2021 IL App (1st) 180927-U

No. 1-18-0927 

Order filed May 17, 2021 

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

IELIOT JACKSON, 

Defendant-Appellant. 

)

) 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the

Circuit Court of

Cook County. 

No. 16 CR 14428

Honorable 

Darron E. Bowden and 

Patrick K. Coughlin, 

Judges, presiding. 

JUSTICE HYMAN delivered the judgment of the court. 

 Presiding Justice Walker and Justice Pierce concurred in the judgment. 

 ORDER

¶ 1 Held: Reversed conviction of possession of cannabis where the trial court erroneously 

denied Jackson’s motion to suppress evidence.

¶ 2 A jury convicted Ieliot Jackson of possession of more than 30 but not more than 100 grams 

of cannabis and sentenced him to two years’ imprisonment. On appeal, Jackson argues the trial 

court erred in denying his motion to suppress evidence because the police officer lacked 

reasonable, articulable suspicion of criminal activity. We agree. 
No. 1-18-0927 

- 2 - 

¶ 3 Jackson was seized when officers frisked him after approaching him in a manner that 

blocked his access to his SUV while asking him accusatory questions. At that moment, the only 

evidence officers had to justify his seizure was Jackson’s decision to run out of the way of a police 

car in a parking lot and his tossing an unknown object into the backseat of his SUV. Amounting 

to nothing more than a hunch, the officers failed to justify seizing Jackson, frisking him, and 

searching his SUV. The trial court should have granted Jackson’s motion to suppress and because 

the State could not have secured a conviction without the unlawfully obtained evidence, we reverse 

Jackson’s conviction outright.

¶ 4 Background 

¶ 5 Charged with 11 counts, Jackson went to trial on one count of armed habitual criminal (720 

ILCS 24-1.7(a) (West 2016)) and one count of possession with intent to deliver more than 30 but 

not more than 500 grams of cannabis (720 ILCS 550/5(d) (West 2016)). The State nol-prossed the 

other counts.

¶ 6 Motion to Suppress 

¶ 7 Before trial, Jackson filed a motion to quash arrest and suppress evidence alleging that the 

police officer who stopped him did not have a reasonable suspicion that he had been or was about 

to be involved in criminal activity. Jackson asserted that the officer did not see Jackson do anything 

illegal before approaching him and, when the officer performed a protective pat-down, he did not 

find firearms or illegal items on Jackson’s person. Only after Jackson refused a search of his car

did the officer claim he smelled marijuana, which was relied on to conduct a search leading to the 

discovery of physical evidence. 
No. 1-18-0927 

- 3 - 

¶ 8 At the hearing on the motion, Markham police officer Matt Carey testified he was in 

uniform on routine patrol alone in a marked squad car when he saw Jackson walk through a parking 

lot of a night club. Carey had an unobstructed view of Jackson. According to Carey, Jackson

“learned of [Carey’s] presence,” ran to a parked SUV, removed something from his waistband, 

opened the rear passenger door, and placed the item inside. Carey did not see what Jackson put in 

the SUV; the lot was “[f]airly dark.” Jackson closed the door, opened the front passenger door, 

and retrieved a can of “Fix-a-Flat.”

¶ 9 When Carey saw Jackson remove the item from his waistband, he called for assistance. 

Carey drove past the SUV, made a U-turn to face the rear of the SUV, and continued to watch 

Jackson as he closed the passenger door and moved to the “rear hatch” of the SUV. After assistance 

arrived, Carey approached Jackson on foot and asked what he was doing. Jackson said he was 

putting air in his tires. Before patting Jackson, Carey did not see a weapon or illegal substance on 

Jackson; Carey patted Jackson down and did not feel a weapon. Carey asked Jackson if he had 

anything illegal, and Jackson replied he did not. Carey asked if he could search the SUV, and 

Jackson said no.

¶ 10 A minute or two later, Carey called for a canine unit, which arrived in about a minute.

