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December 24, 2001

The State appeals from the December 5, 2000, ruling ofthe Livingston County circuit court, which granted defendantMichael Hansen's motion to quash arrest and suppress evidence. We reverse and remand for further proceedings.

I. BACKGROUND

On November 5, 1999, the Illinois State Police stoppedan Oldsmobile for speeding. There were four males and a largedog in the Oldsmobile. The driver and defendant Hansen were inthe front and the two other males were in the backseat with thelarge dog in between them. Two troopers were in the police car. Officer Hoop, the driver of the police car, was new to the forceand was still in his probationary period. Officer Harris wasriding along to supervise Officer Hoop.

When the Oldsmobile pulled over to the side of theroad, Officer Hoop activated the takedown lights on his patrolcar to illuminate the interior of the Oldsmobile. As the Oldsmobile stopped, Officer Harris noticed the front seat passenger,Hansen (defendant), making furtive movements as though he wereplacing or retrieving something from under his seat. OfficerHarris warned Officer Hoop to be careful because the front seatpassenger had made the furtive movements and may be reaching fora weapon.

As Officer Hoop approached the driver's side window ofthe Oldsmobile, he noticed the strong smell of burning cannabisemanating from the vehicle. Officer Hoop proceeded to ask thedriver for his license and registration. While Officer Hoop wastalking to the driver, Officer Harris approached the passengerside of the Oldsmobile and also smelled the strong odor ofburning cannabis. Hansen rolled his window down, thinking theofficer wanted to talk to him, at which point Officer Harris toldHansen to place his hands on the dashboard. Hansen complied. Officer Harris shined his flashlight into the car onto thefloorboard underneath Hansen and saw a green leafy substance onthe floorboard that the officer believed to be cannabis. OfficerHarris then ordered Hansen to get out of the car.

With Hansen out of the car, Officer Harris searched thefloorboard and under the seat in which Hansen had been sitting. Finding nothing, Officer Harris then ordered Hansen to place hishands on the car and frisked Hansen. During the frisk, OfficerHarris felt something hard in defendant's front right pocketwhich he could not identify. When Hansen would not tell OfficerHarris what was in his pocket, Officer Harris reached intodefendant's pocket and retrieved two glass smoking bowls. Officer Harris reached into defendant's pocket again and retrieved a bag which was later confirmed to contain cannabis.

Officer Harris handcuffed and read Hansen his Mirandarights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.Ct. 1602 (1966)) after he found the smoking bowls and bag ofsuspected cannabis. Both officers searched the car and all ofthe other persons in the car. No controlled substances werefound in the car or on any other persons in the car. The driverand other passengers and the dog were allowed to leave, andHansen was placed in the police car. The suspected cannabis onthe floor of the car was left in the car and not tested and it isunknown what the substance actually was. While being transportedin the police car, Hansen volunteered that he had "smoked threebowls."

Hansen and the other passengers denied anyone smokedcannabis in the Oldsmobile that night and denied that there wasany odor of burnt cannabis in the car. According to testimony,neither Officer Hoop nor Officer Harris put any mention of anodor of burning cannabis in their police reports and did notquestion any of the passengers in the car about the odor untilafter all searches had been conducted.

Hansen was charged with possession of drug paraphernalia, a Class A misdemeanor, and unlawful possession of cannabis,a Class B misdemeanor. 720 ILCS 600/3.5(a)(West 1998); 720 ILCS550/4(b) (West 1998). Hansen filed a motion to quash arrest andsuppress evidence, claiming that Officer Harris did not haveprobable cause to search Hansen's person and therefore thecannabis, smoking bowls, and any statements made after theillegal search were tainted and inadmissible. The trial courtgranted Hansen's motion, finding that Officer Harris did not haveprobable cause to search Hansen's person.

In making its ruling, the trial court walked throughthe various stages of the interaction between Hansen and theIllinois State Police officers, explaining its analysis andconclusions at each step. As a preliminary matter, all partiesconceded that the initial stop of the Oldsmobile for speeding wasproper. The trial court also found that Officer Harris wasallowed to ask Hansen to get out of the car and frisk him forweapons, based on the furtive movements, under Terry v. Ohio, 392U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Officer Harrisexceeded the authority of a Terry frisk, however, when he reachedinto Hansen's pocket. Officer Harris found nothing under Hansen'sseat and never believed the object in Hansen's pocket was aweapon; therefore, he was not allowed to retrieve the objectanyway.

The trial court next considered whether the searchcould be justified as a search incident to arrest. The trialcourt noted that a search incident to arrest can occur prior tothe actual arrest if probable cause to make the arrest existedbefore the search was made. Therefore, the fact that Hansen wasnot handcuffed and given Miranda rights until after the searchwas not dispositive of the issue. The trial court also notedthat the odor of burnt cannabis emanating from the vehicle gaveOfficers Hoop and Harris probable cause to search the Oldsmobile,the driver, and any containers found in the car. The trial courtfound no probable cause to search Hansen's person, however,because passengers have a higher expectation of privacy in theirpersons.

II. ANALYSIS

A trial court's ruling on a motion to suppress can onlybe overturned if it is against the manifest weight of the evidence. People v. Boyd, 298 Ill. App. 3d 1118, 1122-23, 700N.E.2d 444, 447 (1998), appeal denied, 182 Ill. 2d 554, 707N.E.2d 1241 (1999). The trial court's findings of fact will notbe reversed unless they are manifestly erroneous. People v.Gonzalez, 184 Ill. 2d 402, 411, 704 N.E.2d 375, 379 (1998), cert.denied, 528 U.S. 825, 145 L. Ed. 2d 63, 120 S. Ct. 75 (1999). Ifthe trial court's findings of fact are not manifestly erroneous,then our review of matters of law is de novo. Gonzalez, 184Ill. 2d at 412, 704 N.E.2d at 380.

