the location of the gun. In McIntyre, the gun was

found easily accessible to the passenger under the passenger seat, whereas, here, the gun was in a

locked glove compartment, and there was no evidence that the passenger had a key to it. As such,

we find McIntyre inapposite.

¶ 72 Defendant also cites to People v. Wise, 2021 IL 125392, for support. There, police officers

conducted a traffic stop on a speeding minivan driven by the defendant. Id. ¶ 3. There were two

passengers in the van: one in the front passenger seat and one in the farthest rear passenger seat.

Id. After police detected the odor of burnt cannabis, a search of the vehicle was conducted. Id. ¶ 4.

An officer found a firearm and two rounds of ammunition “in the rear passenger compartment [in]

kind of like [a] little cupholder armrest, inside a glove.” (Internal quotation marks omitted.) Id.

The officer testified that the defendant stated that his brother owned the van, he knew the gun was

in the van, and the gun belonged to a friend of his who had also borrowed the van previously. Id.

¶ 6. An individual testified at trial for the defense that he owned the gun, he placed it in the glove

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away from the driver’s seat because he did not have a concealed carry license, and he left it there

for several weeks. Id. ¶ 9. One of the passengers testified that he did not know of the gun’s presence

in the van and he heard the defendant state to the police that he did not know about the gun’s

presence. Id. ¶ 10. The defendant also testified that he did not know the gun was in the van and he

never touched it. Id. ¶ 11. The trial court found the defendant guilty of unlawful possession of a

weapon by a felon. Id. ¶ 12.

¶ 73 On appeal, this court concluded that the State failed to prove defendant guilty beyond a

reasonable doubt of unlawful possession of a weapon by a felon. Id. ¶ 18. The supreme court

affirmed this court’s judgment vacating the defendant’s conviction. Id. ¶ 41. In concluding that the

State did not prove constructive possession, the court noted that, although the defendant knew the

weapon was in the van, there was no evidence that the defendant owned the van, the weapon was

found closest to the passenger in the third row of the van out of the defendant’s reach, the officers

did not see the defendant touch the weapon, and the defendant’s fingerprints were not found on it.

Id. ¶ 34.

¶ 74 Again, we find these facts distinguishable from those before this court. In particular, there

is quite a distinction between a gun in the glove compartment within reach of the driver’s seat and

a gun in a cupholder in the third row of a van, 5 to 10 feet away from the driver’s seat. See id. The

proximity of the gun to defendant in this case supports the finding of constructive possession,

where it supported the opposite conclusion in Wise. Moreover, there was testimony in Wise that

the defendant did not know the gun was in the van and the defendant was not the owner of the van.

For these reasons, we do not find Wise analogous.

¶ 75 Finally, the State asserts that defendant’s argument is “ultimately foreclosed by People v.

Jones, 2023 IL 127810.” Although we would not go so far as to say her argument is conclusively

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foreclosed, we nonetheless find Jones instructive here. In Jones, the defendant was arrested

following a traffic stop, during which the police officer searched her car and found two rounds of

.40-caliber ammunition in the glove compartment. Id. ¶ 4. When the officer informed defendant

that she was going to be arrested for possession of ammunition, she responded that it belonged to

her husband. Id. The defendant testified at trial that, although she did not know that the ammunition

was in the car, she knew the ammunition to be her husband’s because they shared the car and he

owned guns and had a FOID card. Id. ¶ 6. Her husband also testified that the ammunition was his

and he had a FOID card. Id. ¶ 7. Further, he stated that he would drive the car, which was registered

in the defendant’s name only, to and from East St. Louis, where his children lived, and when he

did so, he would store his gun in a case in the trunk and the clip, or the ammunition, in the glove

compartment. Id. Ultimately, the jury found defendant guilty of unlawful possession of

ammunition by a felon. Id. ¶ 14. On appeal, the Fourth District of this court affirmed the

conviction. Id. ¶ 16.

¶ 76 Our supreme court upheld the Fourth District’s ruling, finding that the evidence was

sufficient to prove the defendant guilty beyond a reasonable doubt. Id. ¶ 32. The court first

concluded that the evidence supported a finding that the defendant had control over the premises

where the ammunition was located because the defendant was the only registered owner of the car

and the ammunition was found in the glove box when the defendant was stopped while driving.

Id. ¶ 33. In addressing the defendant’s knowledge of the ammunition, the court noted that “where

possession has been shown, an inference of culpable knowledge can be drawn from the

surrounding facts and circumstances.” Id. ¶ 34. The evidence showed that the defendant informed

the police that the ammunition belonged to her husband, and her husband testified that the

defendant knew that he transported his gun in her car. Id. ¶ 35. The court also stated that, although

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the defendant testified that she did not know the ammunition was there, the trier of fact did not

have to accept that testimony as true. Id. ¶ 37. As such, the court concluded that it was reasonable

for the trier of fact to infer that the defendant knowingly possessed the ammunition. Id.

¶ 77 We acknowledge that this case differs slightly from Jones in that, in Jones, there was no

passenger in the car and the glove compartment was not locked. However, as the defendant here

likewise owned the car and the gun was found in the glove compartment, an inference of

knowledge can be made based on the surrounding facts and circumstances. Indeed, the fact that

the glove compartment was locked in this case is arguably stronger evidence of knowledge and

possession where there was no evidence that anyone other than defendant had the key to the glove

compartment. In contrast, in Jones, there was affirmative evidence that a person, other than the

driver and owner of the car, had access to the glove compartment and regularly stored ammunition

there. As such, we find Jones supportive of our conclusion that defendant had both knowledge of

the gun and control of the location where it was found.

¶ 78 Accordingly, we conclude that there was sufficient evidence to prove defendant guilty

beyond a reasonable doubt of the offense of AUUW.

¶ 79 III. CONCLUSION

¶ 80 For the reasons stated, we affirm the judgment of the circuit court.

¶ 81 Affirmed.

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People v. Mallett, 2023 IL App (1st) 220920

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR-9026; the Hon. Stanley J. Sacks, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian Levitsky, and Whitney Bond, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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