June 13, 2001

No. 2--00--0442 

The defendant, Damaso Luna, was charged by indictment withunlawful possession with intent to deliver more than 15 grams ofcocaine (720 ILCS 570/401(a)(2)(A) (West 1998)). The defendantmoved to suppress the drug evidence as being unlawfully seized. The trial court granted the motion and denied the State's motion toreconsider. The State filed a certificate of impairment pursuantto Supreme Court Rule 604(a)(1) (188 Ill. 2d R. 604(a)(1)). Weaffirm.

The arresting officer and the defendant were the only twowitnesses to testify at the suppression hearing. Officer BrianMartin of the Loves Park police department testified that onFebruary 26, 1999, at about 7 p.m., he met with police sergeantLynde. Sergeant Lynde told him that he had received an anonymoustip that there was going to be a drug transaction behind the BrewHaus tavern in Loves Park. The drug transaction would involveeither a white mini-van, a black Pontiac, or a blue pickup truck. Sergeant Lynde also informed Officer Martin that the drugtransaction would involve a person named "Damaso."

Officer Martin participated in a stakeout of the tavern untilabout 7:17 p.m, when he saw a white mini-van leave the parking lot. Sergeant Lynde told Officer Martin to follow the vehicle and stopit if probable cause developed, that is, if he "observed a motorvehicle violation." Officer Martin followed the vehicle for aboutthree miles until he noticed that the light on the vehicle's rearlicense plate was not working. Officer Martin then stopped thevehicle. Prior to stopping the vehicle, Officer Martin had spokenwith Sergeant Lynde several times over his police radio.

After stopping the vehicle, Officer Martin walked up to thedriver of the vehicle, the defendant, and requested his driver'slicense and insurance card. After "immediately" receiving theseforms from the defendant, Officer Martin returned to his police carand began filling out a written warning form. Officer Martintestified that it usually takes him less than three minutes to talkto a motorist and to return to his car to write out a warning.Officer Martin additionally testified that, on the average, ittakes him about two to three minutes to fill out the writtenwarning form. Officer Martin listed 7:22 p.m. as the time of thetraffic stop. Officer Martin testified that he received thisprecise time from the dispatcher.

While he was writing out the warning, other officers,including Sergeant Lynde, arrived at the scene. Sergeant Lyndebrought with him a drug-sniffing dog. Officer Martin recognizedthe dog as one that had been used on other occasions to sniff outnarcotics and was trained for that purpose. Sergeant Lynde walkedthe dog around the vehicle, and the dog "alerted," indicating thepossible presence of narcotics in the vehicle.

Officer Martin testified that, after Sergeant Lynde informedhim of the "canine alert," he believed that he had probable causeto search the vehicle. Officer Martin then walked to thedefendant's vehicle and returned his driver's license and proof ofinsurance. Officer Martin also explained to the defendant thewarning citation. He then asked the defendant if he could searchthe vehicle. The defendant said "no" and attempted to pull away. Officer Martin directed the defendant to stop and told him to getout of the vehicle. He then observed the defendant place his handsin a Kleenex box. He told the defendant to take his hands out ofthe box. The defendant then got out of the vehicle.

Officer Martin testified that he searched the vehicle. In theKleenex box he found "one Baggie containing white powder residueand five Baggie corners containing a white powder." Based upon hisexperience and training, he believed the substance to be cocaine. The defendant was subsequently taken into custody.

On cross-examination, Officer Martin testified that, as he waswriting out the warning ticket, he did not know that other officerswould potentially be on their way to the scene. He also testifiedthat he had no idea that Sergeant Lynde would be arriving with adog. However, he later testified that he believed there was goingto be a follow-up investigation of the defendant and that otherofficers would be arriving at the scene of the traffic stop.

The defendant testified that he was stopped by Officer Martinon February 26, 1999. After the stop, he gave Officer Martin hisdriver's license and insurance card. This information was returnedto him about 25 minutes later. After another five minutes, OfficerMartin then asked him if he could search his vehicle. He did notgive Officer Martin permission to search, but he did get out of hisvehicle when he was asked to do so. On cross-examination, thedefendant testified that he did not see any other police vehiclesuntil he was ready to leave.

Following argument, the trial court granted the defendant'smotion to suppress evidence and quash arrest. The trial courtfirst explained that, based on People v. Campbell, 67 Ill. 2d 308(1977), there was no probable cause to search the defendant'svehicle because the State failed "to produce evidence concerningthe qualification of the dog used in this case." The trial courtfound that, under Campbell, the expertise of the dog was anecessary element to find probable cause to search the defendant'svehicle.

The trial court additionally found that, pursuant to People v.Brownlee, 186 Ill. 2d 501 (1999), suppression was warranted becauseOfficer Martin engaged in a "stall" at the scene of the stop. Inso ruling, the trial court noted that the defendant testified that 25 minutes elapsed between the time he was stopped and when he gothis driver's license back. The trial court also found that therewere credibility problems with Officer Martin's testimony. Thetrial court noted that Officer Martin had "precise times" forcertain things, such as when he received the initial radio message,when he began the stake out, and the time the defendant's vehiclewas stopped; however, he was only able to estimate the time whenSergeant Lynde arrived at the scene of the traffic stop. The trialcourt also noted that, on cross-examination, Officer Martintestified that he did not know other officers were on their way andthat Sergeant Lynde was coming with a dog. However, Officer Martinlater admitted that he believed there would be a follow-upinvestigation and that other officers were going to arrive at thescene.