The trial court made a factual determination in favorof the officers' version of events. It found that Officers Hoopand Harris were qualified to determine the odor of burningcannabis and to recognize cannabis leaves and that they did infact smell burning cannabis coming from the Oldsmobile. It isunclear whether the trial court found that the green leafysubstance was cannabis or not, but the trial court did accept astrue Officer Harris' testimony that he believed it to be cannabis. The trial court also believed Hansen told the officers thathe had smoked three bowls prior to being stopped.

Hansen argues on appeal that these findings are suspectbecause the officers did not mention any odor of burnt cannabisin their police reports and the passengers in the Oldsmobiletestified that no one was smoking cannabis in the car on thenight in question. Hansen also argues that, with no tests madeon the green leafy substance, there no basis to assume it wascannabis. As for Hansen's statement that he had smoked threebowls, Hansen claimed he actually meant he had smoked three bowlsthe day before.

The trial court is in a better position to determinethe credibility of the witnesses, and it resolved the disputedtestimony in favor of the officers' version of events. Also, theofficers were trained to detect the odor of burning cannabis,Hansen did have cannabis and smoking bowls on his person; andHansen admits he told the officers that he had smoked three bowlsbefore being stopped, although he claims he meant the day before. The manifest weight of the evidence supports the trial court'sfinding that the officers smelled the odor of burning cannabiscoming from the Oldsmobile.

The trial court found that, as a matter of law, thesearch of Hansen's pockets exceeded the scope of a Terry frisk. The State concedes this point on appeal.

The trial court also found, as a matter of law, thatthe odor of burnt cannabis gave Officer Harris probable cause tosearch the Oldsmobile and the driver (People v. Strong, 215 Ill.App. 3d 484, 490, 574 N.E.2d 1271, 1275 (1991)) and probablecause to search any containers in the car that belonged to Hansen(Wyoming v. Houghton, 526 U.S. 295, 143 L. Ed. 2d 408, 119 S. Ct.1297 (1999)). The trial court also found that if probable causeto arrest and search Hansen existed before the search was conducted, then the search could be upheld as a valid search incident to arrest. People v. Miller, 212 Ill. App. 3d 195, 200, 570N.E.2d 1202, 1206 (1991). The trial court found that probablecause to arrest and search Hansen did not exist before thesearch, however, because, under the holdings of the United StatesSupreme Court in United States v. Di Re, 332 U.S. 581, 92 L. Ed.210, 68 S. Ct. 222 (1948), and Houghton, a passenger has aheightened privacy expectation in his "person," which is entirelydifferent from the privacy expectation in containers, and thepassenger's person cannot be searched just because the driver,the vehicle, and passengers' containers can be searched.

The State claims that the trial court's ruling waserroneous as a matter of law because, under our decision in Boyd,298 Ill. App. 3d at 1122, 700 N.E.2d at 447, the odor of burningcannabis emanating from a lawfully stopped vehicle gives thepolice probable cause to search all passengers' persons withinthe enclosed space of a vehicle. We agree.

In Boyd, the police lawfully stopped a vehicle andordered the passengers to remain in the car. When the policeapproached the car, they detected the strong odor of burntcannabis emanating from the vehicle. The police then ordered apassenger to exit the vehicle, searched him, and found cocaine onthe passenger's person. This court held:

"[T]he officers' detection of the odor of burning cannabis emanating from the lawfully

stopped [vehicle] provided the officers with probable cause to search defendant, who was

a passenger in the car. To hold otherwise would lead to the illogical conclusion that when a

trained police officer detects the odor of a burning controlled substance emanating from a

lawfully stopped vehicle he can search only the driver and not the other occupants of the car

even though the smell was emanating from the enclosed space of the vehicle in which all 

occupants were present." (Emphasis in original.) Boyd, 298 Ill. App. 3d at 1127, 700

N.E.2d at 450.

Cf. People v. Fondia, 317 Ill. App. 3d 966, 970, 740 N.E.2d 839,842 (2000) (when dogs smell presence of drugs, individualizedsuspicion of a particular occupant is still required).

Under the holding in Boyd, it is clear that when atrained police officer smells burnt cannabis emanating from alawfully stopped vehicle, that officer may search the persons ofall passengers who were in the enclosed space of the vehicle. Therefore, when Officer Harris smelled burning cannabis emanatingfrom the Oldsmobile, he had probable cause to search everyone inthe Oldsmobile, including Hansen, making the search legal.

At this point, we note that the sole saving grace thatmade Officer Harris' search of Hansen legal was the fact that theofficers smelled the odor of burning cannabis emanating from theOldsmobile. This makes the fact that neither of the officersmentioned anything about an odor of cannabis in their policereports significant. Police reports are relied upon by defendants in preparing their defense and it could be prejudicial to adefendant if an officer's testimony at a hearing or trial suddenly added a pivotal fact not present in the police report thatchanges the entire nature of the case. We should be careful notto allow the subjective claim of an odor of burning cannabis,made after the fact, to become a way to justify searching allpassengers within the enclosed space of any vehicle as a matterof course.

The trial court's judgment that probable cause did notexist to search Harris was erroneous as a matter of law. Wereverse the trial court's judgment granting Hansen's motion tosuppress and remand for further proceedings consistent with viewsexpressed herein.

Reversed and remanded.

McCULLOUGH, P.J., and MYERSCOUGH, J., concur.