People v. Terry ( 2008 )

NO. 4-02-0864 Filed 2/26/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
CHARLES SANFORD TERRY, ) No. 02CF956
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
On the night of May 20, 2002, defendant, Charles
Sanford Terry, was the front-seat passenger in a pickup truck
pulled over by police. A search of defendant at the scene led to
immediate arrest and a charge for possession of a controlled
substance with intent to deliver (1 gram or more but less than 15
grams of a substance containing cocaine) (720 ILCS 570/401(c)(2)
(West 2002)). After an August 2002 bench trial, the trial court
convicted defendant of the charge. In September 2002, the court
sentenced him to six years in prison.
Defendant appeals, arguing the trial court erred by
denying his motion to suppress the evidence against him because
(1) police officers (a) exceeded the lawful scope of the traffic
stop by asking him if he had any illegal weapons or drugs and (b)
unconstitutionally extended his detention beyond the time neces-
sary to conduct the traffic stop; and (2) defendant's assuming a
typical search position and saying "You have a job to do" did not
constitute consent to search him. We disagree with each conten-
tion and affirm.
I. BACKGROUND
At the August 2002 hearing on defendant's motion to
suppress, Urbana police officer Jay Loschen testified that
shortly before 9:30 p.m. on May 20, 2002, he observed a pickup
truck in the parking lot of an apartment complex at 808 N.
Lincoln in Urbana. In the past, Loschen had made drug arrests at
or near 808 N. Lincoln. Loschen parked within sight of the truck
and waited for it to leave the parking lot. When he first
noticed the truck, its only occupant was the driver, later
identified as James Tinnin.
When the truck left the parking lot, defendant was a
front-seat passenger. Loschen followed the truck for a half
block before pulling it over because the rear registration light
was out. Loschen asked Tinnin for his driver's license and proof
of insurance. Loschen noticed defendant was not wearing a seat
belt and asked defendant for his name and date of birth. Loschen
did not see any weapons, drugs, or drug paraphernalia in plain
view inside the truck. As Loschen walked back to his squad car
to run a computer check on Tinnin and defendant, he called for
backup. From the squad car, Loschen saw defendant "ma[k]e
several movements in the truck as if he was hiding something."
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Specifically, Loschen described defendant as "just bouncing
around" with "his hands down by his sides."
Urbana police officer Richard Surles arrived within one
minute of Loschen's obtaining Tinnin's license. After the
computer check was completed, Loschen and Surles returned to the
truck, where Loschen told Tinnin his license was valid and handed
it back to him. Surles stood on the passenger side of the truck.
Loschen then asked Tinnin if he could speak with him outside the
truck. Tinnin agreed and got out of the truck. Loschen told
Tinnin the police had several problems with drug sales at 808 N.
Lincoln and asked Tinnin for consent to search his truck. Tinnin
consented.
During Loschen's conversation with Tinnin, defendant
got out of the truck and conversed with Surles. When Loschen
finished speaking with Tinnin, Surles was getting ready to place
handcuffs on defendant. Surles handed Loschen a small plastic
bag containing an off-white, chalky substance he had removed from
defendant's jacket pocket. The substance later tested positive
for cocaine. Loschen and Surles conducted another search of
defendant and Loschen found a small plastic bag containing a
white, powdery substance, which also tested positive for cocaine.
Loschen acknowledged he suspected drugs would be present when he
pulled the truck over because it had been parked at 808 N.
Lincoln.
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Surles testified when he arrived at the scene,
Loschen's squad car was parked behind the truck and Loschen told
Surles he was going to try to get consent to search the truck.
Both officers walked over to the truck and Surles stood approxi-
mately five feet to the rear of the passenger-side door while
Loschen spoke with Tinnin. Defendant then got out of the truck.
Surles did not ask defendant to get out of the truck or speak
with him at all before he got out of the truck. Defendant and
Surles exchanged a greeting. Surles then asked defendant if he
had any knives, guns, drugs, or needles. Defendant said he did
not. Surles then asked defendant if he could search him.
