People v. Bernstein ( 2008 )

No. 3–07–0243
______________________________________________________________________________
Filed June 26, 2008
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
Plaintiff-Appellee, ) for the 14th Judicial Circuit,
) Henry County, Illinois
)
v. ) No. 06–CF–438
)
PETER BERNSTEIN, ) Honorable
Defendant-Appellant. ) Larry S. Vandersnick,
) Judge, Presiding
______________________________________________________________________________
JUSTICE O’BRIEN delivered the opinion of the court:
______________________________________________________________________________
Defendant Peter Bernstein was arrested following a traffic stop and charged with unlawful
possession with intent to deliver cannabis and unlawful possession of cannabis. He filed a motion
to suppress evidence which the trial court denied. A stipulated bench trial ensued after which the
trial court found Bernstein guilty of unlawful possession with intent to deliver and sentenced him
to a term of probation of 48 months. Bernstein appeals the denial of his motion to suppress. We
reverse the trial court’s denial of his motion, vacate his conviction and sentence, and remand.
FACTS
On November 20, 2006, defendant Bernstein was stopped on Interstate 80 in Henry County
for speeding and an expired license plate. The stop was executed by Illinois State Police Sergeant
Floyd Blanks, using his flashing MARS lights, which activated his squad car’s videotape recording
equipment. The videotape of the traffic stop establishes that the following occurred. After
approaching Bernstein’s car, Blanks informed Bernstein that he was exceeding the speed limit but
the officer’s concern was the vehicle’s expired plates. Blanks requested and received Bernstein’s
driver’s license and insurance and registration information. Bernstein explained to Blanks that he
had a one-way trip permit, which Blanks verified was adhered to the windshield. Blanks took
Bernstein’s documents back to his squad car and called the information into the dispatch center.
Approximately 12 minutes after the stop began, Blanks signaled for Bernstein to join him in
the squad car. Bernstein complied and the two engaged in conversation. Bernstein explained that
he had bought the vehicle on E-bay and was driving it home to Massachusetts, where he owned a
vehicle repair shop. While in California, he visited his brother and did some repair work on the
vehicle. Sixteen minutes after the stop began, Blanks handed the warning citation to Bernstein and
asked for his signature. The two continued to discuss Bernstein’s purchase of the vehicle and his
repair business in Massachusetts. At this point, Blanks still had Bernstein’s documents. He then
stated, “All righty [sic],” and told Bernstein to have a safe trip and a nice day. Immediately
thereafter, and before Bernstein was able to exit the squad car, Blanks inquired if he could ask
Bernstein a couple of questions. He proceeded to inquire whether Bernstein had anything illegal in
the vehicle, whether he was asked to transport anything, and whether the vehicle was modified to
conceal contraband such as weapons or narcotics. Blanks then asked Bernstein whether he could
take a “quick look” and, after Bernstein agreed, thanked him for his patience and cooperation.
While investigating the interior of the trunk, Blanks notified Bernstein that the upholstery
on the backseat was glued down and stapled. Bernstein told Blanks he could pull up the glued
section. Blanks proceeded to enter the backseat of the vehicle and continued searching until he
located a package in a compartment under the backseat. Blanks told Bernstein to remain at the front
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of the car and returned to his squad car where he called for backup, telling the dispatcher that
Bernstein had a history of assault and battery on a cop and he had a bad feeling about him. Bernstein
and Blanks each remained in their respective vehicles for the next 24 minutes while awaiting the
arrival of a backup officer. When the backup officer arrived, he patted down Bernstein and
confirmed that there was a package under the seat. The two officers continued waiting for a third
officer with a canine who arrived six minutes later. Bernstein was cuffed, and it was determined that
the package under the seat contained cannabis.
