People v. Weaver, 3–13–0054.

• Decision Date: 19 December 2013
• Docket Number: No. 3–13–0054.,3–13–0054.
• Citation: 377 Ill.Dec. 705,2 N.E.3d 621,2013 IL App (3d) 130054
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Harold WEAVER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (3d) 130054

2 N.E.3d 621

377 Ill.Dec. 705

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Harold WEAVER, Defendant–Appellant.

No. 3–13–0054.

Appellate Court of Illinois, Third District.

Dec. 19, 2013.

Bruce L. Carmen (argued), Carmen Law Office, PC, Cambridge, for appellant.

Terence M. Patton, State's Attorney, Cambridge (Nadia L. Chaudhry, Judith Z. Kelly (argued), State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Harold Weaver, was arrested after a traffic stop led to the discovery of raw cannabis in the trunk of his car. Following a stipulated bench trial, the trial court found defendant guilty of unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2012)) and sentenced him to 12 years in prison. On appeal, defendant argues that the court erred in denying his motion to suppress the evidence against him because the “faint odor” of cannabis emanating from the backseat of his vehicle did not give the officer probable cause to search the trunk. We affirm.

¶ 2 At the motion to suppress hearing, Officer Sean Veryzer testified that on August 4, 2012, he was on duty as a state trooper assigned to patrol Interstate 80. Around 8 p.m., he observed defendant's vehicle traveling eastbound at a high rate of speed. He fixed his radar on defendant and clocked the vehicle at 70 miles per hour in a 65–mile–per–hour zone. Veryzer activated his lights and pulled defendant over.

¶ 3 As Veryzer approached defendant's vehicle, he noticed that the rear window was down “about three inches.” He reported a strong odor of laundry detergent or fabric softener emanating from the vehicle. Veryzer informed defendant that he was speeding and asked defendant to sit in his squad car while he issued a written warning.

¶ 4 After Veryzer completed the warning, he escorted defendant back to his car and informed defendant that he was “good to go.” As defendant walked back to his vehicle, Veryzer called to him and started asking him a few more questions. Veryzer asked defendant if he could look in the trunk. Defendant initially said “yes” but then withdrew his consent and said that he needed to go. Veryzer then asked if he could search the interior portion of the vehicle, and defendant consented. Defendant opened the rear door and allowed Veryzer to search the car. A few moments later, Veryzer emerged and informed defendant that he detected the faint odor of cannabis. He then read defendant his Miranda rights and searched the trunk of the car.

¶ 5 Veryzer testified that he had been a state trooper for four years and had taken more than 140 hours of criminal patrol classes for drug interdiction, which were designed to train officers for drug trafficking. He testified that, based on the knowledge he gained in those classes and the numerous arrests he had made, he was familiar with the smell of raw cannabis and could differentiate between raw and burnt marijuana. During the search of defendant's vehicle, he detected the odor of raw cannabis from the backseat area of the vehicle.

¶ 6 On redirect examination, Veryzer testified that he retrieved a duffel bag from the trunk of defendant's car and that the bag contained cannabis wrapped in small sealed plastic bags that were then placed in large bags that were also sealed. Sheets of fabric softener had been placed between the packaging.

¶ 7 Defendant testified that he packaged the cannabis himself. He placed the cannabis in oven bags and then layered the bags with two commercial style oven bags that he taped shut. He placed dryer sheets between the two commercial oven bags. Defendant testified that he was not able to smell cannabis as he was driving. He testified that he did not give Officer Veryzer consent to search the trunk of his car. In closing, defendant argued that, assuming he consented to the search and that his consent was valid, the faint odor of cannabis was insufficient evidence to meet the “plain smell” test for probable cause to search the trunk.

¶ 8 The trial court denied defendant's motion to suppress. In reaching its decision, the court stated that it found Veryzer's testimony that he smelled the “faint odor” of raw cannabis credible. The court noted that the officer was trained to detect the odor of raw marijuana and concluded that the officer's detection of the odor of cannabis in the rear of the vehicle gave him probable cause to search the trunk.

¶ 9 The matter was set for a stipulated bench trial. At the stipulated bench trial, the following discussion occurred:

“THE COURT: All right. All right, so it's a stipulated bench trial tantamount to a plea of guilty.

MR. CARMEN: That's right.

THE COURT: Is that your understanding as well.

MR. KERR [Assistant State's Attorney]: That's my understanding, Judge.”