Jackson then admitted he had marijuana in his pockets. Carey removed suspect marijuana from 

Jackson’s right pocket. The dog sniffed Jackson’s SUV, and Carey recovered a large freezer-sized 

Ziploc bag of suspect marijuana from inside the rear hatch. The bag was not visible to Carey before 

the dog arrived. Police also recovered a .9-millimeter high point semiautomatic handgun from 

under a towel or shirt below the rear passenger seat, where Carey had seen Jackson open the door

and put something inside. 
No. 1-18-0927 

- 4 - 

¶ 11 On cross-examination, Carey said Jackson’s SUV had backed into a parking spot with a

chain link fence behind it and an opening to the left where traffic could drive through. Carey, 20 

to 30 feet away, saw Jackson’s right side as he ran towards the SUV, and Jackson raise his shirt 

before removing an item from his waistband. “Due to the lighting” Carey could not make out the 

item. When Jackson opened the rear passenger door, it blocked Carey’s view of Jackson’s torso. 

Given Carey’s experience as a police officer, which included recovery of many weapons from 

individuals’ waistbands, “a common place to hold a weapon,” Carey believed Jackson had 

removed a gun and placed it inside the SUV. He radioed for assistance because he believed Jackson

had a weapon. 

¶ 12 Carey drove through the opening in the fence and made a U-turn, pulling up 10 or 15 feet 

behind Jackson’s SUV and illuminating the back of it with his headlights. Jackson opened the 

SUV’s rear hatch, reached inside, shuffled stuff around for 30 seconds, removed a portable air 

compressor, and closed the trunk. Carey did not see Jackson go to a specific tire and, when Carey 

looked at the tires, all appeared adequately inflated. 

¶ 13 Responding to a question from Carey, Jackson said he did not have anything illegal on him. 

Carey patted Jackson down for his and his partner’s safety because he believed Jackson had a 

weapon and wanted to make sure that he did not have “another” one. About 30 seconds after he 

had left his squad car, Carey checked Jackson’s waistband and chest for a hard object but did not 

feel anything consistent with a weapon. 

¶ 14 After Jackson denied that he had anything illegal in the SUV and declined Carey’s request 

to search it, Carey radioed for a canine unit while in Jackson’s presence. When the marked “Canine 

Unit” vehicle pulled up a minute later, Jackson admitted he had marijuana in his pockets. Carey 
No. 1-18-0927 

- 5 - 

had not asked him again whether he had anything on him. After recovering six bags of suspect 

marijuana from Jackson’s pockets, Carey handcuffed Jackson and placed him inside his squad car. 

The canine handler conducted an open-air sniff of the SUV, and the dog indicated an illegal 

substance near the rear hatch. The canine handler opened the rear hatch, and the dog pointed his 

nose where Carey saw Jackson move things around. Carey found a bag of suspect marijuana in the 

rear hatch.

¶ 15 On redirect examination, Carey said he called the canine unit within a minute of speaking 

to Jackson because he smelled an odor of marijuana on Jackson and Jackson said he smoked it 

inside the club. Carey called the canine unit after Jackson told Carey he could not search the SUV. 

¶ 16 Following arguments, the trial court denied Jackson’s motion. The court determined that 

the totality of the circumstances gave rise to a reasonable suspicion of potential criminal activity 

as required for a Terry stop. Specifically, the court noted that Jackson looked at Carey, started 

running to the SUV, lifted his shirt, removed something from his waistband, opened the rear 

passenger door, and leaned in. The court noted that a brief investigative detention allowed under 

Terry then occurred. Although he found nothing during the pat-down, Carey smelled marijuana 

and called for a canine unit. When the canine unit pulled up, Jackson admitted that he had 

marijuana, which Carey recovered from Jackson’s pockets. This established probable cause for 

arrest. The court explained that the law allows a canine sniff around the outside of a vehicle if 

there is suspected contraband, and the dog alerted the officers to contraband in the rear hatch. The 

court added that the handgun was recovered during the search incident to arrest. 

