NO. 4-02-0627

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE MYERSCOUGH delivered the opinion of the court:

Following a stipulated bench trial in May 2002, the trialcourt found defendant, Adam J. Heather, guilty of unlawful possessionof cannabis. 720 ILCS 550/4(e) (West 2000). The trial court sentenced defendant to 24 months' imprisonment with 3 days' credit fortime served. Defendant appeals the court's denial of his motion tosuppress, arguing the deputy exceeded the scope of his authority byquestioning the driver of the vehicle about possible criminal activity after the traffic stop was completed. We reverse the court'sdenial of defendant's motion to suppress and vacate the judgment ofconviction.
 

I. BACKGROUND

At the hearing on the motion to suppress in December 2001,deputy sheriff Michael Scott Hainline testified to the following. OnAugust 25, 2000, Hainline was assigned to routine traffic patrol inBrown County. As a significant part of his training for trafficduties, he testified that he underwent drug interdiction training. Hainline testified that this training taught him to go "beyond theinitial traffic stop" and to ask different questions and to look fordifferent answers or nonresponsiveness, to observe the body languageof passengers, to look for movement within the passenger compartment,and how to identify different types of drugs and drug paraphernalia. In addition to teaching him to identify situations in which a furthersearch may be warranted, the classes taught him techniques to effectuate that search in a manner that would reduce the level of constitutional scrutiny.

At 4 a.m. on August 25, as Hainline was driving eastboundalong U.S. Route 24, he noticed in his side mirror that defendant'swestbound car that he had just passed did not have a working registration light. Hainline turned his car around, switching from theeastbound lane to the westbound lane, and upon confirming that thecar did not have a working registration light, pulled the car over. As he initiated his squad car's overhead lights, "take-down" lights,and spotlights, Hainline observed movement in the vehicle and notedthat it appeared that there were three subjects in the vehicle. Hainline admitted the movement was not unusual.

After stopping the car, Hainline determined Lucas Robertswas the driver. Hainline testified that he approached the vehicle onthe passenger side and that defendant, the passenger in the frontseat, initially looked surprised that he had come up on his sideinstead of on the driver's side. Hainline then introduced himself,stated the reason for the stop, and asked Roberts, the driver of thecar, for his license and proof of insurance. Hainline also asked foridentification from the defendant and Walter Bartz, the passenger inthe rear. Hainline testified that defendant did not directly look athim, except to answer questions about his identity and birth date. Hainline characterized this behavior as suspicious under the "no looktest," saying that most passengers will look at the officer just as ashow of respect and that it is suspicious if a passenger tries toignore the officer or pretend that he is not there. Conversely,Hainline testified that Bartz, the passenger in the rear seat, wasoverly friendly, which also was suspicious behavior. As he wastalking to the vehicle's occupants, Hainline smelled a strong odor,although he could not identify the scent, but it could have beenfood. Hainline testified that a strong odor, even if the smell couldnot be identified, was often indicative of the masking of drugs ordrug use in the car.

Hainline took the information he received and returned tohis patrol car to check that Roberts' driver's license was valid andto run a warrant check on defendant and Bartz. Hainline found thatboth defendant and Bartz had criminal histories, but Roberts hadnone. Additionally, Hainline testified that he recalled previouslyreceiving information from the West Central Illinois Drug Task Forcethat defendant was involved in illegal drug activity. However,Roberts had a valid driver's license and proof of insurance, and nowarrants were outstanding for defendant and Bartz, so Hainline exitedhis patrol car and approached the vehicle, this time from thedriver's side. Hainline then asked Roberts to exit his car and tojoin him at the rear of the car. Roberts complied, and Hainlinetalked briefly with him while he wrote out a warning ticket. Hainline asked Roberts where they were coming from and what they weredoing. Roberts answered that they had been at a friend's house inBeardstown. When asked the name of the person they had visited,Roberts did not answer. Hainline then issued the warning ticket toRoberts and returned his insurance card and driver's license,informing him that he was free to go.