Bernstein was thereafter charged with unlawful possession with intent to deliver cannabis
and unlawful possession of cannabis. 720 ILCS 550/5(f), 4(f) (West 2006). He filed a motion to
suppress evidence, arguing that the traffic stop was unlawfully prolonged and that the character of
the stop was changed from a traffic stop to an investigation of unrelated criminal activity. A hearing
on his motion was held at which Bernstein testified to the following. Blanks began to ask him
additional questions at the same time he handed Bernstein his documents. Because Blanks was
asking questions, Bernstein did not want to walk away and was not sure he could leave. Bernstein
explained that when an officer asks you to cooperate, you do so. He did not feel he was free to leave
and he would have left if he had felt free to do so. Blanks was in uniform and Bernstein could see
his gun. Blanks testified at the hearing as follows. After he began asking Bernstein additional
questions, Bernstein asked him if he would like to take a look in the vehicle; he then requested a
“quick look” to cover himself. At no time did he smell cannabis or see anything illegal in the
vehicle. He did not think Bernstein was driving under the influence. He had his lights activated at
all times during the stop. Following the presentation of testimony and argument, the trial court found
that the initial lawful seizure of Bernstein had concluded, that there was no second seizure but a
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consensual encounter. The court denied Bernstein’s motion to suppress. Bernstein filed a motion
to reconsider the denial of his motion to suppress and a hearing ensued on the motion after which
the motion to reconsider was denied. A stipulated bench trial was held. The State dismissed the
unlawful possession of cannabis charge and the trial court found Bernstein guilty of unlawful
possession of cannabis with intent to deliver. The trial court sentenced Bernstein to 48 months’
probation and imposed fines and fees. Bernstein appealed.
ANALYSIS
The sole issue on appeal is whether the trial court erred when it denied Bernstein’s motion
to suppress evidence and his motion to reconsider the denial of the motion to suppress. Bernstein
argues that the denial was improper because he was subjected to a prolonged detention and improper
questioning without reasonable suspicion of criminal activity which rendered invalid any consent
to the search. When reviewing a trial court’s ruling on a motion to suppress, we will not disturb the
trial court’s factual findings unless manifestly erroneous. People v. Sorenson, 196 Ill. 2d 425, 430-
31, 752 N.E.2d 1078, 1083 (2001). We review de novo a defendant’s legal challenge to the denial
of his motion to suppress. Sorenson, 196 Ill. 2d at 431, 752 N.E.2d at 1083.
We begin with Bernstein’s first contention, that Blanks unlawfully prolonged the traffic stop
for the sole purpose of interrogating him regarding criminal activity in violation of the fourth
amendment of the United States Constitution. U.S. Const., amend. IV. He argues that the trial court
erred in determining that the initial lawful seizure had ended and that Blanks did not need a
reasonable suspicion of criminal activity to continue Bernstein’s detention. He also argues that the
trial court erroneously found that there was no coercion preventing Bernstein from leaving after
receiving his documents and that his consent to the subsequent search of his vehicle was voluntary.
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The temporary detention of an individual during a traffic stop constitutes a seizure under the
fourth amendment and is subject to the fourth amendment’s requirement of reasonableness. Whren
v. United States, 517 U.S. 806, 809-10, 135 L. Ed. 2d 89, 95, 116 S. Ct. 1769, 1772 (1996). The
reasonableness of a traffic stop is analyzed under the dual inquiry set forth in Terry v. Ohio, 392 U.S.
1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). People v. Brownlee, 186 Ill. 2d 501, 518-19, 713 N.E.2d
556, 565 (1999). Pursuant to Terry, an officer may conduct a brief, investigatory stop of individuals,
absent probable cause to arrest, provided the officer has a reasonable, articulable suspicion of
criminal activity. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. Under the Terry
dual inquiry, we consider “whether the officer’s action was justified at its inception,” and “whether
it was reasonably related in scope to the circumstances which justified the interference in the first
place.” Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.
The trial court relied on People v. Mendoza, 364 Ill. App. 3d 564, 846 N.E.2d 169 (2006),
in finding that the traffic stop ended when Blanks returned Bernstein’s documents and in concluding
that the subsequent encounter was not a seizure but was a consensual encounter and Bernstein’s
consent to search voluntary. The Mendoza court noted that a traffic stop seizure concludes when the
officer returns the driver’s documentation and issues either a warning or a ticket. Mendoza, 364 Ill.
App. 3d at 574, 846 N.E.2d at 177. Under Mendoza, once the traffic stop has ended, the proper
analysis as to the constitutionality of an officer’s continued questioning is whether the questions
amounted to a second seizure. Mendoza, 364 Ill. App. 3d at 574, 846 N.E.2d at 177.