¶ 17 Jackson filed a motion to reconsider. Citing People v. Aguilar, 2013 IL 112116 and cases 

following Aguilar, he argued that there was no reasonable, articulable suspicion of criminal 
No. 1-18-0927 

- 6 - 

activity sufficient to warrant a Terry stop based on the possible observation of a handgun. Jackson

added that flight alone does not indicate criminal activity. 

¶ 18 The trial court denied Jackson’s motion. In particular, the court reiterated that, in Carey’s

experience, he thought Jackson removed a weapon from his waistband, which allowed Carey to 

inquire into what the item was. When Carey approached Jackson, he smelled marijuana. After 

Carey called for the canine unit, Jackson admitted he had marijuana on his person. The dog then 

indicated contraband in the SUV’s rear hatch where more marijuana was recovered. The court said 

that if the case just concerned a weapon and an arrest occurred without question of a Firearm 

Owner’s Identification (FOID) or concealed carry license, it would have granted Jackson’s motion.

But, once the officers found marijuana on Jackson and in the SUV, they had probable cause to 

search the SUV for a weapon. 

¶ 19 Trial

¶ 20 The State proceeded to trial on one count armed habitual criminal and one count possession 

with intent to deliver more than 30 but not more than 500 grams of cannabis. 

¶ 21 At trial, Carey testified that although he could not see the item Jackson placed in the SUV, 

he believed it was a weapon and called for assistance, including a canine unit. About one minute 

later, Markham police officer Andero, who was also in uniform, arrived in a marked vehicle. Carey 

and Andero got out of their cars and Carey approached Jackson on the passenger side of the SUV. 

Carey casually asked Jackson what he was doing and conducted a protective pat-down of Jackson

for weapons. Jackson said he was inflating his tires, which did not appear deflated. During this 

initial encounter, Carey detected an odor of marijuana emanating from Jackson. Carey asked if 

Jackson had any illegal items on his person or in the SUV, and Jackson said he did not. Carey told 
No. 1-18-0927 

- 7 - 

Jackson that he smelled marijuana and Jackson said he had smoked marijuana earlier in the day. 

Carey then asked if he could search Jackson’s SUV, and Jackson said no. Carey responded that a 

canine unit was en route. 

¶ 22 When the canine unit arrived, Jackson said that he had drugs in his pockets. The officers 

recovered suspect marijuana from Jackson’s pockets, handcuffed him, and moved him into Carey’s

squad car. Carey asked the canine handler to conduct an open-air sniff of Jackson’s SUV. After 

the dog indicated contraband in the rear of the SUV, Carey recovered suspect marijuana there. 

Carey then performed a further search of the SUV and recovered a loaded .9-millimeter high point 

semiautomatic handgun underneath the rear passenger seat. On cross-examination, Carey testified 

that he called for assistance when he saw Jackson run to his SUV and because the canine unit was 

on general patrol at that time, it responded. 

¶ 23 Markham police officer and canine handler Joseph Johnston testified that when he got out 

of his vehicle, he observed Carey and Andero recover clear plastic baggies containing suspect 

marijuana from Jackson’s front pants pockets. During an exterior air sniff of the SUV, his dog 

alerted Johnston to contraband in the rear “cargo area.” Johnston conducted a probable cause 

search of the area, finding a freezer bag containing plastic baggies. The dog also helped the officers 

find blunt wraps containing suspect marijuana in the center console ashtray. On cross-examination, 

Johnston testified that he never saw Jackson with the marijuana found in the trunk. On redirect 

examination, Johnston testified that he was initially called to the scene as a regular assisting officer.

¶ 24 Retired Illinois State Police forensic scientist Deborah Magolan testified that the large 

Ziploc bag contained eight knotted plastic bags and 30 Ziploc bags of plant material. The eight 

knotted bags weighed 24.5 grams, and the 12 tested Ziploc bags weighed a total of 6.9 grams, for 
No. 1-18-0927 

- 8 - 

a combined total weight of 31.4 grams. The plant material tested positive for the presence of 

cannabis.

