People v. Matous ( 2008 )

No. 3--06--0633
(Consolidated with Nos. 3--06--0634 and 3--06--0635)
_________________________________________________________________
Filed April 15, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois,
Plaintiff-Appellant, )
)
v. ) Nos. 05--CF--188, 05--CF--189,
) and 05--CF--190
CHRISTOPHER A. MATOUS, )
WESLEY E. MILLER, and )
BRUCE E. EGLEY, ) Honorable
) William D. Henderson,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________
In separate cases, the State charged each of the defendants,
Christopher A. Matous, Wesley E. Miller, and Bruce E. Egley, with
two counts of unlawful possession of methamphetamine
manufacturing chemicals (pseudoephedrine) (720 ILCS 570/401 (West
2004)). Each of the defendants filed motions to suppress the
evidence in their respective cases. The trial court held a
consolidated hearing on the motions, which the court granted. On
appeal, the State argues that the trial court erred by granting
the defendants' motions to suppress. We reverse and remand.
BACKGROUND
The event in question took place in Macomb on August 29,
2005. At the suppression hearing, Joseph Moon testified that on
August 29, he was an Illinois state trooper and a canine handler.
At approximately 6 p.m., Moon was on patrol when he heard a
dispatch from the McDonough County sheriff's office over his
squad car's radio concerning "possible methamphetamine chemical
purchases." The dispatcher said "that a Hy-Vee Pharmacy had
called them advising that two males had purchased boxes of
pseudoephedrine pills and got into the same vehicle, which was a
purple Mercury Tracer with Iowa registration." The dispatcher
then stated the vehicle's Iowa license plate number.
Moon said that the dispatcher reported that the men "each
purchased pseudoephedrine, a box of pseudoephedrine pills and got
into the same vehicle." When Moon was asked, "How many boxes of
pseudoephedrine?," Moon replied, "I believe two total." The
dispatcher described the two individuals as (1) a white male in
his forties with grey or white hair in a ponytail, wearing a
white tee-shirt; and (2) a white male in his twenties. During
the hearing, Moon noted that he met with the Hy-Vee pharmacist
and viewed videotapes of the defendants after their arrest.
At approximately 7 or 7:30 p.m., Moon observed a purple
Mercury Tracer traveling on U.S. 136. The vehicle's Iowa license
plate number matched the number given by the dispatcher. Moon
said the car had three occupants, two of whom matched the
dispatcher's descriptions of the individuals at the Hy-Vee store.
Moon noted that the driver of the car appeared to be in his
forties, had a white ponytail, and was wearing a white tee-shirt.
According to Moon, the rear passenger was "a younger white male."
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Moon followed the Mercury in his squad car. Moon said, "I
observed the vehicle make a traffic violation and called in a
stop and activated my emergency lights." When he was asked to
describe the violation, Moon stated that the vehicle "[c]rossed
the center line." Later, Moon testified that there were two
solid yellow lines in the center of the highway. Moon observed
the vehicle drive "over the far right yellow line at the time of
the offense." He said that the vehicle did not cross the second
yellow line but, rather, crossed "just one of them." Moon
asserted that he would have stopped the vehicle on the basis of
the information from the dispatcher regardless of the traffic
violation.
After the vehicle stopped, Moon asked the driver for his
driver's license and proof of insurance, which the driver
produced. The driver was defendant Egley. Moon advised Egley
that he had stopped the vehicle because of improper lane usage
and "the intelligence information of the *** possible
manufacturing of methamphetamine." Egley replied that "his
windshield was dirty, and when he rounded the corner and the
sunlight caught the windshield, it was obstructed and he couldn't
see out of it."
Moon asked Egley to join him in the squad car, where Moon
began to write warning tickets for improper lane usage and an
obstructed view. While writing the warnings, Moon asked Egley if
he had stopped anywhere in Macomb. Egley asserted that he had
not stopped anywhere. Moon testified that he considered Egley's
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answer to be deceptive because of the information from the
dispatcher that the vehicle had stopped at the Hy-Vee.
