Preview Mode Links will not work in preview mode

Criminal Nuggets

Feb 12, 2020

People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08)

Officer sees passenger riding low in the seat and he thinks it may be a guy wanted on warrant, turns out it wasn’t him.


Defendant was the driver of the car. The State charged him with unlawful possession of a substance containing less than 15 grams of cocaine.

Riding Low

In May 2017, around 10 a.m., Officer Robert Baker was parked in his squad car on west Route 36 near the 2200 block in Decatur when defendant’s Chevrolet Monte Carlo quickly decelerated to well below the speed limit, causing traffic to back up.

As the car drove by the officer, he noticed the passenger was reclined in the car with his head mostly obstructed by the side panel, where the seatbelt is attached, referred to by the officer as the “B panel.”

The officer then drove from his parked location in order to get a better look at the passenger. It was his experience that people wanted on warrants or concerned about rival gang members frequently ride in the same manner he was observing in order to remain concealed.

“Ain’t He Wanted On A Warrant?”

When he pulled up next to the vehicle, he was able to see the hair, face, skin tone, and apparent build of the passenger and believed him to be Duane Lee, a person he knew to be wanted on a traffic warrant.

He was able to see the entire left side of the passenger’s head and neck when he pulled up alongside defendant’s car on the driver’s side. He believed the person to be Lee based on the hair, face, skin tone, and apparent build of the person he observed in defendant’s vehicle.

Officer Baker was familiar with Lee from previous observations of him on the street throughout his time as a police officer, as well as his practice of keeping current on persons wanted on warrants. He explained he did this by regularly reviewing the department’s records of wanted people in Decatur and then viewing the most recent photos the Decatur Police Department had on those individuals.

Gonna Stop This Car

While waiting for a backup vehicle to arrive on the scene, the officer followed the vehicle.

He traveled approximately 30 blocks from when he first saw the car until it was ultimately stopped. It took some time to catch up to the car from his parked position, and believing the passenger to be wanted on a warrant he wanted another police vehicle in the vicinity before confronting the man.

In addition, he noted that once he activated his lights to effectuate the stop, it took several blocks for the car to actually come to a stop. In his experience, when this occurs during a traffic stop, the occupants of the vehicle may be concealing or attempting to conceal or destroy contraband. In such instances, he said, one of the most serious concerns is whether an occupant is seeking to retrieve a weapon.

Car Is Stopped

Once a backup squad car was near, Officer Baker initiated a stop of defendant’s vehicle. Approaching from the passenger side, he asked the passenger to identify himself and step out of the vehicle.

Immediately upon making contact with the passenger, smelled the odor of “raw” cannabis.

“What I Do Wrong?”

Upon being asked by defendant, the driver, what defendant did wrong, on the in-car video stipulated into evidence, Officer Baker said, “I thought [the passenger] was wanted, is why I stopped you, that’s why I stopped you.”

Directing his attention­ to the passenger, Officer Baker stated, “[A]ctually, to tell you the truth, I thought you were somebody else.” Within a matter of approximately 15 seconds, Officer Baker told the occupants he could smell raw cannabis in the car and said he observed a “bud” in the back seat.

Defendant Out The Car

After another police car arrived, defendant was asked to exit the vehicle and, after being patted down, to sit on the curb next to the car.

A search of the vehicle produced an unspecified amount of cannabis, described as being “much less than a pound or an ounce.” In addition, the officers found “a small rock that tested positive for crack cocaine” under the driver’s seat. Again, the specific amount was not identified.

Defendant was arrested while the passenger, once identified as someone other than the individual wanted on a warrant, was permitted to walk away.


Defendant filed a motion to suppress evidence of the cocaine found in the car, arguing the officer did not have reasonable suspicion for the stop and, alternatively, probable cause to search defendant’s car.

Trial judge grants the motion, in part, because the officer had no other corroborating evidence of identification.

Fourth Amendment

“The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.’ ” Terry v. Ohio, 392 U.S. 1, 8 (1968). The fourth amendment of the United States Constitution focuses on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”

“The law is well settled that stopping a vehicle and detaining its occupants constitute a ‘seizure’ within the meaning of the fourth amendment.” People v. Timmsen, 2016 IL 118181, ¶ 9, 50 N.E.3d 1092.