¶ 25 An Illinois State Police forensic scientist testified the recovered handgun was in operating 

condition. 

¶ 26 The State entered several stipulations. The first provided that the officers did not recover 

vehicle keys on Jackson’s person. A second provided that, if called, an Illinois State Police latent 

print examiner would testify he examined the recovered handgun and did not find latent prints 

suitable for comparison. A third provided that Jackson had convictions of two qualifying offenses. 

¶ 27 Defense counsel renewed Jackson’s motion to suppress evidence based on the “new 

evidence” that Carey called for a canine unit before getting out of his squad car and alleging that 

Jackson was already in custody and being searched when the unit arrived. The State argued (i) 

Jackson’s actions provided sufficient suspicion for Carey to conduct a Terry stop, (ii) the canine 

unit was called as regular backup, and (iii) only after Jackson disclosed he had marijuana was he 

arrested and his SUV searched incident to the arrest. Defense counsel responded that before Carey 

smelled marijuana, police seized Jackson. The trial court denied Jackson’s motion. 

¶ 28 The jury found Jackson not guilty of armed habitual criminal and guilty of the lesser 

included offense of possession of more than 30 but not more than 100 grams of cannabis (720 

ILCS 550/4(c) (West 2016)). Jackson filed a motion for judgment notwithstanding the verdict or 

a new trial, arguing, among other issues, that the trial court erred in denying his motion to suppress. 

The court denied Jackson’s motion, noting that a different judge presided over the hearing on the 

original motion to suppress but based on the evidence at trial, the officers acted appropriately. 
No. 1-18-0927 

- 9 - 

¶ 29 The trial court sentenced Jackson to two years’ imprisonment, and denied his motion to 

reconsider the sentence.

¶ 30 Analysis 

¶ 31 Jackson challenges the initial stop and protective pat-down, arguing the trial court should 

have granted his motion to suppress because he was seized in the absence of a reasonable, 

articulable suspicion of criminal activity. Jackson requests reversal of his conviction as the

marijuana underlying his conviction should have been suppressed as the fruit of an unconstitutional 

search. 

¶ 32 A defendant bears the burden of proof at a hearing on his motion to suppress 

evidence. People v. Gipson, 203 Ill. 2d 298, 306 (2003). Once a defendant makes a prima 

facie case that the police obtained the evidence by an illegal search or seizure, the burden shifts to 

the State to present evidence to counter the prima facie case. Id. at 306-07. The ultimate burden 

of proof remains with the defendant. Id. at 307.

¶ 33 We review a trial court’s ruling on a motion to suppress according to a bifurcated twoprong standard. People v. Johnson, 237 Ill. 2d 81, 88 (2010). We accord great deference to the trial 

court’s factual findings and will reverse those findings if they are against the manifest weight of 

the evidence. Id. “A judgment is against the manifest weight of the evidence only when an 

opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based 

on evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). We then review de novo the trial 

court’s ultimate legal ruling. People v. Johnson, 237 Ill. 2d 81, 88-89 (2010). Thus, we may engage 

in our own assessment of the facts presented at the hearing on the motion and trial, and draw our 

own conclusions regarding the appropriate relief. Id. 
No. 1-18-0927 

- 10 - 

¶ 34 The United States Constitution and the Illinois Constitution protect people from 

unreasonable searches and seizures by the government. U.S. Const., amends. IV, XIV; Ill. Const. 

1970, art. I, § 6; People v. Lopez, 229 Ill. 2d 322, 345 (2008). “Reasonableness” generally requires 

a warrant supported by probable cause, but Terry v. Ohio, 392 U.S. 1 (1968) established an 

exception to the warrant requirement. People v. Johnson, 237 Ill. 2d 81, 89 (2010). Under Terry, 

a police officer may conduct a brief, investigatory stop when he or she has “a reasonable, 

articulable suspicion of criminal activity, and such suspicion amounts to more than a mere ‘hunch.’ 

