People v. Roberts ( 2007 )

NO. 4-02-0613 Filed 6/5/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Brown County
LUCAS T. ROBERTS, ) No. 01CF4
Defendant-Appellant. )
) Honorable
) David K. Slocum,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Following a stipulated bench trial in May 2002, the
trial court found defendant, Lucas T. Roberts, guilty of unlawful
possession of cannabis with intent to deliver. 720 ILCS 550/5(c)
(West 2000). The court sentenced defendant to 24 months'
probation. Defendant appealed the court's denial of his motion
to suppress, arguing the deputy exceeded the scope of his
authority by questioning defendant about possible criminal
activity after the traffic stop was completed. We reversed the
court's denial of defendant's motion to suppress and vacated the
judgment of conviction. People v. Roberts, 349 Ill. App. 3d 972,
813 N.E.2d 748 (2004). The State filed a petition for leave to
appeal to the Supreme Court of Illinois. On September 27, 2006,
the supreme court denied the State's petition but directed this
court to vacate its judgment and reconsider defendant's appeal in
light of Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842,
125 S. Ct. 834 (2005), and People v. Caballes, 221 Ill. 2d 282,
851 N.E.2d 26 (2006) (Caballes III). People v. Roberts, 221 Ill.
2d 665, 853 N.E.2d 1230 (2006) (nonprecedential supervisory order
on denial of leave to appeal). After reviewing the United States
Supreme Court's opinion and this states's supreme court decision
in Caballes III, we affirm the trial court's denial of
defendant's motion to suppress.
I. BACKGROUND
In December 2001, the trial court held a hearing on
defendant's motion to suppress. Deputy sheriff Michael Scott
Hainline testified that on August 25, 2000, he was assigned to
routine traffic patrol in Brown County. He testified that he had
undergone drug interdiction training as a significant part of his
training for traffic duties. Hainline testified that this
training taught him to go "beyond the initial traffic stop" and
to ask different questions and to look for different answers or
nonresponsiveness, to observe the body language of 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
further search may be warranted, the classes taught him
techniques to effectuate that search in a manner that would
reduce the level of constitutional scrutiny.
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At 4 a.m. on August 25, 2000, as Hainline was driving
eastbound along US Route 24, he noticed in his side mirror that
defendant's westbound car that he had just passed did not have a
working registration light. Hainline turned his car around,
switching from the eastbound lane to the westbound lane, and upon
confirming that the car 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 noted that it appeared that
three subjects were in the vehicle. Hainline said the movement
was not unusual.
After stopping the car, Hainline approached the vehicle
on the passenger side. Hainline testified that the passenger in
the front seat initially looked surprised that he had come up on
his right instead of on the driver's side. Hainline then
introduced himself, stated the reason for the stop, and asked the
driver of the car for his license and proof of insurance. He
also asked for identification from the passengers, Adam Heather
in the front seat and Walter Bartz in the back.
Hainline testified that Heather did not directly look
at him, except to answer questions about his identity and birth
date, but instead looked straight ahead when he was not speaking.
Hainline characterized this behavior as suspicious under the "no-
look test," saying that most passengers will look at the officer
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just as a show of respect and that it is suspicious if a
passenger tries to ignore the officer or pretend that he is not
there. Conversely, Hainline testified that Bartz, the passenger
in the rear seat, was overly friendly, which also was suspicious
behavior.
As he was talking to the vehicle's occupants, Hainline
smelled a strong odor. Although he could not identify the scent,
he agreed that it could have been food. Hainline testified that
a strong odor, even if the smell could not be identified, was
often indicative of the masking of drugs or drug use in the car.
Hainline took the information he had received and
returned to his patrol car to check that defendant's driver's
license was valid and to run a warrant check on everyone in the
vehicle. He found 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 Task Force that Heather was involved
in illegal drug activity. However, defendant had a valid
driver's license and proof of insurance, and no warrants were
outstanding for any occupant, so Hainline exited his patrol car
and approached the vehicle, this time from the driver's side.
