People v. Flora , 2023 IL App (4th) 220926-U ( 2023 )

NOTICE 2023 IL App (4th) 220926-U FILED
This Order was filed under May 9, 2023
Supreme Court Rule 23 and is NO. 4-22-0926 Carla Bender
not precedent except in the
4th District Appellate
limited circumstances allowed
under Rule 23(e)(1). 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. ) Hancock County
SCOT A. FLORA, ) No. 22CF41
Defendant-Appellee. )
) Honorable
) Rodney G. Clark,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: The circuit court erred by granting the motion to suppress evidence discovered
during a vehicle search after a canine alert.
¶2 In April 2022, the State charged defendant, Scot A. Flora, with unlawful
possession of methamphetamine (720 ILCS 646/60(b)(1) (West 2020)). Defendant filed a
motion to suppress evidence obtained during an allegedly illegal search of the vehicle in which
he was a passenger. After an August 2022 hearing, the Hancock County circuit court granted
defendant’s motion and suppressed the State’s evidence. The State then filed a certificate of
impairment and an appeal under Illinois Supreme Court Rule 604(a) (eff. July 1, 2017). We
reverse and remand for further proceedings.
¶3 I. BACKGROUND
¶4 The unlawful possession of methamphetamine charge stems from defendant’s
alleged actions on April 12 to April 13, 2022. Following a traffic stop, police discovered a
substance containing methamphetamine on a glass tube stored in a plastic container, which was
located in the trunk of the vehicle in which defendant was a passenger. In his motion to
suppress, defendant asserted the search of the vehicle was based on a canine alert. The canine
had been trained to alert on the odor of cannabis. Defendant asserted cannabis was a legal
substance and its odor alone did not indicate unlawful activity. Accordingly, he argued a search
based on an alert by a canine trained to detect a legal substance does not provide probable cause.
The State filed a response, asserting defendant’s motion should be denied because the
legalization of small amounts of cannabis did not change the existing case law finding the odor
of cannabis alone sufficient to establish probable cause to search a vehicle. Moreover, the State
argued the fact the canine could detect cannabis is irrelevant in this case, where the canine was
trained to detect methamphetamine and methamphetamine was found in the vehicle. The State
also argued transporting cannabis should not be treated the same as transporting alcohol. Last,
the State noted cannabis remains illegal at the federal level.
¶5 On August 16, 2022, the circuit court held a hearing on defendant’s motion to
suppress. The parties stipulated to the facts at the hearing, and those facts relevant to the issue
on appeal follow.
¶6 Deputy Rhea Flambeau and Deputy Willo Quivey were on duty in the same patrol
car on April 12, 2022, at approximately 11:57 p.m., when they stopped a vehicle for failing to
utilize a turn signal in making a lane change. The parties agreed the officers had probable cause
to initiate a traffic stop based on a violation of section 11-804 of the Illinois Vehicle Code (625
ILCS 5/11-804 (West 2020)). The driver of the vehicle was Teresa Snodgrass, and defendant
was in the passenger seat. Deputy Flambeau had knowledge of both Snodgrass and defendant
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being associated with the possession and delivery of methamphetamine. While Deputy Quivey
ran both occupants’ identification through dispatch, Deputy Flambeau deployed his canine to
conduct “a free-air sniff on the vehicle.” Deputy Flambeau and his canine had completed
extensive training in drug detection and were certified. The canine was trained to alert to the
presence of any odor of cannabis, cocaine, methamphetamine, or heroin. A canine alert may also
indicate items recently contaminated with or associated with the odor of one or more of the
aforementioned narcotics. However, the canine was not trained to communicate which odor of
drug he alerted to. Deputy Flambeau’s canine alerted at the vehicle’s passenger door. The
parties agreed the canine alert did not unlawfully extend the duration of the traffic stop. After
the canine alert, the deputies removed Snodgrass and defendant from the vehicle and searched
their persons. They found no illegal items on Snodgrass and defendant.