There is some dispute as to whether Roberts reentered thevehicle and was about to leave or whether he was simply returning tothe vehicle. Roberts testified that after Hainline told him he wasfree to leave, Roberts got back into his vehicle and was preparing toleave when Hainline approached his car window and started questioninghim again. According to Hainline, after Roberts received his warningticket, driver's license, and insurance card, Roberts turned to walkback toward his vehicle. As Roberts was walking away, Hainline askedhim if they had any open alcohol in the vehicle. Roberts replied inthe negative. Hainline asked him if there were any loaded guns inthe car. Roberts answered no. Hainline asked if there were anyillegal drugs in the car. Roberts testified he said no. However,Hainline testified that Roberts did not provide an answer, butinstead looked down and away from him. Hainline then asked forpermission to search the vehicle. Hainline denied telling Robertsthat he could keep them there until they consented to a search oruntil a canine unit arrived. However, Hainline admitted that he mayhave said other units, including perhaps a canine unit, were in thearea and could be on their way. Hainline testified that he did this,not as an intimidation, but out of concern for his own safety, as hewas outnumbered three to one. Hainline further testified that thereason he waited to question Roberts about the contents of hisvehicle until after he had returned his license and told him he wasfree to go was to prevent Roberts from saying at trial that he didnot feel he was free to leave at that moment.

After Hainline received consent to search the car, heordered the passengers out and frisked each of them, finding noweapons or contraband. He then opened the passenger-side door andbegan a vehicle search, which resulted in his finding a "one-hitter"pipe and a large bag of plant material, which later field testedpositive for cannabis.

Roberts testified that he did not initially consent, butafter Hainline told Roberts that he could keep them there until theyconsented or he brought in a canine to search, Roberts eventuallyconsented.

Defendant testified that Hainline returned Roberts'driver's license and insurance card and told Roberts he was free toleave. Defendant stated, however, that when Hainline askedpermission to search the vehicle, Roberts said no. Defendant furtherstated that Hainline told Roberts Hainline could detain the car untila canine unit arrived. On cross-examination, defendant admitted thathe was not standing near Roberts while Hainline questioned him;rather, defendant remained in the car during the questioning.

The trial court denied defendant's motion to suppress,finding that (1) the initial traffic stop was permissible, (2) areasonable person in Roberts' position would believe he was free toleave, (3) the detention was not improperly prolonged, and (4)Hainline had reasonable suspicion to ask for consent to search.

Following a stipulated bench trial, defendant was foundguilty of unlawful possession of cannabis. Defendant filed aposttrial motion, arguing the trial court erred in denying his motionto suppress. On July 29, 2002, the court denied defendant'sposttrial motion and sentenced defendant to 24 months' imprisonment. This appeal followed.

II. ANALYSIS

A. Standard of Review

"When a trial court's ruling on a motion to suppressinvolves factual determinations or credibility assessments, thecourt's ruling will not be disturbed on review unless it ismanifestly erroneous." People v. Gonzalez, 204 Ill. 2d 220, 223, 789N.E.2d 260, 263 (2003). However, where the facts and witnesscredibility are not in dispute, the ultimate question posed by thelegal challenge to the court's ruling is reviewed de novo. Gonzalez,204 Ill. 2d at 223, 789 N.E.2d at 263. In the present case, thecourt found a reasonable person in defendant's position would havebelieved he was free to leave, and defendant does not challenge thecourt's factual determinations. Therefore, we accept the court'sfindings of fact, and we review de novo the issue of whetherHainline's continued detention was appropriate.

B. Denial of Motion To Suppress

Defendant argues the trial court erred in denyinghis motion to quash arrest and suppress evidence, contendingHainline did not have reasonable suspicion to continuequestioning the driver after the purpose of the stopconcluded. We agree.

In People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219(2003), the Illinois Supreme Court addressed the parameters withinwhich a police officer must operate when a motorist is stopped for atraffic offense. Relying on Gonzalez, the supreme court stated thata vehicle stop constitutes a seizure of the vehicle's occupants andis, therefore, subject to the fourth amendment's requirement ofreasonableness. Harris, 207 Ill. 2d at 522, 802 N.E.2d at 224,citing Gonzalez, 204 Ill. 2d at 226, 789 N.E.2d at 266. Indetermining the reasonableness of a traffic stop, courts are guidedby the supreme court's observation that the usual traffic stop ismore analogous to a Terry investigative stop than to a formal arrest. Harris, 207 Ill. 2d at 522, 802 N.E.2d at 224-25, citing Gonzalez,204 Ill. 2d at 226, 789 N.E.2d at 266. Therefore, as a general rule,a fourth amendment challenge to the reasonableness of a traffic stopis analyzed under Terry principles.

In accordance with Terry, a police officer may brieflydetain an individual for questioning, absent probable cause toarrest, if the officer has a reasonable, articulable suspicion ofcriminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d889, 906, 88 S. Ct. 1868, 1880 (1968). However, if a detentionexceeds what is permissible as a Terry investigative stop, a laterconsent to search may be found to be tainted by the illegality. People v. Brownlee, 186 Ill. 2d 501, 519, 713 N.E.2d 556, 566 (1999).