Hainline then asked defendant to exit his car and to join him at
the rear of the car. Defendant complied, and Hainline talked
briefly with him while he wrote out a warning ticket. Hainline
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asked him where they were coming from and what they were doing.
Defendant answered that they had been at a friend's house in
Beardstown. When asked the name of the person they had visited,
defendant did not answer. Hainline then issued the warning
ticket to defendant and returned his insurance card and driver's
license, informing him that he was free to go. Hainline
testified that the reason he waited to question defendant about
the contents of his vehicle until after he had returned his
license and told him he was free to go was to prevent defendant
from saying at trial that he did not feel he was free to leave at
that moment.
There is some dispute as to whether defendant reentered
the vehicle and was about to leave or whether he was simply
returning to the vehicle, but after defendant had received his
warning ticket, driver's license, and insurance card, Hainline
asked him if they had any open alcohol in the vehicle. Defendant
replied in the negative. Hainline asked him if any loaded guns
were in the car. Defendant answered no. Hainline asked if any
illegal drugs were in the car. Defendant testified he said no.
However, Hainline testified that defendant did not provide an
answer but instead looked down and away from him.
Hainline then asked for permission to search the
vehicle. Defendant testified that he did not initially consent.
Hainline testified that defendant gestured toward the car when he
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first asked for consent. Hainline said that defendant verbally
consented after he asked again. Hainline said that defendant
then went to the car, said something to Heather and Bartz, and
then Heather and Bartz got out of the car. Defendant, however,
testified that he eventually consented after Hainline told him
that he could keep them there until defendant consented and that
a canine unit was nearby. Hainline denied telling them that he
could keep them there until they consented. However, Hainline
testified, "I think when I had all the passengers out of the
vehicle I said something about other units being in the area, one
may be a canine unit, not indicating there was." Hainline denied
that he said this to make defendant feel as if he would be held
there until a canine unit arrived unless he consented to a
search.
When asked by defense counsel why he told defendant
about the possible canine unit, Hainline said, "Sir I had three
people out there. I was by myself. I said, there’s other units
out here. Have you guys seen any other units out here?" Defense
counsel asked Hainline why he would ask the men in the car
whether they had seen other units out that night. Hainline
responded, "I have three subjects. It’s 4:00 o’clock in the
morning. They don’t know, sir, that there’s not other units out
there, being state, county, whatnot." Defense counsel asked
Hainline whether he meant to imply that he was concerned for his
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safety. Hainline responded, "I think we have to take officer
safety into consideration in the way we teach things, obviously.
An ideal situation would be two officers on one subject would be
minimal to handle people. Obviously, in my case, we had one
county deputy and three subjects." Hainline agreed that neither
defendant nor his codefendants had demonstrated any threatening
behavior or words up to this point.
After Hainline received defendant’s consent to search
the car, he said he ordered the passengers out and frisked each
of them, finding no weapons or contraband. Curiously, Hainline
testified earlier that the men exited the car voluntarily after
defendant consented and then went to the car and spoke to them.
He then opened the passenger side door and began a vehicle
search, which resulted in his finding a "one-hitter" pipe and a
large bag of plant material, which later field tested positive
for cannabis.
The trial court denied defendant's motion to suppress,
finding that (1) the initial traffic stop was permissible, (2) a
reasonable person in defendant's position would believe he was
free to leave, (3) the detention was not improperly prolonged,
and (4) Hainline had reasonable suspicion to ask for consent to
search.
Before announcing its decision, the trial court stated:
"The officer had given [defendant] back
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all of his documentation, told him he was
free to go, and then said, [']by the way, can
I [search the car?'] And not any great
amount of time had passed when that had
occurred, just a matter of less than minutes,
unlike the Brownlee case. And unlike the
Brownlee case, [defendant] did not say to the
officer, [']do I have a choice?['] And the
officer had reason to ask for a consent to
search, and the reason was that, perhaps not
totally objective standards of eye contact,
movement, unidentifiable odor, which probably
could have been sweat socks, the name of the
passenger who had a criminal record and whose
name had been made known to the officer by
members of the Drug Task Force, and the
driver's inability to provide the name of
friends that were visiting."