” People v. Gherna, 203 Ill. 2d 165, 177 (2003) (quoting Terry, 392 U.S. at 27). Further, “when 

an officer is justified in believing that the individual whose suspicious behavior he [or she] is 

investigating at close range is armed and presently dangerous to the officer or others, the officer 

may conduct a pat-down search to determine whether the person is in fact carrying a weapon.”

People v. Sorenson, 196 Ill. 2d 425, 432 (2001). An officer’s valid reason to stop a person does 

not automatically justify the further intrusion of a search for weapons; the validity of an 

investigative stop presents a separate question from whether a search for weapons is valid. Id. at 

433. 

¶ 35 The fourth amendment only comes into play when a defendant is seized. So first, we 

determine when police seized Jackson. People v. McMichaels, 2019 IL App (1st) 163053, ¶ 16. 

Not every interaction with a police officer results in a seizure. People v. McDonough, 239 Ill.

2d 260, 268 (2010). Instead, courts have divided encounters into three tiers: (i) arrests or 

detentions supported by probable cause; (ii) brief investigative detentions or Terry stops supported 

by a reasonable, articulable suspicion of criminal activity; and (iii) consensual encounters 

involving neither coercion nor detention that do not implicate the fourth amendment. Id.
No. 1-18-0927 

- 11 - 

¶ 36 Police officers may approach and ask someone potentially incriminating questions without 

violating the fourth amendment if the person asked is willing to listen. People v. Luedemann, 222 

Ill. 2d 530, 549 (2006). Whether a seizure occurred depends on whether a reasonable person would 

feel free to decline the officer’s requests or otherwise terminate the encounter. Id. at 550. Factors 

indicative of a seizure include: (i) the threatening presence of several officers, (ii) the display of a 

weapon by an officer, (iii) some physical touching of the person, and (iv) the use of language or 

tone of voice indicating compliance with the officer’s request might be compelled. Id. at 553 

(citing United States v. Mendenhall, 446 U.S. 544, 554 (1980)). These factors are not exhaustive, 

and “a seizure can be found on the basis of other coercive police behavior.” Id. at 557. 

¶ 37 The parties disagree on when officers seized Jackson. Jackson asserts that seizure occurred 

when the officers arrived, “boxed” in his SUV, questioned, and frisked him. The State counters 

that Jackson was not seized until after Carey smelled marijuana and performed the protective patdown. We find Jackson was seized as soon as two uniformed officers approached him from 

opposite directions, asked him what he was doing, and frisked him. 

¶ 38 We agree with Jackson that the first Mendenhall factor—the threatening presence of 

several police officers—is satisfied. The State cites People v. Cosby, 231 Ill. 2d 262 (2008), for 

the proposition that the presence of two officers is not enough to transform an otherwise consensual 

encounter into a seizure. Id. at 278 (“presence of only two officers, without more, is not a factor 

that would indicate a seizure occurred.”). We have more. Carey pulled behind Jackson’s SUV and, 

with his lights on, sat facing the SUV for a full minute while waiting for backup to arrive. To any 

reasonable person this is investigatory behavior, not indicative of a consensual encounter. Once 
No. 1-18-0927 

- 12 - 

the second police car came, the positioning of the officers’ cars made it difficult, perhaps 

impossible, for Jackson to drive away.

¶ 39 More importantly still, the officers’ approach prevented Jackson from getting back into his 

car to attempt to drive away, even if he had felt free to do so. The officers approached Jackson on 

the passenger side from opposite directions rendering it impossible for him to get back in the 

driver’s seat absent a gymnastic climb through the SUV. This was not, as Carey described it, a 

“causual” manner of approach.

¶ 40 The second Mendenhall factor is absent. Though the officers were in uniform, which we 

can reasonably assume includes a duty belt with a gun, there is no indication the officers 

unholstered their guns or brandished them. 