The State subsequently filed a motion to reconsider. Indenying the motion, the trial court stated that the case came "downto an issue of credibility" and that Officer Martin's testimony wasnot credible. The trial court explained that Officer Martin losthis credibility when he stated that he did not know that otherofficers would be on their way to his traffic stop of thedefendant. The State thereafter filed a certificate of impairmentpursuant to Rule 604(a)(1).

On appeal, the State argues that the trial court erred ingranting the defendant's motion to suppress. Specifically, theState contends that the trial court erred in finding (1) that thequalifications of the drug-sniffing dog were not established; and(2) that Officer Martin stalled after stopping the defendant untilother police officers could arrive at the scene with a drug-sniffing dog. Because we believe the trial court's finding thatOfficer Martin stalled after stopping the defendant is dispositiveof this appeal, we will address that issue first.

On a motion to suppress evidence, the defendant has the burdenof showing that the search and seizure were unlawful. 725 ILCS5/114--12(b) (West 1998); People v. Janis, 139 Ill. 2d 300, 308(1990). However, once the defendant makes a prima facie showingthat the search and seizure were unlawful, the burden shifts to theState to come forward with evidence justifying the intrusion. People v. Graf, 265 Ill. App. 3d 746, 750 (1994).

Here, there is no dispute that the defendant was properlystopped for not having a working light over his rear license plate. A usual traffic stop, such as this one, is considered a Terry stoprather than a formal arrest. People v. Stewart, 242 Ill. App. 3d599, 605 (1993). A Terry stop contemplates a brief intrusion, asminimal as possible, to verify information or to ascertain whethercriminal activities have in fact taken place. People v. Frazier,248 Ill. App. 3d 6, 14 (1993). The investigative intention must betemporary and last no longer than is necessary to effectuate thepurpose of the stop. People v. Brownlee, 186 Ill. 2d 501, 519(1999).

When a police officer stops a vehicle for a minor trafficviolation, the officer may briefly detain the driver to request avalid driver's license. People v. Jennings, 185 Ill. App. 3d 164,169 (1989). If no further suspicion is aroused in the officerfollowing these initial inquiries, the traffic stop may go nofurther and the individual should no longer be detained. Brownlee,186 Ill. 2d at 520-21. An officer may not stall at the scene of atraffic stop until a drug-sniffing dog arrives and creates probablecause to conduct a search of a vehicle. People v. Koutsakis, 272Ill. App. 3d 159, 163 (1995).

Here, the only evidence the State presented as to thecircumstances of the stop was through Officer Martin's testimony. However, the trial court found that Officer Martin's testimony wasnot credible. The trial court explained that (1) there werecontradictions in his testimony; (2) he testified only generally asto the time between the traffic stop and the search, althoughprecisely about other events; and (3) his statement that he did notknow that other police officers would be arriving at the scene ofthe traffic stop was not believable. The State argues that thetrial court's credibility determination of Officer Martin wasmanifestly erroneous.

In ruling on a motion to suppress, the trial court is bestsuited to assess the credibility of the witnesses and weigh theirtestimony. People v. Smith, 266 Ill. App. 3d 362, 364 (1994). Thetrial court's ruling is entitled to great deference. Smith, 266Ill. App. 3d at 364. Accordingly, the trial court's determinationof factual matters in a hearing on a motion to suppress will not bedisturbed unless it is manifestly erroneous. People v. Free, 94Ill. 2d 378, 401 (1983).

Based on our review of the record, we cannot say that thetrial court's credibility determination of Officer Martin wasmanifestly erroneous. The record supports the trial court'sfinding that Officer Martin testified fairly specifically forcertain events prior to the search of the defendant's vehicle butonly generally as to when Sergeant Lynde arrived and when thesearch was conducted. The record also reveals an inconsistency inOfficer Martin's testimony. Officer Martin testified at one pointthat he did not know that other officers were potentially on theirway to the scene of the traffic stop. Shortly thereafter, however,he testified that he believed other officers would be arriving atthe scene. In light of the fact that Officer Martin had been partof a police stakeout with multiple officers for the express purposeof apprehending the defendant, we also agree with the trial courtregarding the implausibility of Officer Martin's statement that hedid not know that other officers were on their way to the scene ofthe traffic stop. As the trial court's credibility determinationof Officer Martin was not manifestly erroneous, we cannot say thetrial court erred in granting the motion to suppress.

Based on our resolution of this issue, we need not addresswhether the trial court erred in finding that the qualifications ofthe drug-sniffing dog had not been established.

For the foregoing reasons, the judgment of the circuit courtof Winnebago County is affirmed.

Affirmed.

McLAREN and GROMETER, JJ., concur.