O.S. v. O.S.
O.S. v. O.S.
Opinion
¶ 1 Following a bench trial conducted in accordance with the Juvenile Court Act of 1987 ( 705 ILCS 405/1-1 et seq. (West 2016) ), minor respondent O.S. 1 was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time. On appeal, respondent contests his delinquency adjudication, arguing (1) the circuit court erred in denying his pretrial motion to suppress and (2) the State failed to prove him delinquent of the offenses beyond a reasonable doubt. For the reasons explained herein, we affirm the judgment of the circuit court.
¶ 2 BACKGROUND
¶ 3 On January 18, 2017, during the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm. The State subsequently filed a petition for adjudication *625 of wardship against respondent in connection with those events. In the filing, the State alleged that respondent was
"delinquent by reason of the following facts:
On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person, a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card (Section (3)(c) ), this being a Class 2 felony as the Minor-Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.
On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code, this being a Class 2 felony as the Minor-Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon.
On or about January 18, 2017, in violation of SECTION 24-3.1(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of UNLAWFUL POSSESSION OF FIREARMS, in that the above-named minor, being a person under 18 years of age, knowingly had in his possession a firearm of a size which may be concealed upon the person."
¶ 4 Respondent, in turn, filed a motion to quash his arrest and suppress evidence, arguing that he was unlawfully detained and searched absent a warrant, probable cause, or reasonable suspicion that he was armed or engaged in criminal activity, in contravention of his constitutional rights. The circuit court subsequently presided over a hearing on respondent's motion.
¶ 5 At the hearing, respondent testified that at approximately 9 p.m. on January 18, 2017, he was in the company of his cousin Max and his friend Kevin. The three young men were seated in Kevin's vehicle, which was idling in front of an apartment building located near the intersection of Lotus and Wellington Avenues. Respondent was seated in the front passenger seat, and Max was in the backseat. Respondent explained that they were waiting for a friend who lived at that apartment building to join them. The car was stopped parallel to the curb, approximately five feet from the intersection. Because of the cold temperature, the windows of the car were rolled up, and Kevin kept the car running as they waited. In addition, Kevin activated his vehicle's hazard lights. Respondent denied that anyone was smoking marijuana in the vehicle that evening. He specifically denied that anyone was smoking marijuana as the car was idling in front of the apartment building.
¶ 6 Respondent estimated that Kevin's car had been idling in front of the apartment building for approximately three minutes when a grey "detective car" pulled up alongside of them. The law enforcement vehicle then maneuvered "diagonally in *626 front of" Kevin's car and activated its emergency lights. Three police officers then exited the vehicle and approached and surrounded Kevin's car. Respondent explained that one of the officers stood in front of Kevin's car, the second approached the driver's side door, and the third approached the front passenger-side door. Kevin provided his license and registration in response to an officer's request. The officer standing on the passenger side of the vehicle then used his illuminated flashlight to tap the window and request that respondent lower the window. Respondent complied with the officer's request. After this brief interaction, the officers subsequently opened the doors of Kevin's vehicle and ordered the young men out of the car. As soon as respondent exited the vehicle, one of the officers conducted a pat down of his person. During the course of the pat down, the officer recovered a handgun from the right pocket of respondent's jacket. Respondent confirmed that he had been concealing the gun in his jacket pocket.
¶ 7 Respondent testified that he did not feel free to leave at any time during the encounter with the police officers. He explained that the officers essentially "jumped out of nowhere" and surrounded and "trapped" them.
¶ 8 On cross-examination, respondent admitted that he was unable to recall the name of the friend who he, Max, and Kevin were waiting for that evening. He was also unable to recall whether his cousin Max had a "blunt" tucked behind his ear. Respondent, however, denied that there were remnants of burnt cannabis in the backseat of Kevin's vehicle. Respondent was also unable to recall whether Kevin's vehicle had been stopped in a no parking zone. Upon being shown a photograph of the intersection of Lotus and Wellington, respondent acknowledged that there was a no parking sign located where Kevin's vehicle had been stopped on the evening of January 18, 2017. Respondent, however, did not recall observing the sign that evening. He did recall observing a stop sign at the intersection of Lotus and Wellington and estimated that Kevin's vehicle was stopped approximately "five feet away" from that intersection. Finally, respondent was unable to recall whether his cousin was also arrested that evening after the police officers recovered marijuana and cocaine from his person.