¶ 41 The third Mendenhall factor was present because it is undisputed that Carey frisked 

Jackson. The timing of the frisk is somewhat unclear, but on closer examination of the record, we 

can narrow it down. At the suppression hearing Carey described the initial conversation with 

Jackson about his tires, a question about whether he had anything illegal in his car, and then the 

frisk right after Jackson denied having contraband. At trial, Carey described a similar conversation 

about the tires. Then he described asking Jackson a series of questions including whether he had 

contraband on his person (Jackson denied it), whether he had contraband in the car (Jackson denied 

that too), and whether Carey had permission to search the SUV (Jackson declined). 

¶ 42 After asking Carey questions about his carside interrogation, the State asked: “At any time 

did you conduct any sort of search prior to that going on?” Carey answered: “I did perform a 

protective pat down of the subject.” We also know that, at the time of the frisk, Carey’s only 

concern was with the presence of an additional weapon, not the possibility that Jackson had 
No. 1-18-0927 

- 13 - 

contraband. Taking Carey’s suppression hearing testimony and trial testimony together, Carey 

frisked Jackson after asking about the tires but before questioning him about contraband or for 

consent to search the SUV. This accords with the trial court’s factual finding that police seized 

Jackson before he admitted to having marijuana on his person. 

¶ 43 At the point of physical touching, we also find the fourth Mendenhall factor present. Even 

if we could classify Carey’s accusatory conversation with Jackson about his tires as “casual,” the 

tone shifted when Carey started asking Jackson about contraband. People v. Kveton, 362 Ill. App. 

3d 822, 838 (2005) (finding seizure, in part, because officers accused defendant of possessing 

cannabis). 

¶ 44 In short, we find Jackson seized at the moment officers touched him. At that point two 

officers had approached him from opposite directions, blocking his ability to walk away or to 

access the driver’s side of his car, and had begun asking accusatory questions about his tires and 

possible contraband. This was not a consensual encounter.

¶ 45 Next, were the officers justified in conducting a Terry stop when they seized Jackson? We 

reiterate that under Terry, a police officer may briefly stop a person for temporary questioning if 

the officer reasonably believes that the person has committed or is about to commit a crime. 

Gherna, 203 Ill. 2d at 177 (officer must have “reasonable, articulable suspicion of criminal 

activity, and such suspicion amounts to more than a mere ‘hunch’ ”). To support a Terry stop, the 

officer “must be able to point to specific and articulable facts that, considered with the rational 

inferences therefrom, make the intrusion reasonable.” McMichaels, 2019 IL App (1st) 163053, 

¶ 22. In making this determination, courts consider the totality of the circumstances known to the 
No. 1-18-0927 

- 14 - 

officer and view those facts “ ‘from the perspective of a reasonable officer at the time of the stop.’ 

” Id. (quoting People v. Sanders, 2013 IL App (1st) 102696, ¶ 14). 

¶ 46 Considering the totality of the circumstances, we find the Terry stop invalid. The State 

argues that Jackson’s act of running to his car is evidence supporting reasonable suspicion that a 

crime had been or was about to be committed. We have serious problems with that proposition as 

a general matter. See In re D.L., 2017 IL App (1st) 171764, ¶¶ 4-6, 28 (flight, even in proximity 

to a recently committed crime, does not establish reasonable suspicion without more). But we do 

not have to rely on cases like D.L. because the State pulls the fact of Jackson’s running out of 

context and attempts to make it appear suspicious by isolating it. 

¶ 47 In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States Supreme Court held that 

“unprovoked flight” or “headlong flight” when a person sees police is the “consummate act of 

evasion.” Id. at 124. Here we find Jackson’s flight was not “unprovoked.” Carey testified that 

when he arrived in the parking lot Jackson was already walking to his car. Jackson did not notice 

Carey’s squad car until he was “walking across” the portion of the parking lot where Carey was 

driving. Only then did Jackson run the rest of the way to his SUV. We see no evidence that Jackson 

was reacting to Carey behind the wheel of a squad car; instead, from Carey’s testimony, Jackson 

wanted no more than to get out the way of traffic driving through the parking lot.