A Terry analysis includes a dual inquiry: (1) whether theofficer's action was justified at its inception, and (2) whether itwas reasonably related in scope to the circumstances that justifiedthe interference in the first place. Harris, 207 Ill. 2d at 522-23,802 N.E.2d at 225, citing Gonzalez, 204 Ill. 2d at 228, 789 N.E.2d at266, quoting Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct.at 1879. With respect to the first inquiry, defendant concedes thatthe vehicle stop in this case was justified at its inception. Withrespect to the second inquiry, we must consider whether Hainline'squestioning of Roberts was reasonably related in scope to thecircumstances that justified the stop in the first place. If so, nofourth amendment violation occurs. Harris, 207 Ill. 2d at 523, 802N.E.2d at 225, quoting Gonzalez, 204 Ill. 2d at 235, 789 N.E.2d at270. If the questioning was not reasonably related to the purpose ofthe stop, we must consider whether the law enforcement officer had areasonable, articulable suspicion that would justify the questioning. If the questioning is so justified, no fourth amendment violationoccurs. Harris, 207 Ill. 2d at 523, 802 N.E.2d at 225, quotingGonzalez, 204 Ill. 2d at 235, 789 N.E.2d at 270. Absent a reasonableconnection to the purpose of the stop or a reasonable, articulablesuspicion, "'we must consider whether, in light of all thecircumstances and common sense, the question impermissibly prolongedthe detention or changed the fundamental nature of the stop.'" Harris, 207 Ill. 2d at 524, 802 N.E.2d at 225, quoting Gonzalez, 204Ill. 2d at 235, 789 N.E.2d at 270.

In Harris, the supreme court clarified its holding inGonzalez, finding a passenger warrant check unreasonably prolonged atraffic stop. In Harris, the court found that the warrant check wasnot directly related to the initial justification for the trafficstop, and the warrant check was not supported by a reasonable,articulable suspicion that defendant committed or was about to commita crime. Therefore, Harris found the warrant check changed thefundamental nature of the stop. Harris, 207 Ill. 2d at 528, 802N.E.2d at 228.

The First District recently applied the Harris reasoningin People v. Torres, 347 Ill. App. 3d 252, 265-66, 807 N.E.2d 654,666 (2004), and found the trial court erred in denying thedefendant's motion to suppress. In Torres, two police officersapproached both sides of the vehicle after witnessing what theybelieved to be a domestic altercation. While Officer Kurpiel askedthe female occupant if she was alright, his partner asked thedefendant to exit the vehicle, where he was asked his name. Torres,347 Ill. App. 3d at 254, 807 N.E.2d at 657. The female passengertold Kurpiel there was no problem and she was not in danger. TheTorres court stated that at this point, the purpose for the stop wasover. However, the officers continued to hold them and ran a warrantcheck on the defendant, learning he had an outstanding warrant fordriving under the influence. Torres, 347 Ill. App. 3d at 254, 807N.E.2d at 657.

Applying Harris, the First District found the warrantcheck on the defendant converted the initial stop from a routine stopinto an impermissible investigation of past wrongdoing. Torres, 347Ill. App. 3d at 265, 807 N.E.2d at 666. The court emphasized thatwhen the officers ran the warrant check on the defendant, they knewthat the female passenger was not in danger, and therefore, the onlyreason for the officers' stop was resolved. Further, the officershad no additional suspicion of criminal activity, and therefore nojustification warranted the prolonged detention.

Applying Harris to the facts in the instant case, we findthat under these circumstances, Hainline did not have reasonablesuspicion to detain defendant as a matter of law after the trafficstop was complete, and therefore his continued questioning of Robertsand his warrant check on defendant changed the fundamental nature ofthe stop into an impermissible investigation of past wrongdoing. We,therefore, reverse.

At issue in the instant case is whether the trial courterred in denying defendant's motion to suppress, finding (1) areasonable person in Roberts' position would have believed he wasfree to leave after the warning citation was issued and Roberts'driver's license and insurance card was returned, and (2) defendantwas not unconstitutionally seized when Hainline questioned Robertsafter the traffic stop was complete.

Both parties acknowledge that the traffic stop wascomplete once Hainline returned Roberts' driver's license andinsurance card and handed Roberts the warning citation. Defendantargues, however, that Hainline's later questions a second or twoafter the traffic stop was complete would make a reasonable personbelieve that the traffic stop was not complete and that he was notfree to leave. We agree with defendant.