¶ 9 Following respondent's testimony, his attorney rested. Chicago police officer Jason Cloherty was called upon to testify on behalf of the State. Officer Cloherty testified that on the evening of January 18, 2017, he was a member of a three-person tactical team. Officer Rodriguez and Officer Ramos were the other members of the team. At approximately 9 p.m., the three officers were patrolling the 5400 block of West Wellington in an unmarked vehicle. He explained that they were patrolling that area because there had been reports of shots fired in that general vicinity during the previous three or four nights. Officer Cloherty testified that he was seated in the backseat of the vehicle and had his window "cracked." As the officers were traveling westbound on Wellington, Officer Cloherty "smelled the odor of cannabis." Officer Cloherty explained that cannabis has a distinctive smell and that he was familiar with that smell as a result of his frequent exposure to the drug during his years as a police officer. Upon smelling the distinctive odor, he looked to his immediate right and observed a Lexus sport utility vehicle (SUV) stopped in a no parking zone. Officer Cloherty knew the vehicle was in a no parking zone because there was a street sign that designated the area as such.
*627 ¶ 10 After observing the Lexus parked in a no parking zone and smelling the odor of cannabis, Officer Cloherty alerted Officer Rodriguez, who was driving the unmarked car, and directed him to "put a stop [t]here." Officer Rodriguez stopped the vehicle, and the officers then approached the Lexus. Officer Cloherty testified that he approached the front passenger side of the vehicle, while Officer Rodriguez approached the driver's side of the vehicle. Officer Rodriguez then began speaking to the driver through the lowered driver's side window, and it became apparent that the odor of cannabis was emanating from inside the Lexus. Officer Cloherty then requested respondent to lower the front passenger side window, and respondent complied. After respondent rolled down the window, Officer Cloherty used his flashlight to illuminate the interior of the Lexus. He observed another young man situated in the backseat of the vehicle. That young man "had a hand-rolled cigar with cannabis [tucked behind] his ear." After smelling marijuana and observing the blunt tucked behind the rear passenger's ear, Officer Cloherty and his partners ordered all of the passengers out of the vehicle. Officer Cloherty testified that he opened the front passenger side door so that respondent could exit the vehicle. When he opened respondent's door, he observed respondent reach his hand into his right jacket pocket and stand up. Officer Cloherty immediately instructed respondent "not to do that" and then put his own hand "on that pocket" and "felt a gun." He explained that he handles a handgun every day and has made "a lot" of gun-related arrests. As such, he was eminently familiar with the shape and feel of handguns. Officer Cloherty recovered the handgun from respondent's person. He identified the gun as a semiautomatic, black .22-caliber Beretta loaded with six live rounds and one in the chamber. Officer Cloherty then handcuffed respondent. He testified that other contraband was subsequently recovered from the Lexus, including a "partially smoked hand-rolled cigar with cannabis inside it."
¶ 11 On cross-examination, Officer Cloherty acknowledged that at the time the officers encountered the Lexus on October 18, 2017, they did not have any type of warrant for the vehicle or any of the occupants of that vehicle. He also acknowledged that Officer Rodriguez parked their unmarked police vehicle in a manner that "blocked" the Lexus. He confirmed that the Lexus's windows were all raised when police initially approached the car. Officer Cloherty further acknowledged that he did not observe any smoke in the vehicle or any marijuana or marijuana paraphernalia on respondent's person at any time during the encounter. He denied that he drew his weapon at any time during the encounter.
¶ 12 Upon the conclusion of Officer Cloherty's testimony, the State rested, and the parties then argued their respective cases. The circuit court, after hearing the aforementioned testimony and the arguments of the parties, denied respondent's motion to quash his arrest and suppress evidence. The court explained its rationale in open court as follows:
"[Respondent] testified that on January 18th, he was on his way to pick up a friend. He was a passenger in the car in the front seat. They parked in front of the building at approximately 5400 West Wellington. The car was running. The windows were up. [Respondent] denied that there was any cannabis smoking or that any cannabis had been smoked in the car, and frankly, the facts of the case lead me to believe that that's not a credible statement because the passenger had a blunt behind his ear and another burned blunt was recovered from *628 the vehicle. [Respondent] testified that a car pulled up on the side of them and then parked diagonally in front of their car. He didn't deny that there was a blunt behind Max's ear. He just couldn't recall if there was one. That was [respondent's] testimony. He did deny that there was a blunt with burned cannabis in the rear seat, but that was recovered by the police. He testified that [the officers] asked Kevin for his license and registration. Apparently, that window was down, which made the smell of cannabis even stronger to these trained officers. The officer then opened the door on the passenger side. The [respondent] got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket-jacket pocket. There is a no parking sign, which justified the initial stop. The police asked the driver to roll down his window first, and that's when the smell was even stronger. The [respondent] denies he put his hand on his right jacket pocket, and I don't believe him because he wasn't credible about the cannabis smoking in the vehicle.