Before completing the warning tickets, Moon advised Egley
that he was going to have his dog sniff the exterior of the
Mercury. At that time, the two passengers were still inside the
car. When the dog sniffed the outside of the car, it alerted to
the driver's side door seam, the trunk lid, and the passenger
side door seam. Moon asked the passengers to exit the vehicle,
and he searched the car's passenger area. The officer found two
bags containing a total of approximately 28 or 29 boxes of
pseudoephedrine. One bag was on the front passenger floorboard,
and the other bag was on the rear passenger floorboard. Moon
then arrested the three defendants and advised them of their
Miranda rights.
Moon stated that he was writing the warning tickets for
approximately 10 to 12 minutes. He said that about 15 to 20
minutes elapsed from the time he stopped the vehicle until he
took the defendants into custody. Moon testified that during the
stop he did not tell any of the three defendants that he was free
to go.
The officer acknowledged that the dog was not trained to
alert to pseudoephedrine. The dog was trained, however, to alert
to methamphetamine, among other illegal drugs. After he was
arrested, defendant Matous admitted to Moon "that he had used
methamphetamine sometime within the [previous] 24 hours." Moon
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speculated that the dog may have alerted to the residual odor of
methamphetamine while Matous was in the car.
After the presentation of the evidence, the court heard
closing arguments. The attorney for defendant Miller argued, in
part, that Moon was not justified in relying on the information
from the dispatcher because of what the attorney called "the
Lawson and Willock doctrine." Defense counsel cited the holdings
of People v. Lawson, 298 Ill. App. 3d 997, 700 N.E.2d 125 (1998),
and People v. Willock, No. 3--99--0227 (2000) (unpublished order
under Supreme Court Rule 23), for this doctrine. The court
overruled the prosecutor's objection to defense counsel's
reliance upon a Rule 23 decision.
At the conclusion of the suppression hearing, the court took
the matter under advisement. The court first issued an opinion
letter. Later, the court issued its written final order, in
which it incorporated the opinion letter by reference. In the
letter, the judge said, "My decision is primarily based on
[Miller's attorney's] *** 'Lawson-Willock Doctrine.' " The court
then stated the following:
"This was an investigatory stop plain and simple.
The officer candidly testified that based on the radio
dispatch he was going to stop the vehicle in which the
defendants were traveling irrespective of any traffic
violation. He issued warnings for the alleged lane
usage and obstructed windshield, but had he charged
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these violations, the driver would have been acquitted
on the driving evidence presented."
Next, the judge quoted facts and analysis from Willock, for
which he had been the trial judge. The judge noted that in
Willock, this court said that when an officer relies upon a radio
dispatch in arresting a defendant, at a suppression hearing the
State must produce evidence that the officer who issued the
dispatch had probable cause to arrest the defendant.
The judge then stated the following:
"Neither the dispatcher nor the [Hy-Vee]
pharmacist [was] called as a witness by the State to
provide proof of reliability of the source or to supply
specific, articulable facts to warrant the stop. Under
the 'Lawson-Willock Doctrine' this omission in and of
itself was fatal. I also note that given the paucity
of incriminating evidence upon which the dispatch
apparently relied, it is doubtful whether the State
could have established the reliability of its source
even with their testimony."
The court granted the motions to suppress, and the State
appealed.
ANALYSIS
The State contends that the trial court erred by granting
the motions to suppress.
Initially, we note that neither defense counsel nor the
trial court should have relied on our unpublished Rule 23 order
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in Willock as precedential authority. Rule 23(e) states that
"[a]n unpublished order of the court is not precedential and may
not be cited by any party except to support contentions of double
jeopardy, res judicata, collateral estoppel or law of the case."
166 Ill. 2d R. 23(e). In this case, defense counsel was not
citing Willock to support a contention of double jeopardy, res
judicata, collateral estoppel, or law of the case. Therefore, it
was improper for defense counsel to cite, and for the court to
consider, Willock as precedential authority. There can be no
"Lawson-Willock doctrine."