¶ 48 Jackson’s behavior is far cry from Wardlow, where the defendant was on the side of the 

road and ran away from the street after seeing a caravan of police cars drive by. Id. at 121. In 

Wardlow, nothing other than the mere presence of the police officers inspired the defendant’s 

flight. Here, it is unclear whether Jackson would have been able to tell that Carey was a police 

officer—his headlights were shining in Jackson’s direction and his emergency lights were not on.
No. 1-18-0927 

- 15 - 

Whether or not Jackson could tell he was walking in front of a squad car, he, unlike the defendant 

in Wardlow, had an utterly non-suspicious reason to get out of the way. Though an innocent 

explanation is not sufficient to defeat reasonable suspicion, People v. Rodriguez-Chavez, 405 Ill. 

App. 3d 872, 876 (2010), we do not find it reasonable to ascribe criminal motives, which is what 

Terry requires, to Jackson’s decision to get out of the way of an oncoming car. 

¶ 49 Carey testified that Jackson removed something from his waistband and put it in the 

backseat of his car. We can dispense with this factor quickly because Carey repeatedly testified 

that he could not see—at all—what the object Jackson put in his backseat was. The best he could 

do was to testify that, in his experience, people sometimes carry guns in their waistbands. We 

recognize as we described at the outset that we must evaluate the totality of the circumstances from 

the perspective of a reasonable officer. McMichaels, 2019 IL App (1st) 163053, ¶ 22. At the same 

time, Terry requires the officer to have reasonable, particularized suspicion as to the defendant 

and conduct in front of him or her. Terry, 392 U.S. at 27 (we do not credit an officer’s 

“unparticularized hunch.”). Carey testified to nothing about the circumstances that would suggest 

Jackson had a gun. There was no call about a person with a gun; there was no glint of metal; there 

was no bulge; Jackson was not holding on to anything in his waist area as he ran. Carey’s belief 

Jackson had a gun was at best a hunch, a sneaky speculation, nothing based on a set of articulable 

facts and circumstances. 

¶ 50 We arrive, then, at the factor the parties dispute the most. The State argues that Carey 

smelled marijuana on Jackson’s person before seizing Jackson and that the odor supported both 

the frisk and search of the SUV. Jackson responds that Carey did not smell marijuana until after 
No. 1-18-0927 

- 16 - 

the seizure had occurred and, in any event, the odor of a decriminalized drug does not provide 

reasonable suspicion or probable cause to search without a warrant. 

¶ 51 As to the odor, at trial Carey testified to smelling marijuana when he “initially made contact 

with [Jackson].” His testimony indicates he smelled marijuana either immediately after or 

contemporaneously with the frisk. Most importantly, Carey’s only stated justification for the frisk 

was to check for weapons, not drugs, suggesting he did not yet have concerns about the presence 

of narcotics. Carey also explained that he asked Jackson about “illegal narcotics” on his person, 

then told him he smelled marijuana leading to Jackson’s admission about smoking earlier in the 

day. After the suppression hearing, the trial court found that Jackson’s seizure occurred before he 

made any admissions. In other words, the best evidence we have—supported by the trial court’s 

findings—is that Carey smelled marijuana after the seizure began. The odor, therefore, cannot be 

used as justification for the seizure. Id. at 19 (officer’s action must be “justified at its inception”). 

¶ 52 When it comes to the totality of the circumstances used to justify Jackson’s seizure we are 

left with two facts: (i) running to get out of the way of parking lot traffic and (ii) putting an 

unknown object into the backseat of an SUV. Even taking these facts together, Carey had only a 

hunch that Jackson may have engaged in criminal behavior. As a hunch is insufficient to justify a 

Terry stop, we reverse the trial court’s denial of Jackson’s motion to suppress. Without Jackson’s 

admission or a search of the SUV, both of which came after and were products of the Terry stop, 

the State could not have proven Jackson guilty beyond a reasonable doubt. We, therefore, reverse 

his conviction outright. People v. Trisby, 2013 IL App (1st) 112552, ¶ 19. 

¶ 53 Reversed