People v. Bartelt

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People v. Bartelt

State: Illinois

Docket No: 107276 NRel

Case Date: 03/24/2011

Preview:Docket No. 107276.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS _________________

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CHERYL L. BARTELT, Appellant. Opinion filed March 24, 2011.

JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Thomas and Garman concurred in the judgment and opinion. Justice Freeman dissented, with opinion, joined by Justices Burke and Theis.

OPINION After a lawful traffic stop, a police officer performed a set-up procedure, which entailed ordering the driver, defendant, Cheryl L. Bartelt, to roll up her truck's windows and turn the ventilation system's blowers on high before a second officer conducted a canine sniff of the exterior of her truck. The dog alerted on both doors of the truck, and a subsequent search of the truck resulted in discovery of drug evidence. Defendant was arrested and charged with unlawful possession of methamphetamine (720 ILCS 646/60(b)(1) (West 2006)). She filed a motion to suppress the evidence recovered during the traffic stop. The circuit court of Adams County granted the

motion to suppress. The State filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). A majority of the appellate court reversed the circuit court's order suppressing the evidence. 384 Ill. App. 3d 1028. This appeal followed. We are asked to determine whether the officers' actions in ordering defendant to roll up her windows and turn the blowers on high before conducting a dog sniff of the truck's exterior constituted an unreasonable search under the fourth amendment. We hold that it did not. Accordingly, we affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand to the circuit court for further proceedings consistent with this opinion. BACKGROUND The evidence introduced at the hearing on the motion to suppress can be summarized as follows. On the evening of July 29, 2006, Quincy police officer Mike Tyler, who had received information that defendant was a methamphetamine user, conducted surveillance of her apartment. At 6:45 p.m., he saw a pickup truck parked on the sidewalk in front of her apartment, ran the plates, and learned the truck was registered to her. At 8:15 p.m., he saw her and a man, later identified as Josh Miracle, come out of the apartment and place white trash bags in the back of the truck. Defendant got in the driver's seat and Miracle in the passenger seat. Defendant drove away, and Officer Tyler followed. He then alerted Quincy police officer Darin Kent, a member of the canine unit, that he intended to make a traffic stop and asked Officer Kent to conduct a dog sniff during the stop. Officer Tyler activated his lights when defendant pulled into a nearby gas station. He radioed Officer Kent that he had made the stop and provided the location. Officer Tyler then approached defendant's truck and told her that she had violated the Illinois Vehicle Code by parking her truck on the sidewalk in front of her apartment for over an hour and a half. He asked for and obtained her driver's license and insurance information and returned to his squad car to conduct a computer check of this information. However, within approximately 20 seconds after he returned to his car, and within three minutes of the initial stop, Officer Kent arrived at the scene with his narcotics detection dog, Max. -2-

Officer Kent is a certified canine handler for the department's street crimes unit. He follows the format for dog sniffs taught by the Illinois State Police canine unit and taught his fellow officers to follow the same procedures. One such procedure is a set-up procedure, which is done before the dog is taken around the vehicle. The set-up procedure entails telling the driver to turn off the engine; turn the key on auxiliary, which allows the blowers to work; turn the blowers on high; roll up the windows; and close the doors. The purpose of the set-up procedure is to force air inside the vehicle out through the seams, where the dogs are trained to sniff. Officer Kent asked Officer Tyler to set up defendant's truck for the dog sniff. Officer Tyler reapproached defendant, who was sitting in her truck, and told her to roll up her windows and turn the blowers on high. She complied, and Officer Kent conducted the dog sniff. Officer Kent begins a dog sniff by walking the dog parallel to the vehicle, beginning at the front and proceeding counterclockwise for two passes. The dog signals an alert by turning perpendicular to the vehicle. In addition, the dog's breathing will change, and his sniffing will intensify or become more rapid. Finally, the dog will put a paw out, look at the handler, and start barking. Probable cause is obtained through a dog's positive alert. Officer Tyler had returned to his squad car to run defendant's information but had not started writing the ticket when Officer Kent informed him that Max had alerted on both doors of the truck. Officer Tyler went back to defendant's truck and told her and Miracle to exit the truck. The officers obtained consent from both defendant and Miracle to search their persons. Nothing was found. A subsequent search of the truck and defendant's purse, which was inside, revealed a bag containing a digital scale with white powder residue; several burnt pieces of tinfoil; and a pen casing, with a burnt end and a powder substance on the inside. Defendant was arrested and charged with unlawful possession of methamphetamine (720 ILCS 646/60(b)(1) (West 2006)). Defendant filed a motion to suppress the evidence recovered during the traffic stop. During argument on the motion, defense counsel stated that before the hearing, he was unaware that a set-up procedure was used to facilitate the dog sniff. Therefore, in his -3-

suppression motion, counsel had argued that Officer Tyler's stop of defendant was an illegal seizure because he had manipulated the timing of the traffic stop by waiting for defendant to get into her truck and drive off, instead of knocking on the door of her apartment and issuing her a citation. Counsel had also focused on Officer Tyler's admission that he had intended to search the truck, hoping to find more incriminating evidence. The circuit court rejected defendant's argument regarding Officer Tyler's motivation. However, the court found the set-up procedure more interesting, noting that this was the first instance the court, the prosecutor, or defense counsel had encountered such a procedure. Because the court was curious as to whether the officers had the authority to direct defendant to roll up her windows and turn the blowers on high, it continued the matter to allow briefing on the issue. When the hearing resumed, the parties informed the court that they agreed that the United States Supreme Court's decision in Illinois v. Caballes, 543 U.S. 405 (2005), authorizes police to conduct a dog sniff and that a dog sniff ordinarily is not a search. They also agreed that there was no undue delay occasioned by the dog sniff, and no one disputed Max's qualification to perform the dog sniff. The parties disagreed, however, as to whether the officers had the authority to order defendant to comply with the set-up procedure before conducting the dog sniff. Although the propriety of the set-up procedure appeared to be a matter of first impression in Illinois, the State cited to United States v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006), as being factually analogous, to the extent that the defendant challenged the validity of the use of a set-up procedure identical to that employed here during a routine traffic stop. However, although the circuit court and the parties discussed United States v. Ladeaux's focus on whether police mandated compliance with the procedure

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