On appeal, a trial court's factual findings concerning a
motion to suppress will be upheld unless they are against the
manifest weight of the evidence. People v. McCarty, 223 Ill. 2d
109, 858 N.E.2d 15 (2006). The ultimate decision, however,
concerning whether the evidence should have been suppressed is a
question of law, which we review de novo. McCarty, 223 Ill. 2d
109, 858 N.E.2d 15.
A peace officer may conduct a lawful traffic stop based on
probable cause that the driver of the vehicle has committed a
traffic violation. Illinois v. Caballes, 543 U.S. 405, 160 L.
Ed. 2d 842, 125 S. Ct. 834 (2005). An officer also may
temporarily detain a person with less than probable cause, for
the officer's safety, if the officer has reasonable, articulable
suspicion of the defendant's criminal activity. Terry v. Ohio,
392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The United
States Supreme Court applied the principles of Terry to traffic
7
stops in Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99
S. Ct. 1391 (1979). An officer may conduct a Terry traffic stop
if the officer has a reasonable, articulable suspicion that (1)
the driver is unlicensed; (2) the vehicle is not registered; or
(3) that either the vehicle, or an occupant of the vehicle, is
subject to seizure for violation of a law. Prouse, 440 U.S. 648,
59 L. Ed. 2d 660, 99 S. Ct. 1391.
In this case, we rule that Moon had probable cause to stop
the defendants' vehicle because of a lane violation. See
Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834. In
Illinois, "[w]here *** markings are in place to define a no-
passing zone *** no driver may at any time drive *** on the left
side of any pavement striping designed to mark such no-passing
zone." 625 ILCS 5/11--707(b) (West 2004).
In the instant case, Moon observed the vehicle in question
cross one of the solid yellow center lines of the highway. Thus,
the car was on the left side of pavement striping designed to
mark a no-passing zone. See 625 ILCS 5/11--707(b) (West 2004).
Therefore, Moon had probable cause to stop the car for violation
of section 11--707(b) of the Illinois Vehicle Code (625 ILCS
5/11--707(b) (West 2004)).
Additionally, we hold that Moon was justified in conducting
a Terry stop of the vehicle because the officer had a reasonable,
articulable suspicion that occupants of the vehicle were subject
to seizure for violation of a law. See Prouse, 440 U.S. 648, 59
L. Ed. 2d 660, 99 S. Ct. 1391. Moon's reasonable, articulable
8
suspicion was based on information from the sheriff office's
dispatcher, which, in turn, came from the Hy-Vee pharmacist.
We note that the trial court in this case cited Willock and
Lawson for the general proposition that the State's failure to
call the dispatcher or the pharmacist to testify was fatal to its
case. As we noted above, the court should not have cited Willock
because it was a Rule 23 order. Furthermore, Lawson, which only
concerned an arrest, and People v. Scott, 249 Ill. App. 3d 597,
619 N.E.2d 809 (1993), which addressed both arrests and Terry
stops, do not stand for the general proposition that it is always
fatal to the State's case to fail to produce such testimony. As
we explain below, the trial court's statement concerning the
State's burden was overly broad.
As the moving party in a suppression hearing, the defendant
has the initial burden to prove that his seizure was unlawful or
impermissible, that is, that the police lacked either probable
cause to arrest or a reasonable articulable suspicion to
temporarily detain the defendant. Scott, 249 Ill. App. 3d 597,
619 N.E.2d 809. If the defendant makes a prima facie showing
that he was doing nothing unusual to justify his seizure by the
police, the burden of going forward then shifts to the State.
Scott, 249 Ill. App. 3d 597, 619 N.E.2d 809.
At the suppression hearing in this case, the court stated
that the State's failure to call the dispatcher or the pharmacist
to testify was fatal to its case. However, the court first
should have found that the defendants had made a prima facie
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showing that they were doing nothing unusual to justify their
seizure and that the burden, therefore, had shifted to the State.
In the instant case, the defendants argue that Moon was not
justified in conducting a traffic stop because the information
Moon heard over the radio from the sheriff's dispatcher came from
an anonymous tip. Put simply, the defendants are incorrect
because the source of the information was not anonymous but,
rather, was identified as the Hy-Vee pharmacy, i.e., a pharmacist
at the Hy-Vee.
