NO. 4-02-0613

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, Lucas T. Roberts, guilty of unlawful possession of cannabis with intent to deliver. 720 ILCS 550/5(c) (West2000). The trial court sentenced defendant to 24 months' probation. Defendant appeals the trial court's denial of his motion to suppress,arguing the deputy exceeded the scope of his authority by questioningdefendant about possible criminal activity after the traffic stop wascompleted. We reverse the court's denial of defendant's motion tosuppress and vacate the judgment of conviction.

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 had undergone drug interdiction training. Hainline testified that this training taught him to go "beyondthe initial traffic stop" and to ask different questions and to lookfor different answers or nonresponsiveness, to observe the bodylanguage of passengers, to look for movement within the passengercompartment, and how to identify different types of drugs and drugparaphernalia. In addition to teaching him to identify situations inwhich a further search may be warranted, the classes taught himtechniques to effectuate that search in a manner that would reducethe level of constitutional scrutiny.

At 4 a.m. on August 25, as Hainline was driving eastboundalong US 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 approached the vehicle onthe passenger side. Hainline testified that the passenger in thefront seat initially looked surprised that he had come up on hisright instead of on the driver's side. Hainline then introducedhimself, stated the reason for the stop, and asked the driver of thecar for his license and proof of insurance. He also asked foridentification from the passengers, Adam Heather in the front seatand Walter Bartz in the rear. Hainline testified that Heather didnot directly look at him, except to answer questions about hisidentity and birth date, but instead looked straight ahead when hewas not speaking. Hainline characterized this behavior as suspiciousunder the "no look test," saying that most passengers will look atthe officer just as a show of respect and that it is suspicious if apassenger tries to ignore the officer or pretend that he is notthere. Conversely, Hainline testified that Bartz, the passenger inthe rear seat, was overly friendly, which also was suspicious behavior. As he was talking to the vehicle's occupants, Hainline smelleda strong odor, although he could not identify the scent, but it couldhave been food. Hainline testified that a strong odor, even if thesmell could not be identified, was often indicative of the masking ofdrugs or drug use in the car.

Hainline took the information he had received and returnedto his patrol car to check that defendant's driver's license wasvalid and to run a warrant check on everyone in the vehicle. Hefound that both Heather and Bartz had criminal histories, but defendant had none. Additionally, Hainline testified that he had previously received information from the West Central Illinois Drug TaskForce that Heather was involved in illegal drug activity. However,defendant had a valid driver's license and proof of insurance, andthere were no outstanding warrants for any occupant, so Hainlineexited his patrol car and approached the vehicle, this time from thedriver's side. Hainline then asked defendant to exit his car and tojoin him at the rear of the car. Defendant complied, and Hainlinetalked briefly with him while he wrote out a warning ticket. Hainline asked him where they were coming from and what they weredoing. Defendant answered that they had been at a friend's house inBeardstown. When asked the name of the person they had visited,defendant did not answer. Hainline then issued the warning ticket todefendant and returned his insurance card and driver's license,informing him that he was free to go.

There is some dispute as to whether defendant reenteredthe vehicle and was about to leave or whether he was simply returningto the vehicle. After he had received his warning ticket, driver'slicense, and insurance card, Hainline asked him if they had any openalcohol in the vehicle. Defendant replied in the negative. Hainlineasked him if there were any loaded guns in the car. Defendantanswered no. Hainline asked if there were any illegal drugs in thecar. Defendant testified he said no. However, Hainline testifiedthat defendant did not provide an answer, but instead looked down andaway from him. Hainline then asked for permission to search thevehicle. Hainline testified that the reason he waited to questiondefendant about the contents of his vehicle until after he hadreturned his license and told him he was free to go was to preventdefendant from saying at trial that he did not feel he was free toleave at that moment.