Investigative Stop

“[A] police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9. The standard for a stop is “reasonable, articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “Although ‘reasonable, articulable suspicion’ is a less demanding standard than probable cause, an officer’s suspicion must amount to more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Timmsen, 2016 IL 118181, ¶ 9 (quoting Terry, 392 U.S. at 27).

Although clearly “seizures,” traffic stops are more like Terry investigative detentions than formal arrests and therefore may be reasonable if initially justified and reasonably related in scope to the circumstances that justified the interference in the first place.

Reasonableness Is The Standard

“[R]easonable suspicion determinations must be made on commonsense judgments and inferences about human behavior.” Timmsen, 2016 IL 118181, ¶ 14. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002).

In determining if there was reasonable suspicion for the stop, there is no bright-line rule, but instead the court is to consider the “totality of the circumstances of each case.” Timmsen, 2016 IL 118181, ¶ 18.

No Unlawful Behavior Required

The most significant distinction in this case is, however, that there is no need for the officer under these circumstances to be required to analyze and justify the stop based on any suspicion of unlawful behavior.

We do not have to surmise whether the actions of the vehicle or occupants were objectively suspicious. In fact, the defendant was apparently doing nothing illegal, other than perhaps rapidly decelerating once the marked police car was observed. This is because the basis for the stop was the result of an objective fact completely removed from the activity; i.e., the outstanding arrest warrant for a person whose appearance was found by the trial court to be “actually quite similar” to the passenger.

The Case Law: Safunwa

In People v. Safunwa, 299 Ill. App. 3d 707, 710, 701 N.E.2d 1202, 1204 (1998), the Second District found the trial court made a specific finding, upon close inspection, that the defendant did not resemble the photograph of the fugitive police thought was in the vehicle they stopped. As a result, they held, absent a finding the conclusion was erroneous, they were bound by it.

We have the identical situation in reverse.

This Case

Here it must be noted the trial court had determined the appearance of the passenger and suspect wanted on a warrant were “quite similar.” We should likewise defer to the trial court.

The behavior observed by Officer Baker both before and after activating his lights serves only to buttress the reasonableness of his suspicion. Had the passenger been Duane Lee, that fact alone would have justified the stop.

Therefore, the officer reasonably believed the passenger to be Duane Lee.

How Certain Does He Have To Be?

How certain does he have to be to execute a brief traffic stop?

In Safunwa, in spite of the trial court’s finding that upon close inspection the defendant did not look like the person wanted on the warrant, the appellate court found the officers reasonably believed defendant was the person wanted on a warrant based upon the similarity in height, weight, age, and similarity of mustache and hair style. 

The court found the officers were justified in making the stop and requesting identification. “Sufficient probability, rather than certainty, is the touchstone of reasonableness under the fourth amendment.” Safunwa, 299 Ill. App. 3d at 711).

The Case Law: Cummings

In Cummings, 2016 IL 115769, a traffic stop based on an outstanding warrant for the female owner of the vehicle, although initially valid, was rendered in violation of the fourth amendment once the officer approached the van and observed the driver to be a man. See Episode 131.

In explaining the rationale for its ruling, the Supreme Court noted that although before the stop the officer had determined the registration he initially believed to be expired was, in fact, valid, since he learned of the outstanding arrest warrant for the female owner and could not determine whether the driver was a female, the officer had a “reasonable suspicion” that the driver was subject to seizure.

In that case, the only factor making the initial stop valid was the unknown sex of the driver. No other traffic violation had been committed. After remand, the court still­ permitted the ordinary inquiries of checking for license and registration in spite of the fact that his reasonable suspicions disappeared as soon as he saw the driver was a male.

This Case

Even if this officer eventually, determined the passenger was not the man wanted on a warrant. The officer was still justified in continuing to engage with the car passengerss to determing basic information.

The Case Law: Hill

Hill, 401 U.S. 797, was a clear case of mistaken identity.

Police had probable cause to arrest person A, they reasonably mistook person B for person A, and they arrested person B. The Supreme Court concluded that, so long as the police had a “reasonable, good-faith belief” the person arrested was the one wanted on the warrant, the arrest was justified. Hill, 401 U.S. at 802.