We find two cases from the Illinois Appellate Court, Fourth
District, to be instructive concerning whether a source of
information is anonymous in the context of a Terry traffic stop.
In People v. Shafer, 372 Ill. App. 3d 1044, 868 N.E.2d 359(2007), a Wendy's employee called the police to report the
defendant's intoxicated behavior at the drive-through window, as
well as detailed information about the defendant's vehicle. An
officer conducted a Terry stop of the defendant's vehicle based
on the information from the Wendy's employee, as related by the
dispatcher. The Shafer court ruled that the Wendy's employee was
not an anonymous source.
In People v. Ewing, 377 Ill. App. 3d 585, 880 N.E.2d 587(2007), a veterinary clinic employee called the police to report
the defendant's intoxicated behavior at the clinic, as well as
detailed information about the defendant's vehicle. An officer
conducted a Terry stop of the defendant's vehicle based on the
information from the clinic's employee, as related by the
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dispatcher. The Ewing court also ruled that the clinic's
employee was not an anonymous source.
In the present case, a Hy-Vee pharmacist called the
sheriff's department to report the suspicious circumstances of
two of the defendants' pseudoephedrine purchases, as well as
detailed information about the defendants' vehicle. Moon
conducted a Terry stop of the defendants' vehicle based on the
information from the pharmacist, as related by the dispatcher.
Under Shafer and Ewing, we rule that the pharmacist was not an
anonymous source.
Furthermore, we note that the record shows that Moon later
met with the pharmacist who had called the dispatcher. The
pharmacist's name appears in the record in this context. It is
possible that Moon was able to ask for the pharmacist by name
because the pharmacist gave his or her name to the dispatcher.
It is equally possible that the pharmacist did not identify
himself or herself by name to the dispatcher, and the police
learned the pharmacist's name later after asking the Hy-Vee
pharmacy which pharmacist had made the call. In either event, we
cannot say that the pharmacist was an anonymous source merely
because Moon did not know the pharmacist's name at the time of
the traffic stop.
The trial court in this case relied on Lawson, 298 Ill. App.
3d 997, 700 N.E.2d 125, in finding that there was insufficient
cause to stop the defendant's car for unlawful possession of
methamphetamine chemicals. In Lawson, at the suppression
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hearing, the arresting officer testified that he heard over the
radio that a robbery had taken place in a business establishment
and that the robber had shot a man. The broadcast gave a
description of the robber. While in his squad car, the officer
saw the defendant, who fit the description of the robber, and
arrested him. The Lawson court ruled that even though the
officer was justified in relying on the radio description to
arrest the defendant, the State was required to present proof of
the basis of the radio broadcast in order to survive the motion
to suppress.
Lawson is factually distinguishable from the present case
for two reasons. In Lawson, the evidence did not include the
basis of the radio broadcast. In this case, the evidence
included the basis of the dispatcher's broadcast, i.e., a
pharmacist from Hy-Vee. Additionally, Lawson concerned the
validity of the defendant's arrest. As we noted above, the issue
in this case is the validity of the initial traffic stop rather
than the validity of the defendants' arrests.
The defendants submit that in order to make a traffic stop
based on information outside the officer's personal knowledge,
the information must have some indication of reliability, citing
People v. Sparks, 315 Ill. App. 3d 786, 734 N.E.2d 216 (2000),
and People v. Brown, 343 Ill. App. 3d 617, 798 N.E.2d 800 (2003).
Sparks and Brown, however, concerned information from an
anonymous source, and therefore the information lacked
reliability. As we stated above, this case does not concern
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information from an anonymous source. Therefore, we find Sparks
and Brown to be inapplicable to the present case.
The defendants assert that the pharmacist's information
about two individuals purchasing two boxes of pseudoephedrine and
getting into the same car did not constitute reasonable,
articulable suspicion of criminal activity because it is not a
crime to possess such a small quantity of pseudoephedrine. See
720 ILCS 648/20(c) (West 2006). We note that the statute relied
upon by the defendants was not in effect at the time of the
traffic stop. See Pub. Act 94--694, eff. January 15, 2006.
