(This post originally ran with the Daily Law Bulletin on March 19, 2014).
This year is likely to bring a series of interesting rulings from the State’s five appellate courts and eventually from the Supreme Court on how the recent liberalized marijuana and gun laws impact 4th amendment analysis for stops and frisks.
After a directive from the federal courts, the Illinois legislature passed conceal and carry legislation that has gone into effect, essentially exempting from criminal activity “any person carrying a concealed pistol, revolver, or handgun” if they have “been issued a currently valid license under the Firearm Concealed Carry Act.” Also beginning this year, prescription marijuana is now legal.
These two statutory changes raise obvious questions: 1) if an officer smells marijuana does that still create reasonable suspicion that a crime is occurring sufficient to allow for a brief stop and questioning of that person; and 2) if the officer reasonably fears that the person stopped may have a firearm, are they still allowed to do a quick pat-down for officer safety without first inquiring whether the person has a gun and whether they are validly licensed?
For nearly 50 years, courts have allowed a “reasonable suspicion” exception to the probable cause and warrant language of the 4th Amendment. That exception was carved out in the Supreme Court case of Terry v. Ohio. As a result, brief detentions for questioning based on reasonable suspicion that a crime has or is occurring is often called a “Terry Stop”.
The Terry Stop framework has been applied to stops of both pedestrians and vehicles, by both the United States Supreme Court and in Illinois. Illinois courts have consistently held that if a police officer testifies that they smelled cannabis, then they had reasonable suspicion to stop pedestrians. Illinois courts have also regularly held that the smell of burnt marijuana was a sufficient basis to search cars stopped during a traffic stop. This standard was articulated as recently as a February 3rd of this year in an unpublished first district appellate case of People v. Beals.
A survey of Illinois appellate and supreme court cases analyzing motions to suppress on 4th Amendment grounds reveals more than 80 cases that rely on the smell of burnt marijuana as a sufficient basis (either by itself or in conjunction with another factor) to either stop and question a pedestrian or to search a car.
The question that criminal defense attorneys will undoubtedly begin to raise is whether this is now inapplicable. In the very least, it is likely that an officer that smelled marijuana would have to ask the person stopped if they have a prescription prior to making the assumption that a crime has been committed. But, in a pedestrian situation, the pedestrian would be free to walk away and not answer the question.
In a traffic-stop scenario it gets murkier. It is unlikely that any court would approve a search of a car based on testimony from a police officer that he pulled over a car and saw a bottle of what appeared to be prescription drugs. The presence of a bottle of prescription drugs alone is not reasonable suspicion that a crime has or is occurring. Nor can the presence of an order of marijuana. But, once the car has been stopped, can the officer questioning the occupants of the car as to whether anyone has a prescription for marijuana. That likely will turn on the basis for the original stop.
Taking the pedestrian stop to the next logical step, the question becomes: is it still reasonable to do protective pat downs just because an officer reasonably believes the person stopped is carrying a gun. Terry stops of pedestrians often involve quick protective pat-downs or “frisks”. New York, of course, recently conceded that their practice of randomly stopping and frisking young pedestrians was unconstitutional. The legal basis for a frisk during a Terry stop is that the officer reasonably believes that the person is carrying a gun and is doing the frisk for protective purposes.
Illinois’ Third Appellate District recently did a full analysis of the lawful basis protective pat down during a protective pat down in a case titled People v. Porter. That court reversed the trial court’s denial of a motion to suppress in a gun case where the protective pat down search during a terry stop resulted in the finding of a gun on the person.
The Porter Court reiterated that “a limited search for weapons, or a ‘frisk’ is warranted only if a police officer has reason to believe that the defendant is armed and dangerous.” As such, according to the Porter Court, which cited Illinois Supreme Court precedent, when a stop and frisk “goes beyond what is necessary to determine if a suspect is armed [and dangerous], it is no longer valid under Terry [v. Ohio].”
Given that the state legislature has now granted the right (or some would argue, acknowledged the 2nd Amendment right that already existed) to citizens to carry concealed weapons, there is an argument to be made that no frisk during a Terry stop is lawful unless it follows a series of questions as to whether the person is armed and whether they have a valid conceal and carry license.
Notably, because of the recent implementation of conceal and carry laws across the country, Illinois is not alone in this developing law. Jurisdictions that have addressed it are going in different directions. Last fall, for instance, the Florida Supreme Court ruled that it was not necessary for a police officer to inquire as to whether a suspect has a valid carry license prior to doing a pat down in the case of Mackey v. State.
How Illinois courts come down on this issue remains to be seen.