This Case

Here, we are not talking about a full-blown arrest but merely the “brief detention” inherent in an investigatory traffic stop to check the identification of someone in the vehicle. “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 536 (2014).

“The limit,” they said, “is that ‘the mistakes must be those of reasonable men.’” Heien, 574 U.S. at ___, 135 S. Ct. at 536. (recall that Heien expanded the doctrine of mistake of fact into what it called reasonable mistakes of law).

The mistaken fact in this case was the actual identity of the passenger. Even the trial court agreed the passenger looked very similar to the person wanted on a warrant and concluded the officer was acting in good faith at the time of the stop.

Here the court is not called upon to assess the basis for the officer’s suspicions regarding a person’s behavior. It was simply a matter of “this looks like the guy I know to be wanted on a warrant.”

More Analysis

The trial court found the officer’s belief to be in good faith. When coupled with the court’s own recognition that the two­ individuals did in fact look very similar, we cannot conclude the stop was unreasonable. When viewing the photographs included in the record, the general physical description and the appearance of the two are similar. Looking closely at them, with sufficient time to analyze each photo, is it possible to say they look different? Of course.

But those were not the circumstances facing Officer Baker, and the trial court recognized that. Do we find the trial court’s conclusion the two looked very similar was unreasonable under the circumstances? No.

Where the trial court erred was in finding the officer either needed to be certain in his identification or be able to point to other corroborating evidence. This is not a situation involving the need for probable cause.

Activity Not In Question

Unlike those situations where the court is called upon to evaluate the reasonableness of an officer’s suspicion of behavior or actions upon which he relied to justify the stop, i.e., the reasonable, articulable suspicion of criminal activity, here the existence or nonexistence of suspicious criminal activity is irrelevant.

It is the status of the suspect at issue, not his or her actions.

The only question before the court in such a case is whether the officer was reasonable in his belief that the person he saw was the one wanted on the warrant. The Supreme Court has said “certainty” is not required, thereby addressing the first basis upon which the trial court granted the suppression motion.

As to the second basis, the need for some form of independent corroborative evidence, we also find no case requiring some sort of independent corroboration in order to effectuate a brief traffic stop in order to ascertain the identity of an occupant whom officers reasonably suspect to be wanted on a warrant.

This Was Not An Arrest

It is true that where courts are reviewing whether officers had probable cause to arrest someone suspected as wanted on a warrant, more may be required since we are moving from a brief investigative detention to a full-blown arrest. In People v. Gordon, 311 Ill. App. 3d 240, 246-48, 723 N.E.2d 1249, 1253-55 (2000), the Second District discussed Hill, 401 U.S. 797, within the context of mistaken arrests. It noted how the Supreme Court in Hill found that, as long as police had probable cause to arrest one party, a reasonable mistake as to the identity of a second party actually arrested would still constitute a valid arrest.

 “‘[T]he seizure of an individual other than the one against whom the warrant is outstanding is valid if the arresting officer (1) acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee. Should doubt as to the correct identity of the subject of [the] warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual.’”

Gordon, 311 Ill. App. 3d at 249 (quoting Sanders, 339 A.2d at 379).

Remember All Those ILU Cases

See Episode 572 – People v. Mueller, 2018 IL App (2d) 170863 (December) (Jeep touches he traffic lines 3 times and gets stopped, reasonable?)

In these cases may or may not have committed improper lane use (ILU).

  • People v. Hackett, 2012 IL 111781,  ¶ 9
  • People v. Smith, 172 Ill. 2d 289, 297 (1996)
  • People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and
  • People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

See Also

Although stops may frequently be supported by the classic “probable cause” necessary for arrest, the less exacting standard of “reasonable, articulable suspicion” is also sufficient. A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Must Be Reasonable Mistakes

“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”

Almost 50 years later, the Court was still seeking to define the difference between “reasonable suspicion” and “probable cause.” In Ornelas, 517 U.S. 690, it noted the impossibility of articulating it precisely. “They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).

The Court said it has described “reasonable suspicion simply as ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696. It considered reasonable suspicion a fluid concept to be decided on its own facts and circumstances and found the primary components to be the events leading up to the stop and then the decision whether these historical facts viewed from the standpoint of an objectively reasonable police officer amounted to reasonable suspicion. Ornelas, 517 U.S. at 696.