Moreover, the issue is not whether possessing the two boxes
constituted a crime but, rather, whether such possession, and the
circumstances attending their purchase, raised a reasonable,
articulable suspicion of criminal activity. See Prouse, 440 U.S.
648, 59 L. Ed. 2d 660, 99 S. Ct. 1391. We find that such
behavior was sufficient to raise such a reasonable, articulable
suspicion.
Moon testified that employees of local business
establishments had been asked to report the purchases of the
chemical components of methamphetamine. In this case, the
pharmacist reported such purchases, and the suspicious
circumstances surrounding the purchases. The pharmacist noted
that two of the defendants each purchased a box of
pseudoephedrine and got into the same car. The pharmacist's
report of the defendants' behavior formed the basis of Moon's
reasonable, articulable suspicion.
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Moreover, we recognize that pharmacists are in the business
of selling drugs to their customers. It is against a
pharmacist's financial interest to call the police to arrest
customers. It is also common knowledge that pharmacists have
been alerted to the use of pseudoephedrine in making
methamphetamine. Therefore, the fact that the defendants'
behavior raised the pharmacist's suspicion such that the
pharmacist would call the police to report the customers was an
indication of the reliability of the pharmacist's information.
Having established that the initial traffic stop was proper,
we conclude that the defendants cannot show that the evidence
should have been suppressed. Under Caballes, 543 U.S. 405, 160
L. Ed. 2d 842, 125 S. Ct. 834, (1) the dog sniff in this case was
not a search; (2) Moon was justified in searching the vehicle
after the dog alerted; and (3) Moon's seizure of the evidence was
proper because it was contraband.
In summary, Moon had probable cause to stop the vehicle for
a lane violation. Additionally, the officer had a reasonable,
articulable suspicion to conduct a Terry stop of the car because
of the information from the dispatcher. The officer's search of
the vehicle and seizure of contraband found within the vehicle
were justified after the officer's drug-sniffing dog alerted.
Therefore, we hold that the trial court erred by granting the
defendants' motions to suppress.
CONCLUSION
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For the foregoing reasons, we reverse the judgment of the
McDonough County circuit court and remand the cause for further
proceedings.
Reversed and remanded.
O'BRIEN, J., concurs.
CARTER, J., specially concurring:
I concur with the majority’s legal analysis and decision. I
am specially concurring because of the comments regarding the
trial court’s reference to People v. Willock, No. 3--99--0227
(October 6, 2000) (unpublished order under Supreme Court Rule
23). As noted in the majority opinion, the trial judge in this
case had been the trial judge in Willock, where his trial
decision was reversed. Although it is well known that an
unpublished order of the appellate court is not precedential (166
Ill. 2d R. 23(e)), it is not unusual, nor surprising, for a trial
judge to refer to one of his cases, not as precedential, but
perhaps as persuasive authority. The whole unpublished-opinion
doctrine has always raised the question, how much deference does
a trial judge give to an appellate court’s decision on an issue
that comes before him again when, like it or not, he has already
been given guidance by the appellate court on the same or similar
issues. The judge in that situation is obviously under no
obligation to follow the unpublished decision because it lacks
the force of true precedent. However, unlike the decision of a
court of another jurisdiction, which normally depends upon the
case’s legal reasoning for its influence, an unpublished decision
15
on an issue from the same trial judge tends to have a type of
hybrid extra persuasive influence. That kind of unpublished
decision of a superior court in the same judicial hierarchy
causes the trial judge to consider it in the real world. In my
experience, trial judges do not simply ignore cases from the
appellate court, especially when they were the trial judge,
regardless of whether the case was published or unpublished.
That approach is especially true when the published opinions on
the issues perhaps give less guidance than the unpublished
decision. Thus, in this case, where this panel of the appellate
court is treating an issue differently than a previous panel in
an unpublished decision, it is understandable that at the trial
level, the judge made a reference to the earlier case.
For the reasons stated, I specially concur.
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