Following a stipulated bench trial, defendant was found
guilty of unlawful possession of cannabis with intent to deliver.
Defendant filed a posttrial motion, arguing the trial court erred
in denying his motion to suppress. On July 26, 2002, the court
denied defendant's posttrial motion and sentenced defendant to 24
months' probation. Defendant appealed the trial court's decision
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to deny his motion to suppress, and this court reversed the trial
court's ruling (Roberts, 349 Ill. App. 3d 972, 813 N.E.2d 748).
On September 27, 2006, the Supreme Court of Illinois, by
supervisory order, ordered this court to vacate that decision and
review the case in light of the recent United States Supreme
Court opinion in Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125
S. Ct. 834, and Caballes III, 221 Ill. 2d 282, 851 N.E.2d 26.
In Caballes, defendant's motion to suppress was denied.
There, during a routine traffic stop, the police allowed a dog to
circle defendant's car and sniff the area around his car. The
dog alerted, giving the officers probable cause to search. The
defendant argued that the dog search violated his fourth
amendment right to be free from unreasonable searches. U.S.
Const., amend IV. The United States Supreme Court found that
defendant had no expectation of privacy in the air surrounding
his car. The Court held that a dog sniff is permissible, even
absent reasonable suspicion to search, so long as it does not
unreasonably prolong the length of the stop. The Court remanded
the case to the Supreme Court of Illinois. In Caballes III, this
state's supreme court held that the state constitution affords
citizens the same protections as the fourth amendment, and the
dog sniff was therefore permissible. However, Caballes III is
not dispositive of the instant case. No canine unit ever arrived
or conducted a sniff of defendant’s vehicle.
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However, our original opinion in this case focused on
the Supreme Court of Illinois's decision in People v. Harris, 207
Ill. 2d 515, 802 N.E.2d 219 (2003). In Harris, the supreme court
concluded that while asking for identification from the
passengers in a car during a routine traffic stop was
constitutionally permissible, running a warrant check on those
individuals was not. However, the Supreme Court of the United
States vacated the judgment in Harris and remanded it to this
state's supreme court to review in light of the Supreme Court's
decision in Caballes. Illinois v. Harris, 543 U.S. 1135, 161 L.
Ed. 2d 94, 125 S. Ct. 1292 (2005) (referring to Caballes, 543
U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834). The supreme court
has yet to issue its opinion in Harris on remand. Because of the
uncertainty of the supreme court's review in Harris, this court
is now compelled to reanalyze this case without reliance on
Harris.
II. ANALYSIS
A. Standard of Review
When a trial court's ruling on a motion to suppress
involves factual determinations or credibility assessments, the
court's ruling will not be disturbed on review unless it is
manifestly erroneous. People v. Sorenson, 196 Ill. 2d 425, 430-
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31, 752 N.E.2d 1078, 1083 (2001). However, where the facts and
witness credibility are not in dispute, the ultimate question
posed by the legal challenge to the trial court's ruling on a
motion to suppress is reviewed de novo. Sorenson, 196 Ill. 2d at
431, 752 N.E.2d at 1083.
B. Denial of Motion To Suppress
At issue in the instant case is whether the trial court
erred in denying defendant's motion to suppress, finding (1) a
reasonable person in defendant's position would have believed he
was free to leave after the warning citation was issued and
defendant's driver's license and insurance card were returned and
(2) defendant was not unconstitutionally seized when Hainline
questioned defendant after the traffic stop was complete.
Both parties acknowledge that the traffic stop was
complete once Hainline returned defendant's driver's license and
insurance card, handed defendant the warning citation, and told
defendant he was free to leave. Defendant argues, however, that
Hainline's later questions would make a reasonable person believe
that he was not free to leave.
An officer does not have to explicitly inform the
driver that he is free to go before asking for consent to search.