¶7 The deputies then searched the vehicle. Both Snodgrass and defendant were calm
while the vehicle was being searched. However, when Deputy Flambeau got to the trunk of the
vehicle, defendant began displaying nervous behavior. As Deputy Flambeau opened the trunk,
defendant came up to him and said there was nothing inside the car. The deputy asked defendant
to return to the squad car, and defendant volunteered a clean glass bong belonging to him was in
the trunk. In the trunk, Deputy Flambeau located a plastic box containing several glass pipes,
one of which had black burn marks and residue inside it. Based on his training, background, and
experience, Deputy Flambeau knew the pipe was commonly associated with the consumption of
methamphetamine. When Deputy Flambeau brought the plastic box to the squad car, defendant
spontaneously stated the box belonged to him. Deputy Flambeau field-tested the pipe, which
tested positive for methamphetamine.
¶8 In addition to the stipulated facts, the State presented the dash-camera video and
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the in-car video of the stop and four photographs.
¶9 On September 29, 2022, the circuit court filed a written opinion concluding the
deputies lacked probable cause to search the vehicle. In reaching that conclusion, the court
found instructive the decision of the Appellate Court, Third District in People v. Stribling, 2022
IL App (3d) 210098. It concluded that, since the dog alert could have been for a legal substance,
it was “just not enough for a ‘reasonable’ officer to conclude considering all the surrounding
circumstances that contraband or evidence of a crime was present.” On October 6, 2022, the
court filed a written order granting defendant’s motion to suppress. On October 14, 2022, the
State filed a certificate of impairment and a notice of appeal from the circuit court’s order
granting defendant’s motion to suppress. The notice of appeal was timely filed and in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Thus, we have
jurisdiction under Illinois Supreme Court Rule 604(a) (eff. July 1, 2017).
¶ 10 II. ANALYSIS
¶ 11 The State appeals the circuit court’s order granting defendant’s motion to
suppress evidence discovered during the vehicle search after the canine alert. In reviewing a
circuit court’s decision on a motion to suppress evidence, this court applies the two-part standard
of review announced by the United States Supreme Court in Ornelas v. United States, 517 U.S.
690, 699 (1996). People v. Aljohani, 2022 IL 127037, ¶ 28. Under that standard, this court
reviews the circuit court’s findings of historical fact for clear error and may reject them only if
they are against the manifest weight of the evidence, but we review de novo the circuit court’s
ultimate ruling as to whether suppression is warranted. Aljohani, 2022 IL 127037, ¶ 28. With a
motion to suppress, the defendant bears the burden of establishing a prima facie case the
evidence at issue was obtained by an illegal search. People v. Bass, 2021 IL 125434, ¶ 21, 182
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N.E.3d 714. Once the defendant makes out a prima facie case the search was unreasonable, the
burden shifts to the State to present evidence to rebut it. Bass, 2021 IL 125434, ¶ 21.
¶ 12 Both the United States and Illinois Constitutions provide citizens the right to be
free from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I,
§ 6. “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. One of the recognized exceptions to the aforementioned rule is for searches of
vehicles, given the impracticability of securing a warrant before the vehicle escapes the
jurisdiction in which the warrant must be sought. Hill, 2020 IL 124595, ¶ 21. While a warrant is
not required for a vehicle search, officers must still have probable cause to search the vehicle.
Hill, 2020 IL 124595, ¶ 22.
¶ 13 An officer has probable cause when the totality of the facts and circumstances
known to the officer at the time of the search would justify a reasonable person in believing the
vehicle contains contraband or evidence of criminal activity. Hill, 2020 IL 124595, ¶ 23. “In
determining whether probable cause exists, officers may rely on their law-enforcement training
and experience to make inferences that might evade an untrained civilian.” Hill, 2020 IL
124595, ¶ 23. As such, a reviewing court determines probable cause through the standpoint of
an objectively reasonable officer. Hill, 2020 IL 124595, ¶ 23. Moreover, probable cause deals
with probabilities and not certainties. Hill, 2020 IL 124595, ¶ 24. It is a flexible, commonsense
standard that does not require a showing a particular belief is correct or more likely true than
false. Hill, 2020 IL 124595, ¶ 24. Thus, to establish probable cause, an officer need not rule out
any innocent explanations for suspicious facts. Hill, 2020 IL 124595, ¶ 24. The standard only
requires the facts available to the officer, including the plausibility of an innocent explanation,
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would lead a reasonable person to believe a reasonable probability exists certain items might be
contraband or evidence of a crime. Hill, 2020 IL 124595, ¶ 24. With a canine alert, the inquiry
is whether all the facts surrounding the canine’s alert, viewed through the lens of common sense,
would make a reasonably prudent person think a search would reveal contraband or evidence of
a crime. Florida v. Harris, 568 U.S. 237, 248 (2013).