The State argues that People v. Ramsey, 362 Ill. App. 3d 610, 839 N.E.2d 1093 (2005), is
applicable to the instant facts. In Ramsey, the defendant was stopped for a broken windshield, and
after the officer returned Ramsey’s documents and a warning citation, he asked if he could check
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Ramsey’s vehicle. Ramsey, 362 Ill. App. 3d at 612, 839 N.E.2d at 1096. Ramsey agreed, and the
officer found contraband during the subsequent search. Ramsey, 362 Ill. App. 3d at 612-13, 839
N.E.2d at 1096. The trial court granted Ramsey’s motion to suppress, finding that the traffic stop
was completed when the officer returned Ramsey’s information and that the subsequent search
exceeded the scope of the stop. Ramsey, 362 Ill. App. 3d at 613, 839 N.E.2d at 1096-97. The
reviewing court reversed, holding that after his documents were returned, Ramsey was free to go and
that the officer’s actions did not amount to a show of authority such that they constrained Ramsey’s
freedom to leave. Ramsey, 362 Ill. App. 3d at 617, 839 N.E.2d at 1100. The Ramsey court found
that the defendant was not subjected to a second seizure as the additional questions constituted a
consensual encounter. Ramsey, 362 Ill. App. 3d at 618, 839 N.E.2d at 1100.
In contrast, Bernstein argues that the facts of this case are more aligned with the facts in
People v. Goeking, 335 Ill. App. 3d 321, 780 N.E.2d 829 (2002). In Goeking, an officer stopped a
teenage driver for failing to signal when she pulled away from the curb. Goeking, 335 Ill. App. 3d
at 322, 780 N.E.2d at 830. After running a check on the driver and the car’s occupants, he asked the
driver to step out of the car as he suspected she was driving under the influence. Goeking, 335 Ill.
App. 3d at 322, 780 N.E.2d at 830. After ascertaining that she was not, he issued a verbal warning
and told the driver she was free to go. Goeking, 335 Ill. App. 3d at 322, 780 N.E.2d at 830. As she
was returning to her vehicle, the officer began questioning her as to the presence of contraband in
the vehicle and obtained her consent to a search during which he found items containing drug
residue. Goeking, 335 Ill. App. 3d at 322-23, 780 N.E.2d at 830. The trial court granted her
subsequent motion to suppress, holding that, under all the circumstances, a reasonable person in the
driver’s position would not have felt free to leave and was thus seized. Goeking, 335 Ill. App. 3d
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at 324, 780 N.E.2d at 832-33. The reviewing court affirmed the trial court’s finding that the driver
did not feel she had a choice in consenting to the officer’s request to search her vehicle and thus her
consent was involuntary. Goeking, 335 Ill. App. 3d at 324, 780 N.E.2d at 832.
The circumstances in the case at bar establish that Blanks began questioning Bernstein at the
same time he returned Bernstein’s documents and the warning citation. The trial court determined
that the traffic stop concluded when Blanks gave Bernstein back his documents and the warning
citation. We disagree. We do not consider Blanks’ superficial termination of the traffic stop to have
concluded it. Blanks returned the documents and immediately began posing questions to Bernstein.
Blanks inserted his request to ask more questions in the “seamless transition between mandatory and
‘consensual’ interaction.” People v. LaPoint, 353 Ill. App. 3d 328, 333, 818 N.E.2d 865, 869 (2004).
There was an insufficient passage of time or a perceivable shift in Blanks’ authoritative stance such
that a reasonable person in Bernstein’s position would have recognized that the traffic stop had
ended and a consensual encounter begun. While Blanks did not tell Bernstein he was required to
answer the additional questions, the evidence indicates that Blanks had not inquired about the
presence of contraband at any prior point during the traffic stop and Blanks testified that he asked
the questions in order to elicit incriminating information from Bernstein. Bernstein testified that
because Blanks was asking questions, he felt he had to cooperate. He further testified that he did not
feel free to leave.
We find the facts in Goeking similar to the instant facts and agree with Goeking’s reasoning
that a voluntary encounter following a traffic stop would be rare. Goeking, 335 Ill. App. 3d at 324,
780 N.E.2d at 831. We find compelling that the Goeking court determined that although the
defendant was walking to her vehicle after the return of her documents, she did not feel free to leave.
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Goeking, 335 Ill. App. 3d at 324, 780 N.E.2d at 831-32. In the case at bar, Bernstein was seated in
Blanks’ squad car when the additional questioning began. That fact alone distinguishes the instant
circumstances from those in Ramsey on which the State and the trial court relied. In that case, the
the defendant was seated in his vehicle when the officer returned his documents. Ramsey, 362 Ill.
App. 3d at 612, 839 N.E.2d at 1096. We thus conclude that the traffic stop had not concluded when
Blanks began questioning Bernstein anew. Accordingly, we now examine whether the stop violated
Bernstein’s fourth amendment rights.