As in Harris, the check here converted the stop from atraffic stop into an investigation of past wrongdoing by not justRoberts but also his passengers, defendant and Bartz. Hainline'slater warrant check on defendant, Roberts, and Bartz was not basedupon a reasonable suspicion. Nothing indicated any crime--only anundistinguishable smell, possibly of food, along with a friendlypassenger and an unfriendly passenger. Upon request foridentification of everyone in the car, Hainline recognized defendantas someone the West Central Illinois Drug Task Force had indicatedwas involved in illegal drug activity. Recent supreme court rulings,however, suggest that use of this rumored information by an officeris similar to further investigation of past wrongdoing. These factsare not enough to establish a reasonable, articulable suspicion ofcriminal activity to support a warrant check on defendant, Roberts,and Bartz. Therefore, the warrant check impermissibly prolonged thedetention and changed the fundamental nature of the stop. Moreover,had Hainline allowed Roberts to leave at the completion of thetraffic stop, Roberts would never have been asked for consent tosearch his vehicle, and the drugs would not have been discovered.

For these reasons, we are constrained to follow Harris. However, we feel compelled to recognize Justice Fitzgerald's commentsin the dissent.

"Conducting a non[]intrusive computerized checkto determine if a judge has commanded thearrest of the passenger cannot reasonably bedeemed a 'general inquisition.' The majority'sconclusion to the contrary effectively createsa constitutional right to avoid justice.

***

Under the court's present analysis, awarrant check will only comport with Terry'sscope requirement if it is either related tothe purpose of the stop, or supported by areasonable, articulable suspicion of criminalconduct. A warrant check, however, willrarely, if ever, relate to the purpose of aroutine traffic stop--issuing a warning orcitation for an observed traffic violation. Nor will facts necessarily develop during aroutine stop providing a reasonable,articulable suspicion of criminal conduct. Although the present case involves a passenger,rather than the driver, the same Terryprinciples that govern the reasonableness ofthe officer's encounter with the passenger,also govern the reasonableness of the officer'sencounter with the driver. Accordingly, underthe majority's opinion, a driver can nowlegitimately argue that a warrant check'change[s] the fundamental nature of thetraffic stop' by converting the stop 'into aninvestigation of past wrongdoing.'" Harris,207 Ill. 2d at 538-39, 802 N.E.2d at 233-34(Fitzgerald, J., dissenting, joined by Thomasand Garman, JJ.), quoting Harris, 207 Ill. 2dat 528, 802 N.E.2d at 228.

Nonetheless, we must follow the supreme court's majority in Harris. Therefore, we reverse the trial court's denial of the motion tosuppress and vacate defendant's conviction.

III. CONCLUSION

For the reasons set forth above, we reverse the trialcourt's denial of defendant's motion to suppress and vacate thejudgment of conviction.

Reversed and vacated.

APPLETON, J., concurs.

TURNER, J., dissents.

In this case, I would find Deputy Hainline had areasonable, articulable suspicion of criminal activity to support awarrant check on the passengers. Further, I would find a reasonableperson would believe the traffic stop was complete and he was free toleave, thereby causing any further conversation to amount to aconsensual encounter. Therefore, I respectfully dissent.

The majority concludes the facts here are not enough toestablish a reasonable, articulable suspicion of criminal activity tosupport a warrant check on the passengers. I disagree. DeputyHainline testified his suspicion that "something criminal" was goingon was based on (1) movement of the occupants in the vehicle when hestopped the car, (2) defendant's staring straight ahead without eyecontact with the officer, (3) the strong smell of an unidentifiedodor emanating from the car, and (4) his knowledge of defendant'sinvolvement in illegal drug activity. While any one of these factorsconsidered separately may not have been sufficient to establishreasonable suspicion, the trial court considers the totality of thecircumstances in making its decision. People v. Ortiz, 317 Ill. App.3d 212, 220, 738 N.E.2d 1011, 1018 (2000). Based on the totality ofthe facts, Hainline had reasonable suspicion based upon specific,articulable reasons to run a warrant check on the passengers. SeePeople v. Perez, 288 Ill. App. 3d 1037, 1045, 681 N.E.2d 173, 178(1997) ("Even where there may be an innocent explanation for eachindividual factor considered separately, the factors viewed incombination may constitute enough reasonable suspicion to warrantfurther detention in a given case").

Although I agree with the majority's comments regarding Justice Fitzgerald's well-reasoned dissent in Harris, I would findthe supreme court's ruling in Harris does not require suppression ofthe evidence in this case. As Deputy Hainline had a reasonablearticulable suspicion of criminal conduct, his warrant check on thepassengers was reasonable and proper under the circumstances.