Defendant testified that he did not initially consent, butafter Hainline told defendant that he could keep them there untilthey consented or he brought in a canine to search, defendanteventually consented. Hainline denied telling them that he couldkeep them there until they consented. However, Hainline admittedthat he may have said other units, including perhaps a canine unit,were in the area and could be on their way. Hainline testified thathe did this, not as an intimidation, but out of concern for his ownsafety, as he was outnumbered three to one.

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.

The trial court denied defendant's motion to suppress,finding that (1) the initial traffic stop was permissible, (2) areasonable person in defendant's position would believe he was freeto leave, (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 with intent to deliver. Defendant filed a posttrial motion, arguing the trial court erred indenying his motion to suppress. On July 26, 2002, the court denieddefendant's posttrial motion and sentenced defendant to 24 months'probation. This appeal followed.

II. ANALYSIS

A. Standard(s) 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 trial court's ruling is reviewed de novo. Gonzalez, 204 Ill. 2d at 223, 789 N.E.2d at 263. In the presentcase, the trial court found a reasonable person in defendant'sposition would have believed he was free to leave. The State arguesthis is a question of fact, and, therefore, it will only be reversedif it is against the manifest weight of the evidence. The Statecorrectly cites People v. Smith, 266 Ill. App. 3d 362, 367, 640N.E.2d 647, 650 (1994), for the proposition that "[a] reasonableperson may voluntarily comply with an officer's mere request, butwould not 'feel free to decline' an officer's order. As a result,the trial court must decide as a question of fact whether areasonable person in the defendant's position would have felt free todecline the officer's request in a given factual situation." However, in the instant case, all parties concede that whetherHainline had a reasonable suspicion to temporarily detain defendantis a question of law reviewed de novo. Only the underlying facts andwitness credibility are subject to the manifestly erroneous standardof review. We, therefore, accept the trial court's finding of facts,which follow, because they were not manifestly erroneous.

"The officer had given [defendant] backall of his documentation, told him he was freeto go, and then said, [']by the way, can I[search the car?'] And not any great amount oftime had passed when that had occurred, just amatter of less than minutes, unlike theBrownlee case. And unlike the Brownlee case,[defendant] did not say to the officer, [']do Ihave a choice?['] And the officer had reasonto ask for a consent to search, and the reasonwas that, perhaps not totally objectivestandards of eye contact, movement,unidentifiable odor, which probably could havebeen sweat socks, the name of the passenger whohad a criminal record and whose name had beenmade known to the officer by members of theDrug Task Force, and the driver's inability toprovide the name of friends that werevisiting."

B. Denial of Motion To Suppress

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 defendant 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, 807 N.E.2d 654, 666(2004), and found the trial court erred in denying the defendant'smotion to suppress. In Torres, two police officers approached bothsides of the vehicle after witnessing what they believed to be adomestic altercation. While Officer Kurpiel asked the femaleoccupant if she was alright, his partner asked the defendant to exitthe vehicle, where he was asked his name. Torres, 347 Ill. App. 3dat 254, 807 N.E.2d at 657. The female passenger told Kurpiel therewas no problem and she was not in danger. The Torres court statedthat at this point, the purpose for the stop was over. However, theofficers continued to hold them and ran a warrant check on thedefendant, learning he had an outstanding warrant for driving underthe influence. Torres, 347 Ill. App. 3d at 254, 807 N.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, a reasonable person would not havefelt free to leave, and Hainline did not have reasonable suspicion todetain defendant as a matter of law. 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 defendant's position would have believed he wasfree to leave after the warning citation was issued and defendant'sdriver's license and insurance card were returned and (2) defendantwas not unconstitutionally seized when Hainline questioned defendantafter the traffic stop was complete.