An officer’s observation of a traffic violation justifies a traffic stop and satisfies the first
prong of the Terry analysis. Mendoza, 364 Ill. App. 3d at 569, 846 N.E.2d at 173. Analysis under
Terry’s second prong requires consideration of the length of the detention and the manner in which
it was carried out. People v. Bunch, 207 Ill. 2d 7, 14, 796 N.E.2d 1024, 1029 (2003). An
investigative stop should be temporary, lasting no longer than needed to effectuate its purpose, and
the investigative methods used should be the least intrusive to address the officer’s suspicions in the
shortest time period. Bunch, 207 Ill. 2d at 14, 796 N.E.2d at 1029. To determine whether police
questioning during a traffic stop satisfies Terry’s second-prong analysis, a three-part framework is
used. People v. Gonzalez, 204 Ill. 2d 220, 235, 789 N.E.2d 260, 270 (2003), overruled in part on
other grounds, People v. Harris, 228 Ill 2d 222 (2008). As an initial matter, the first consideration
is whether the question is related to the purpose of the traffic stop. Gonzalez, 204 Ill. 2d at 235, 789
N.E.2d at 270. If reasonably related, the fourth amendment is not violated. Gonzalez, 204 Ill. 2d at
235, 789 N.E.2d at 270. If the question is not reasonably related, we next consider whether the
officer had a reasonable, articulable suspicion that justifies the question. Gonzalez, 204 Ill. 2d at
235, 789 N.E.2d at 270. If the officer does, there is no fourth amendment violation. Gonzalez, 204
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Ill. 2d at 235, 789 N.E.2d at 270. If the officer lacks a reasonable, articulable suspicion, we
determine whether, considering all the circumstances and in light of common sense, the question
impermissibly prolonged the stop. Gonzalez, 204 Ill. 2d at 235, 789 N.E.2d at 270.
We acknowledge that the three-part framework established in Gonzalez has been overruled
in part by the Illinois Supreme Court’s recent decision in People v. Harris, 228 Ill. 2d 222 (2008).
Relying on the decisions in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834
(2005), and Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), the Harris
court concluded that the duration prong of the Gonzalez framework is all that survives as the sole
focus of the inquiry as to the reasonableness of a traffic stop. Harris, 228 Ill. 2d at 244. Because our
conclusion in the instant case focuses only on the duration of the traffic stop, Harris does not affect
our analysis.
We begin our analysis of the instant facts with the determination that Blanks was justified
in executing the traffic stop of Bernstein, based on his observation that Bernstein was speeding and
his belief, albeit erroneous, that Bernstein was driving with an expired license plate. Thus, the first
prong under Terry is satisfied. To analyze the instant traffic stop under Terry’s second prong, we
employ the three-part framework set forth in Gonzalez. Our first consideration is whether Blanks’
questions were related to the purpose of the traffic stop. The questions at issue which Blanks asked
Bernstein concerned whether he was carrying anything illegal, whether he was asked to transport any
contraband and whether the vehicle was modified to conceal unlawful items. We conclude that none
of the questions related to the traffic violation of speeding. We next consider whether Blanks had
a reasonable, articulable suspicion justifying his questions and find that he did not. At the
suppression hearing, Blanks testified that he did not smell cannabis or see anything illegal during the
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stop and he did not believe that Bernstein was driving under the influence. As Blanks lacked a
reasonable, articulable suspicion of criminal activity, we lastly consider whether, under all the
circumstances and in light of common sense, the questions impermissibly prolonged the stop. We
find that they did. The videotape establishes that Blanks handed Bernstein his documents and, at the
same time, began asking Bernstein the unrelated questions. He requested a “quick look,” and began
searching Bernstein’s vehicle at that time. After searching for nearly seven minutes, Blanks found
what he believed to be an unlawful package under the backseat. At this time, approximately 28
minutes had elapsed since the traffic stop began. The circumstances and common sense dictate the
conclusion that the traffic stop was impermissibly prolonged.
Based on our above analysis, we find that the instant traffic stop was not a brief encounter
using the least intrusive means and hold that the stop violated Bernstein’s fourth amendment rights.
Because an illegal detention occurred, we find Bernstein’s subsequent consent to search involuntary.
As the cannabis was discovered as a result of an illegal seizure, it must be suppressed as fruit of the
poisonous tree. Brownlee, 186 Ill. 2d at 521, 713 N.E.2d at 566. The trial court erred in denying
Bernstein’s motion to suppress. We therefore reverse the trial court’s denial of the motion to
suppress and vacate Bernstein’s conviction and sentence.
For the foregoing reasons, the judgment of the circuit court of Henry County is vacated in
part and reversed and remanded.
Vacated in part, reversed and remanded.
McDADE, P.J., and HOLDRIDGE, J., concur.
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