Moreover, I would find Deputy Hainline's questions to thedriver after the stop was complete amounted to a consensualencounter. In the trial court and now on appeal, defendantargues the encounter was not a consensual conversation andrelies on our supreme court's ruling in People v. Brownlee,186 Ill. 2d 501, 713 N.E.2d 556 (1999). In that case, policeofficers stopped a vehicle and approached the car on bothsides. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559. Theofficers obtained the identities of the occupants and checkedfor and found no outstanding warrants. Brownlee, 186 Ill. 2dat 506, 713 N.E.2d at 559. The officers decided not to issueany citations, but they did agree to ask the driver forpermission to search the car. Brownlee, 186 Ill. 2d at 506,713 N.E.2d at 559. One officer returned to the driver hislicense and insurance card and explained that no citationswould be issued. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at559. Thereafter, the officers stood near the car's doors forabout two minutes and said nothing. Brownlee, 186 Ill. 2d at520, 713 N.E.2d at 565-66. After the pause, the officer askedthe driver to search the vehicle, and the subsequent searchrevealed controlled substances. Brownlee, 186 Ill. 2d at 506-07, 713 N.E.2d at 559-60.

The supreme court found the traffic stop hadconcluded when one officer returned the license and insurancecard to the driver and explained that no citations would beissued. Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565. However, the officer's two-minute pause without sayinganything to the driver constituted a show of authority, whichwould lead a reasonable person to conclude he or she was notfree to leave without the officers "soon be[ing] in hotpursuit." Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 566.

In the case sub judice, the purpose of the stop wascomplete when Deputy Hainline returned to the driver hislicense and insurance card, issued a warning ticket for thetraffic violation, and told him he was free to leave. DeputyHainline prolonged the stop by asking the driver whether anyopen alcohol, loaded guns, or illegal drugs were in the carand requesting permission to search the vehicle. This case isdistinguishable from Brownlee, however. Here, the trial courtfound that in considering all the circumstances a person inthe driver's position would have believed he was free toleave. Deputy Hainline returned the driver's documents, toldhim he was free to leave, and the driver began to walk away,in contrast to the officers in Brownlee, who flanked thedriver's car without saying anything for two minutes. Theofficer's actions here did not constitute a show of authoritysuch that a reasonable person would not feel free to leave.

In discussing the United States Supreme Court'sdecision in Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347,117 S. Ct. 417 (1996), the court in Brownlee noted "that anofficer is always free to request permission to search." Brownlee, 186 Ill. 2d at 515, 713 N.E.2d at 563. The court,however, found the problem in Brownlee was not that theofficers requested permission to search the car, but "that theofficers unconstitutionally detained the car and its occupantsbefore requesting permission to search the car, and after theconclusion of the traffic stop." (Emphasis in original.) Brownlee, 186 Ill. 2d at 515, 713 N.E.2d at 563. Here, DeputyHainline did not unlawfully detain the driver before herequested permission to search the vehicle.

The questions posed by Deputy Hainline amounted to aconsensual encounter. "[L]aw enforcement officers do notviolate the [f]ourth [a]mendment by merely approaching anindividual on the street or in another public place, by askinghim if he is willing to answer some questions, by puttingquestions to him if the person is willing to listen, or byoffering in evidence in a criminal prosecution his voluntaryanswers to such questions." Florida v. Royer, 460 U.S. 491,497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983). Moreover, the person to whom the questions are asked mayrefuse to answer and may proceed on his way. Royer, 460 U.S.at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.

When Deputy Hainline asked the driver whether he hadany open alcohol, loaded weapons, or illegal drugs in the car,he could have refused to answer, returned to the car, fastenedhis seat belt, and driven away. Moreover, the questions werenot of a nature that a person would feel his answer wasrequired based on a show of authority. See People v. Gherna,203 Ill. 2d 165, 179, 784 N.E.2d 799, 807 (2003) ("[A]consensual encounter will lose its consensual nature if lawenforcement officers convey a message, by means of physicalforce or show of authority, that induces the individual tocooperate."). Hainline's questions did not violate thedriver's fourth amendment rights, and the trial courtcorrectly denied the motion to suppress.

It should be noted that the Illinois Supreme Courthas steadfastly held that an unreasonable search and seizureanalysis is the same whether the violation is alleged to haveoccurred under the fourth amendment (U.S. Const., amend. IV)or article I, section 6, of the Illinois Constitution (Ill.Const. 1970, art. I,