People v. Brownlee, 186 Ill. 2d 501, 512, 713 N.E.2d 556, 562
(1999). However, where an illegal detention has occurred, a
subsequent consent to search may be found to have been tainted by
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the illegality. Brownlee, 186 Ill. 2d at 519, 713 N.E.2d at
565. The court must look at the "totality of the circumstances"
to determine whether the driver’s consent to search was validly
given. Brownlee, 186 Ill. 2d at 514, 713 N.E.2d at 563, citing
Ohio v. Robinette, 519 U.S. 33, 40, 136 L. Ed. 2d 347, 355, 117
S. Ct. 417, 421 (1996).
The relevant issue in this situation "'is whether a
reasonable person would feel free to decline the officers'
requests or otherwise terminate the encounter.'" People v.
Luedemann, 222 Ill. 2d 530, 550, 556, 857 N.E.2d 187, 203 (2006),
quoting Florida v. Bostick, 501 U.S. 429, 436, 115 L. Ed. 2d 389,
400, 111 S. Ct. 2382, 2387. Determining whether the defendant
felt free to leave is analyzed from an objective standard by the
court and is not construed literally. Luedemann, 222 Ill. 2d at
555, 857 N.E.2d at 202-03 (noting that the standard is not
whether an individual "practically" or "realistically" felt free
to leave).
The fact that a traffic stop is complete does not
necessarily constrain a police officer from asking a vehicle's
occupant for permission to search the car. People v. Ramsey, 362
Ill. App. 3d 610, 617, 839 N.E.2d 1093, 1103 (2005). In Ramsey,
the stop was complete when the police officer returned
defendant’s license and insurance card and issued a warning
citation. The issue posed by the court in Ramsey was "whether a
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law-enforcement officer may, after the traffic stop is concluded,
ask the driver whether he has anything illegal in his truck, and
when the reply is negative, ask for permission to search."
(Emphases in original.) Ramsey, 362 Ill. App. 3d at 622, 839
N.E.2d at 1104 (Knecht, J., specially concurring). This court
found that although the officer prolonged the stop by asking the
defendant whether he had anything illegal or unusual in his car
and requesting permission to search, the questioning took mere
seconds. The court concluded that the search in Ramsey was
proper because the officer did not exhibit any behavior that
would imply that the search he requested was mandatory. Ramsey,
362 Ill. App. 3d at 620, 839 N.E.2d at 1102. This court held
that the officer's actions did not constitute a show of authority
such that a reasonable person would not feel free to leave.
Ramsey, 362 Ill. App. 3d at 617, 839 N.E.2d at 1100. "Unless the
circumstances of the encounter are so intimidating as to
demonstrate that a reasonable person would have believed he was
not free to leave if he had not responded, one cannot say that
the questioning resulted in a detention under the [f]ourth
[a]mendment." Immigration & Naturalization Service v. Delgado,
466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1763
(1984). However, this court in Ramsey cautioned, "An officer may
ask, not demand or direct, and the driver may refuse to answer
and be on his way." Ramsey, 362 Ill. App. 3d at 621, 839 N.E.2d
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at 1103.
Without a show of authority by the police officer,
defendant may be presumed to know that he is free to leave.
United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497,
508-09, 100 S. Ct. 1870, 1876-77 (1980). In Mendenhall, the
Supreme Court listed four examples of circumstances that might
indicate a seizure even where the person did not attempt to
leave: "[(1)] the threatening presence of several officers,
[(2)] the display of a weapon by an officer, [(3)] some physical
touching of the person of the citizen, or [(4)] the use of
language or tone of voice indicating that compliance with the
officer's request might be compelled." Mendenhall, 446 U.S. at
554, 64 L. Ed. 2d. at 509, 100 S. Ct. at 1877. In addition,
Luedemann acknowledged that the Mendenhall examples, or factors,
are not an exhaustive list of actions police officers may take
that constitute a show of authority. Luedemann, 222 Ill. 2d at
556, 857 N.E.2d at 203.
The chronology of events after the stop is crucial.
The discrepancies between defendant's and Hainline's testimony
are material to determine the coercive nature of the encounter
from an objective standard. If Hainline's encounter with
defendant was coercive, defendant's consent would not be
voluntary.