Officer Cloherty, whose testimony I believe, testified that he always keeps his windows cracked when he's driving, winter and summer. They pulled parallel to this parked Lexus. He smelled cannabis coming from the car parked in a no parking zone. He went to the front passenger side. Officer Rodriguez went to the driver side and asked the driver to roll down the window, and then Officer Cloherty directed the passenger, [respondent] to roll down the window on the passenger side, and he again smelled an even stronger smell of marijuana. He testified that the person sitting behind the [respondent] had a hand-rolled cigar in his ear. [Officer Cloherty] could see the green, the green substance inside of it. He testified that as the [respondent] got out of the car, which the police have the right to do according to the cases given to me, the [respondent] reached for his right jacket pocket while Officer Cloherty said, don't do that. [Officer Cloherty] touched the pocket, immediately realized it was a gun, and arrested the [respondent]. In the rear seat, a partially smoked hand-rolled blunt was recovered.
So the motion to quash arrest and suppress evidence is respectfully denied."
¶ 13 Following the court's ruling, the cause proceeded to an immediate bench trial. At trial, the parties stipulated to the testimony that Officer Cloherty provided during the earlier suppression hearing. Defense counsel, however, elected not to stipulate to respondent's testimony. The State then called upon Officer Cloherty to provide additional details about his interaction with respondent on the evening of January 18, 2017. Officer Cloherty testified that after he recovered the loaded .22-caliber, black Beretta handgun from respondent's jacket pocket, he placed respondent under arrest. Respondent was then transported to the police station for processing. At that time, Officer Cloherty learned that respondent was 16 years old and identified respondent's date of birth. 2 Officer Cloherty testified that respondent did not show him a valid Firearm Owner's Identification (FOID) card. He further testified that respondent had not been issued a valid FOID card. Moreover, at the time that he found the gun on respondent's person, respondent was not hunting or *629 complying with any conditions under the Illinois Wildlife Code. Officer Cloherty testified that he inventoried the handgun in accordance with proper police protocol.
¶ 14 On cross-examination, Officer Cloherty acknowledged that he had not observed the handgun prior to conducting the pat down of respondent's person. Upon the conclusion of Officer Cloherty's testimony, the State rested. Respondent elected not to testify, and his attorney rested without calling any witnesses. The parties then delivered closing arguments. The circuit court ultimately adjudicated respondent delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a firearm that were contained in the State's adjudication petition. In doing so, the court found that the "State's proven beyond a reasonable doubt that the [respondent] [wa]s in possession of a loaded handgun without a Firearm Owners Identification Card. He was not on his own home, land, or fixed place of business, and he is under 18, and [the gun was of a] size that was concealed. There's a finding of guilty on Count 2, aggravated unlawful use of a weapon, Counts 1 and 3 merge into Count 2."
¶ 15 At the sentencing hearing that followed, the court heard evidence presented in aggravation and mitigation. After considering the evidence, including the respondent's prior arrests and delinquency adjudications, the court remanded respondent to the custody of the Department of Juvenile Justice. This appeal followed.
¶ 16 ANALYSIS
¶ 17 Motion to Suppress
¶ 18 On appeal, respondent first challenges the circuit court's denial of his pretrial motion to quash his arrest and suppress evidence. He submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers "seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate * * * criminal activity."
¶ 19 The State responds that the circuit court properly denied respondent's motion to suppress because the police officers had a reasonable articulable suspicion to initiate a Terry stop. Specifically, the State argues that "there was a reasonable, articulable suspicion of criminal activity to support the brief detention of minor-respondent where the police officer smelled cannabis emanating from the illegally parked vehicle * * * which minor-respondent occupied."
¶ 20 As a general rule, a circuit court's ruling on a motion to suppress is subject to a bifurcated two-prong standard of review. See
Ornelas v. United States
,
¶ 21 The right to be free from unlawful searches and seizures is protected by both the federal and state constitutions. U.S. Const., amend. IV ; Ill. Const. 1970, art. I, § 6 ;
Bartelt
,
¶ 22 For purposes of the fourth amendment analysis, a person is considered seized when a law enforcement officer, " ' "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." ' "
Luedemann
,
¶ 23 Relevant factors to consider when determining whether an individual was seized include (1) the threatening presence of multiple officers, (2) the display of a weapon by an officer, (3) some physical touching of the individual's person, and (4) the use or language or tone of
*631
voice indicating that compliance might be compelled.
United States v. Mendenhall
,
¶ 24 As a threshold matter, the parties agree that respondent was seized when police officers arrived on scene and positioned their unmarked squad car diagonally in front of Kevin's vehicle and then surrounded the vehicle. Upon review, we agree with the parties. The relevant testimony at the suppression hearing established that once Officer Cloherty directed his fellow officers to "put a stop" to Kevin's car, the unmarked police vehicle positioned itself diagonally in front of the idling SUV. The manner in which the police vehicle was positioned effectively blocked the idling car from driving away from the scene. It is well established that a police encounter with persons in a parked car may be classified as a seizure where a police officer positions his car in a manner that "blocks" the other vehicle. See,
e.g.
,
Luedemann
,
¶ 25 This does not end our inquiry, however, as we must next determine whether the seizure was reasonable.