The court then accepted defendant's jury waiver and admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 1997). In admonishing defendant, the court stated:

“THE COURT: Do you understand that a stipulation is to all the evidence against you and that the stipulation of the evidence against you would be a corresponding finding of guilt? Do you understand that?

DEFENDANT: Yes sir.

THE COURT: Now, in a stipulated bench trial, you still have the right to confrontation and the right to present witnesses during a stipulated bench trial. Do you understand that?

DEFENDANT: Yes sir.

THE COURT: And do you understand the State still has the burden of proof beyond a reasonable doubt in a stipulated bench trial? Do you understand that?

DEFENDANT: Yes, sir.

THE COURT: Therefore, Mr. Carmen, you're stipulating that there is sufficient evidence to convict the defendant.

MR. CARMEN: Yes.”

¶ 10 The conversation later continued:

“THE COURT: Now, the stipulation is a plea of guilty to Count I.

MR. CARMEN: Count I, yes.

* * *

THE COURT: And Counts II and II are going to be dismissed, correct:

MR. CARMEN: Yes.

* * *

THE COURT: And this is an open plea or negotiated?

MR. CARMEN: Brian and I have talked about his, but I'm not sure we have cemented down all the terms here, but I think—Can we go off the record for a second? THE COURT: Yes. Off the record.

THE COURT: Ok, so on the record, what is the negotiation?

MR. KERR: Twelve years in the Illinois Department of Corrections, followed by three years of mandatory supervised released.”

¶ 11 The prosecutor then provided a factual basis for the offense. The prosecutor stated that defendant was stopped on Interstate 80 for speeding. Veryzer wrote defendant a warning, told him that he was “good to go” and then asked defendant if he could search the interior portion of the car. Defendant agreed to the search and, upon searching the vehicle, Veryzer detected a “faint odor” of raw cannabis coming from the vertical portion of the rear seat. Defendant was placed under arrest and the trunk was searched. During the search, Veryzer recovered two duffel bags containing a total of 28 pounds of cannabis. Defendant later told investigators that he was driving to New York to deliver the cannabis and that this was his sixth trip across the country since May of 2012. State lab tests confirmed that the bags contained cannabis.

¶ 12 The court asked defendant if he agreed with the stipulation, and defendant stated that he did. The court also asked defense counsel, “Are you agreeing that there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt?” Carmen answered “Yes, Your Honor.” The trial court found that the stipulation was knowing and voluntary and concluded that there was sufficient evidence to find the defendant guilty beyond a reasonable doubt of unlawful cannabis trafficking.

¶ 13 During sentencing, the court stated:

“I just want to tell you, this is a negotiated plea, and I've accepted the negotiation, so I can't change the terms of the negotiation. * * * I am going to sentence you to 12 years in the Illinois Department of Corrections, to be followed by the three years' mandatory supervised release.”

The court then recited the following admonishments:

“Now, I must advise you that you do have the right to appeal the judgment of conviction only if notice of appeal is filed in the trial court within 30 days from today's date. If you desire to challenge any part of the sentence or sentencing hearing, you must file prior to an appeal a motion to reconsider the sentence or any challenge to the sentencing hearing, within 30 days of today's date. This motion must be in writing and must set forth all the issues or claims of error about the sentence or the sentencing hearing. If you cannot afford it, a copy of the transcript of this stipulated bench trial and sentencing hearing will be provided for you. If you cannot afford an attorney, one will be appointed to assist you in the appeal or motion to reconsider the sentence. That if the notice of appeal or motion to reconsider is not filed within 30 days of today, you will lose your right to appeal and challenge the sentence. If the motion to reconsider the sentence is denied and you still desire to appeal, you must file—you must request the clerk to file a notice of appeal within 30 days of the date that the motion to reconsider was denied. Any issue or claim of error about the sentence imposed or any part of the sentencing hearing you fail to raise in your written motion will not be considered by the appellate court. Do you understand what I've said?”

Defendant responded that he did.

¶ 14 Within 30 days of the judgment and sentence, defendant filed a notice of appeal, challenging the court's suppression ruling. Defendant did not file a motion to withdraw the stipulation or reconsider the sentence prior to filing his notice of appeal.

¶ 15 I. Jurisdiction on Appeal

¶ 16 The State initially argues that we lack jurisdiction to consider defendant's appeal because the stipulated bench trial was tantamount to a guilty plea and defend...