Nonetheless Corroboration Not Needed

We do not believe there is a specific legal requirement articulated by any published Illinois case requiring an officer under these circumstances to be able to point to some “corroborative facts” other than his reasonable suspicion.

He Was Certain Enough

(1) In the case before us, the trial court had the additional facts of the unusual driving behavior upon seeing the marked squad car, along with the seating of the passenger to consider. These were relevant to the officer and buttressed his suspicion the passenger was, in fact, the wanted person he quite similarly resembled.

(2) In addition, the trial court had available to it the subsequent actions of the officer before effectuating the stop. Officer Baker was sufficiently certain the passenger was Lee that he wanted another police officer present for backup and followed the vehicle for a full 30 blocks until one arrived. Being familiar with Lee, Officer Baker knew the need for more than one officer necessitated that he call to have someone leave their normal patrol area to assist him. Had he been less certain, it is unlikely he would have bothered.

(3) Further, when viewing the photographs, the trial court concluded they were very similar.

Plus There Was That Odor…

Defendant argues that smelling cannabis cannot create probable cause because Illinois decriminalized marijuana possession under 10 grams.

We disagree.

Marijuana possession remains unlawful.

As the First District stated in In re O.S., 2018 IL App (1st) 171765, ¶ 29, 112 N.E.3d 621, “decriminalization is not synonymous with legalization.” In People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985), our supreme court said an officer has probable cause to conduct a search of a vehicle if he smells the odor of a controlled substance coming from the vehicle and it is shown he has the necessary training and experience to detect controlled substances.

This law remains unchanged.

Fresh v. Burnt

In People v. Smith, 2012 IL App (2d) 120307, 982 N.E.2d 234, the Second District addressed the issue of “fresh” versus “burnt” cannabis and found no basis for distinguishing the two when determining whether the smell may form the basis for probable cause for a police officer’s subsequent search. In Smith, the officer testified, as he approached the driver’s side of the vehicle, he smelled “a slight odor of cannabis” coming from inside the vehicle, which he said smelled “fresh.”

The court considered the language of Stout, quoted above, and found, as do we, there was no modifier preceding cannabis and there was no reasonable basis to limit its holding only to “burnt” cannabis. Smith, 2012 IL App (2d) 120307, ¶ 16. The Smith court pointed to a long list of cases outside Illinois involving raw versus burnt cannabis in which “the smell of marijuana [is] alone sufficient to furnish probable cause to search a vehicle without a warrant.” (Internal quotation marks omitted.) Smith, 2012 IL App (2d) 120307, ¶ 19. 

See Also

Cannabis Consistent With Crime

The State noted the court in O.S. found that even in Colorado, where possession of an ounce of cannabis has been legalized, not merely decriminalized, the state supreme court still considers the odor of marijuana to be relevant to a probable cause determination and can support an inference that a crime is ongoing, even though possession of an ounce or less is legal.

We find their reasoning just as applicable here because a “substantial number of other marijuana-related activities remain unlawful.” People v. Zuniga, 2016 CO 52, ¶ 23, 372 P.3d 1052. It was for that reason they concluded “the odor of marijuana is still suggestive of criminal activity.” Zuniga, 2016 CO 52, ¶ 23.

True You Can’t Determine Quantity From The Smell

Defendant provides no rationale for requiring police officers to somehow ascertain the quantity of marijuana before the search in order to determine whether probable cause exists. In fact, such a requirement would be unworkable and contrary to the current body of law.

It would lead to an absurd result where police officers, after performing a traffic stop, smelled the odor of cannabis emanating from the vehicle but could not investigate it further unless they knew the amount involved. Here, as the trial court concluded, the search was clearly justified upon establishing probable cause for the search.

Little Bonus

Once Officer Baker smelled the odor of cannabis, probable cause for the search existed.

The fact that he almost immediately observed cannabis in plain view was merely an added bonus.


Having concluded the suspicions of the officer were reasonable under the circumstances, the trial court’s decision to grant the motion to suppress due to a lack of certainty as to the identity of the passenger or lack of other corroborative facts was erroneous in that it placed an additional burden on the officer seeking to effectuate such a stop for which we can find no support in the law.

We reverse and remand for further proceedings consistent with this opinion.