Id.
at 181,
¶ 26 It is well established that distinctive odors can be "persuasive evidence" of criminal activity.
People v. Stout
,
¶ 27 Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois. See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act ( 720 ILCS 550/4 ) and decriminalizing the possession of "not more than 10 grams of any substance containing cannabis" and categorizing such possession as a "civil law violation punishable by a minimum fine of $100 and a maximum fine of $200). He relies on
Commonwealth v. Cruz
,
¶ 28 Some courts have found the rationale employed by the Massachusetts court persuasive. See,
e.g.
,
People v. Brukner,
¶ 29 Upon consideration, we are unpersuaded by respondent's argument regarding the effect of the recent amendment to the Illinois Cannabis Control Act on fourth amendment search and seizure jurisprudence. Illinois law still prohibits the knowing possession of cannabis. 720 ILCS 550/4 (West 2016) ("It is unlawful for any person knowingly to possess cannabis."). The recent amendment to the Cannabis Control Act simply treats the possession of "not more than 10 grams of any substance containing cannabis" as a "civil law violation" punishable by a fine.
¶ 30 Applying the aforementioned viable legal precedent, we further find that the search and seizure of respondent did not run afoul of the fourth amendment. The record establishes that at the time of the seizure, Officer Cloherty had smelled the distinctive odor of marijuana coming from the direction of a car that was idling in a no parking zone. Given that Illinois prohibits the knowing possession of marijuana and prohibits operating a vehicle while impaired and under the influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and provided the officers with reasonable suspicion to believe that criminal activity was afoot. When the officers approached the idling vehicle and spoke to the occupants through lowered windows, the odor of marijuana became more apparent. In addition, Officer Cloherty was able to see a marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided the officers with probable cause to search the vehicle and the vehicle's occupants.
Stout
,
¶ 31 Sufficiency of the Evidence
¶ 32 Respondent next challenges the sufficiency of the evidence. He argues that the State failed to present sufficient evidence concerning his age and his lack of a FOID card, which were necessary elements to prove him delinquent of aggravated unlawful use of a weapon and unlawful possession of a firearm.
¶ 33 The State disputes respondent's challenge to the sufficiency of the evidence and contends that Officer Cloherty's testimony conclusively established respondent's juvenile status as well as the fact that he had not been issued a FOID card at the time he was found in possession of a firearm.
¶ 34 Due process requires proof beyond a reasonable doubt to convict any person of a criminal offense.
*635
People v. Ross
,
¶ 35 A person commits the offense of aggravated unlawful use of a weapon, when "he or she knowingly * * * [c]arries or possesses on or about his or her person or in any vehicle or concealed on his or her person except when on his or her land or in his or her abode, 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 one or more of the statute's aggravating factors are present. 720 ILCS 5/24-1.6(a) (West 2016). In this case, the State's adjudication petition alleged that respondent was delinquent of 2 counts of aggravated unlawful use of a weapon. In the first count, the aggravating factor was the fact that respondent "has not been issued a currently valid [FOID] card" (
id.
§ 24-1.6(a)(1), (a)(3)(C) ), whereas the second count was predicated on the fact that respondent was "under 21 years of age" (
id.
§ 24-1.6(a)(1), (a)(3)(I) ). The adjudication petition also alleged that respondent was delinquent of the offense of unlawful possession of a firearm in that he was under 18 years of age at the time he possessed the firearm, which was of a size that could be concealed on his person.
¶ 36 It is well settled that a person's age may be established as an element of an offense beyond a reasonable doubt when "a police officer testifies before the court about an offender's response to inquiries from law enforcement officers regarding his age." (Emphasis omitted.)
In re S.M.
,
¶ 37 Respondent, however, also argues that the State failed to present sufficient evidence that he had not been issued a valid FOID card. Like the element of an offender's age, a police officer's testimony may be sufficient to establish the lack of a FOID card. See,
e.g.
,
People v. Grant
,
¶ 38 CONCLUSION
¶ 39 The judgment of the circuit court is affirmed.
¶ 40 Affirmed.
Presiding Justice Mason and Justice Hyman concurred in the judgment and opinion.
To better preserve the privacy of minor respondent, this court has elected not to identify his first name and instead will simply use his initials or refer to him as "respondent." This court has also changed the caption of this case to reflect this decision.
Officer Cloherty identified respondent's specific date of birth at the bench trial; however, in order to better preserve the privacy of respondent, this court will not include that information in this disposition.
As mentioned previously, although Officer Cloherty identified respondent's date of birth at the bench trial, this court will not include that information in this disposition.
Reference
- Full Case Name
- In RE O.S., a Minor, (The People of the State of Illinois, Petitioner-Appellee, v. O.S., Respondent-Appellant).
- Cited By
- 8 cases
- Status
- Unpublished