The uncontradicted facts in this case are that
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defendant was told he was free to go; defendant was questioned
about firearms, alcohol, and drugs; and defendant answered "no"
when asked about firearms and alcohol. The facts in dispute are
whether defendant refused to answer Hainline's question about
drugs, whether defendant was in his car or outside of his car
when Hainline questioned him and asked for his consent to search,
whether Hainline asked defendant about other units nearby before
he obtained defendant's consent to search, and whether Hainline
implied the other nearby units were canine units.
Both defendant and his codefendant, Heather, testified
that Hainline specifically said that there was a canine unit
nearby and that he said this prior to obtaining defendant's
consent. Hainline's testimony did not address this issue at all
until cross-examination. On cross-examination, Hainline admitted
that he made a comment to defendant about the possibility of
other units being nearby; however, he did not testify as to
whether he said this before or after defendant consented to the
search.
It is the trial court's responsibility to "determine
the credibility of witnesses and the weight given to their
testimony, to resolve conflicts in the evidence, and to draw
reasonable inferences from that evidence." People v. Singleton,
367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006), citing
People v. Phelps, 211 Ill. 2d 1, 7, 809 N.E.2d 1214, 1218 (2004).
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We will not reverse the trial court's findings of fact unless
manifestly erroneous. Sorenson, 196 Ill. 2d at 430-31, 752
N.E.2d at 1083. However, the trial court did not make any
explicit finding of fact regarding the events that occurred after
the initial stop was complete.
If Hainline's comment about the nearby units came after
defendant refused consent to search his vehicle, it would clearly
suggest to defendant that his compliance with the officer’s
request could be compelled. The effect of telling a citizen who
is not under arrest that a canine unit is nearby is coercive in
nature. The fact that Hainline acknowledged that he said this
because he was "outnumbered" indicates that Hainline intended the
comment to be a show of authority. However, if defendant had
already given his consent, the comment would be benign with
regard to whether defendant's consent was voluntary.
Also, Hainline testified that during the stop he became
aware that one of the passengers in defendant’s vehicle, Heather,
had been "involved" in illegal drug activity. However, Hainline
questioned defendant, not Heather, after the stop was complete.
Also, Hainline did not initially question defendant about drugs.
First, he asked whether any alcohol or loaded weapons were in the
vehicle. Defendant answered "no" to both of these questions.
Hainline then asked if drugs were in the vehicle. Hainline
contends that defendant refused to answer this question. Since
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defendant was not being detained and was free to leave, he had
the right to refuse to answer the officer. Florida v. Royer, 460
U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324
(1983). Defendant’s unwillingness to engage in conversation with
the officer could be deemed by a fact finder to suggest that
defendant was choosing not to voluntarily cooperate with
Hainline.
After defendant refused to answer Officer Hainline’s
question about drugs, Hainline testified that he asked for
consent to search defendant’s vehicle. Defendant testified he
refused. If defendant refused, there can be no doubt that the
consensual nature of the officer’s encounter with the defendant
ended when defendant refused to answer the officer’s question and
refused the officer's request to search. People v. Ortiz, 317
Ill. App. 3d 212, 221, 738 N.E.2d 1011, 1019 (2000), citing Terry
v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
However, Hainline testified that although defendant did not
verbally respond the first time he asked to search defendant's
car, when he asked again defendant consented. Hainline did not
testify that defendant said anything between the first and second
time Hainline asked for defendant's consent.
Because it cannot be discerned from the record whether
Hainline told defendant about the other nearby units before he
obtained defendant's request to search, we defer to the trial
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court's findings. The trial court found that Hainline had
reasonable suspicion to request consent to search based upon
information Hainline acquired during the stop. Although the
trial court did not address whether Hainline mentioned calling a
canine unit to the scene before obtaining defendant's consent,
this testimony was before the court and it ruled in the State's
favor. Therefore, because the trial court's decision was not
against the manifest weight of the evidence, we affirm.
III. CONCLUSION
For the reasons set forth above, we affirm the trial
court's denial of defendant's motion to suppress.
Affirmed.
KNECHT and COOK, JJ., concur.
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