¶ 14 Here, both the driver of the searched vehicle and defendant, the passenger, were
known to Deputy Flambeau as having a history of methamphetamine possession and delivery.
We find that knowledge, along with the canine alert by a trained and certified canine, is
sufficient for a reasonably prudent person to think a search would reveal evidence of
methamphetamine, which is indisputably contraband.
¶ 15 Even if only the canine alert was the basis for probable cause, this court recently
found a positive alert by a canine certified and trained to detect five narcotic substances,
including cannabis, was sufficient to establish probable cause. People v. Mallery, 2023 IL App
(4th) 220528, ¶ 49. This court reached that conclusion despite the recent changes in the law
regarding the legalization of small amounts of cannabis. Mallery, 2023 IL App (4th) 220528,
¶ 49. We noted, “ ‘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.’ ” Mallery, 2023 IL App (4th)
220528, ¶ 49 (quoting People v. Molina, 2022 IL App (4th) 220152, ¶ 43, appeal allowed, No.
129237). Like the canine in Mallery, the canine in this case was trained and certified in
detecting multiple narcotics, including cannabis, and gave a positive alert on the passenger door.
Additionally, this court has disagreed with the Third District’s holding and reasoning in
Stribling, which was noted in the circuit court’s decision in this case. Molina, 2022 IL App (4th)
220152, ¶ 55. Thus, we find probable cause existed based on the positive canine alert alone.
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¶ 16 Defendant urges us to affirm the circuit court’s decision on the basis the canine
sniff itself was an illegal search because the canine was trained to alert on cannabis, a
noncontraband item, and the police officers did not have probable cause to search the box in the
trunk of the car. He recognizes he did not raise these issues in the circuit court but contends the
circuit court’s judgment may be affirmed on any ground of record. See People v. Johnson, 208
Ill. 2d 118, 129, 803 N.E.2d 442, 449 (2003). Defendant further notes such affirmation is
appropriate where the factual basis for the defendant’s claim was fully developed in the circuit
court and the issue was then fully briefed and argued in the appellate court. Johnson, 208 Ill. 2d
at 134-35, 803 N.E.2d at 452. However, defendant fails to fully brief and develop his arguments.
As to his first basis for affirmation, defendant’s argument is very brief (less than a page) and
lacks citation to authority for the assertion the canine sniff was a search of the vehicle because
cannabis is not contraband. Regarding the second basis, the State contends the record was not
developed to address the argument and notes only stipulated facts as to the issues raised in the
motion to suppress were presented to the circuit court. We note defendant’s argument is again
brief. Moreover, with regard to his suggestion probable cause to search a vehicle does not
extend to the vehicle’s trunk, defendant cites only cases involving the search incident to arrest
exception to the warrant requirement and not the automobile exception. See Arizona v. Gant,
556 U.S. 332, 335 (2009); People v. Cregan, 2014 IL 113600, ¶ 1, 10 N.E.3d 1196; People v.
Frias, 393 Ill. App. 3d 331, 336, 912 N.E.2d 1236, 1240 (2009). He also does not cite cases
addressing the scope of a search based on a canine alert. Additionally, defendant fails to discuss
his actions and demeanor as the police officers got ready to search the vehicle’s trunk. Thus, we
disagree with defendant he fully briefed the issues and decline to affirm the circuit court on the
bases he raises for the first time in his appellee brief. We emphasize this court is not a repository
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into which the parties may dump the burden of argument and research. See v. Illinois Gaming
Board, 2020 IL App (1st) 192200, ¶ 24, 170 N.E.3d 195.
¶ 17 Accordingly, we find the deputies in this case did have probable cause to search
the vehicle in which defendant was a passenger and the circuit court erred by granting
defendant’s motion to suppress.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we reverse the Hancock County circuit court’s judgment
and remand the cause for further proceedings.
¶ 20 Reversed and remanded.
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