Both parties acknowledge that the traffic stop wascomplete once Hainline returned defendant's driver's license andinsurance card and handed defendant 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 justdefendant but also his passengers. While Hainline's request foridentification from defendant and his passengers was faciallyinnocuous (Gonzalez, 204 Ill. 2d at 236, 789 N.E.2d at 270),Hainline's later warrant check was not based upon a reasonablesuspicion. Nothing indicated any crime--only an indistinguishablesmell, a friendly passenger, and an unfriendly passenger. Uponrequest for identification of everyone in the car, Hainlinerecognized Heather as someone the West Central Illinois Drug TaskForce had indicated was involved in illegal drug activity. Thesefacts, even in combination with the strong unidentifiable odor, arenot enough to establish a reasonable, articulable suspicion ofcriminal activity to support a warrant check on the passengers. Therefore, the warrant check impermissibly prolonged the detentionand changed the fundamental nature of the stop.

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.' [Citation.]" Harris, 207 Ill. 2d at 538-39, 802 N.E.2d at233-34 (Fitzgerald, J., dissenting, joined byThomas and Garman, JJ.).

While we agree with Justice Knecht's special concurrence, wenonetheless 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.

KNECHT, P.J., and COOK, J., specially concur separately.

I concur in the result and commend Justice Myerscough forciting Justice Fitzgerald's comments in dissent to Harris. I writeseparately because I believe the decision in Harris is not requiredby the fourth amendment.

Harris is an invitation for officers to jot down thelicense holder's name or memorize it and run a warrant check afterthe traffic stop has concluded and the vehicle has departed. Doesthe conduct of the officer after the vehicle departs fundamentallychange the nature of the stop that occurred but has concluded? Willa later rule prohibit the officer from writing down the occupant'sname and checking it later? Will the officer who has a photographicmemory have the advantage because he need not write down pertinentdetails but simply memorize them for later use?

A passenger warrant check is an effective means oflocating individuals for whom a judge has issued a warrant. This isnot an intrusion. An officer who does not do a warrant check ofpassengers of a vehicle lawfully stopped at 4 a.m. on a summer nightin the circumstances present here is not doing his or her job. Acursory review of appellate cases shows warrant checks on passengersare effective, and those same cases do not show officers abusingtheir authority, prolonging traffic stops interminably, or attemptingto manufacture evidence to justify their conduct.

Common sense suggests brief information gathering using acomputer does not prolong the detention or change the nature of thestop. The officer was not seeking evidence of wrongdoing--theofficer was checking information. The officer's candor about histraining in techniques to conduct a search of a vehicle so as toreduce the level of constitutional scrutiny should not make his everyquestion or action suspicious or impermissible.

It is now permissible to search and even dismantle a car'sgas tank as part of drug and other smuggling interdiction at thenation's borders. This is so even absent any particular reason tosuspect that car. It can be done at random. U.S. v. Flores-Montano,541 U.S. ___, ___, 158 L. Ed. 2d 311, 317-18, 124 S. Ct. 1582, 1587(2004). Such a ruling permits trampling the rights of innocenttravelers. I do not endorse the ruling, but it defies logic thatsuch a search would be permissible, and yet an officer is forbiddenfrom running the license and identification information of apassenger in a lawfully stopped vehicle.

There is a difference between asking a driver foridentification and asking a passenger for identification. A driveris required to have a current license as a condition of operating avehicle. Asking a driver for his license is reasonably related tothe initial justification for the stop. Usually there is no reasonto ask a passenger for identification. Asking a passenger foridentification suggests the stop is pretextual, and the real purposeis a general inquisition about past, present, and future wrongdoing. The court in Gonzalez and Harris struck a balance. A simple requestfor identification from a passenger is allowed, but the routinerunning of warrant checks on passengers is not. I agree with thosedecisions. If a balance cannot be struck, if a police officer mustbe allowed to run a warrant check on every piece of identificationthat comes into his possession, we should straightforwardly recognizethat the fourth amendment affords no protection against vehicle stopsand searches. See People v. Ortiz, 317 Ill. App. 3d 212, 226, 738N.E.2d 1011, 1022 (2000) (Cook, P.J., specially concurring).