Defendant did not respond verbally. Instead, he put his hands on
the side of the truck bed and kicked his legs back into the
position in which one would be searched. Surles again asked
defendant if he could search him. Defendant said, "'You got to
go ahead and do what you got to do.'" Surles asked again if that
meant he could search defendant. Defendant replied, "'you have a
job to do'" and "'here[,] let me help you out.'" He then removed
some items from his jacket pocket and put them on the edge of the
truck, including a cellular phone, a lighter, and some medica-
tion. Defendant put his hands back on the truck and Surles began
to pat him down. Surles believed he had consent to search
defendant at that time based on defendant's statements, body
language, demeanor, and the fact he voluntarily removed items
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from his jacket.
In defendant's right jacket pocket, Surles found a
plastic bag containing a large piece of crack cocaine. Upon the
discovery, defendant said, "possession," and Surles handcuffed
him. After he was placed under arrest, Surles found a bag of
powdered cocaine in a "cargo pocket" of defendant's pants.
Surles acknowledged nothing about the traffic stop made
him fear for his safety beyond his ususal sense of caution.
Loschen did not tell Surles why he wanted to search the truck,
what his suspicions were, or what those suspicions were based
upon. Surles did not see any weapons, drugs, or paraphernalia in
plain view. Nothing about defendant caused Surles to have an
"elevated level of caution." His basis for asking defendant for
consent to be searched was because Loschen was asking for consent
to search the truck. It was not a weapons pat down. It was a
search. Surles did not know defendant before this incident.
Although the testimony of defendant's witnesses dif-
fered from that of Loschen and Surles, particularly regarding
defendant's interaction with Surles, the trial court found the
officers' testimony credible, and defendant does not challenge
the court's factual findings. We need not include a recitation
of defendant's evidence.
At the conclusion of the suppression hearing, the trial
court denied defendant's motion to suppress the evidence.
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Following an August 2002 bench trial, the court convicted defen-
dant of possession of a controlled substance with intent to
deliver (720 ILCS 570/401(c)(2) (West 2002)) and sentenced him to
six years in prison. This appeal followed.
On July 8, 2004, this court issued an order reversing
the trial court's judgment based on our conclusion the trial
court erred in denying defendant's motion to suppress. People v.
Terry, No. 4-02-0864 (July 8, 2004) (unpublished order under
Supreme Court Rule 23). On August 12, 2004 the State filed a
petition for leave to appeal with the Supreme Court of Illinois.
The supreme court issued a supervisory order on denial of the
petition for leave to appeal:
"In the exercise of this court's super-
visory authority, the Appellate Court, Fourth
District, is directed to vacate its judgment
in People v. Terry, No. 4-02-0864 (July 8,
2004). The appellate court is directed to
reconsider its judgment 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) (opinion on remand)." People v.
Terry, 221 Ill. 2d 668, 853 N.E.2d 1230
(2006) (nonprecedential supervisory order on
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denial of leave to appeal).
Pursuant to the supreme court's supervisory order, we now recon-
sider this case in light of those two Caballes decisions.
II. DENIAL OF DEFENDANT'S MOTION TO SUPPRESS
Defendant argues the trial court erred by denying his
motion to suppress evidence because his fourth-amendment rights
were violated when Surles expanded the scope of the traffic stop
by asking defendant if he had any knives, guns, drugs, or nee-
dles. We disagree.
A. Standard of Review
Reviewing a trial court's ruling on a motion to sup-
press involves mixed questions of fact and law. People v.
Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). On
review, we give great deference to the trial court's factual
findings and will reverse those findings only if they are against
the manifest weight of the evidence. Gherna, 203 Ill. 2d at 175,
784 N.E.2d at 805. However, we review the trial court's legal
determination of whether suppression is warranted under those
facts de novo. Gherna, 203 Ill. 2d at 175, 784 N.E.2d at 805.
Defendant does not argue the trial court's factual determinations
are against the manifest weight of the evidence. Thus, we accept
those determinations and address de novo defendant's legal
challenge.
B. The Traffic Stop
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Defendant contends the trial court erred by denying his
motion to suppress evidence because Surles violated his constitu-
tional right against unreasonable searches and seizures (U.S.
Const., amend. IV; Ill. Const. 1970, art. I, §6) when he turned
the traffic stop into a drug investigation by asking defendant if
he had any knives, guns, drugs, or needles. We disagree.
In People v. Caballes, 207 Ill. 2d 504, 506, 802 N.E.2d
202, 203 (2003) (hereinafter Caballes I), the defendant was
lawfully stopped for speeding. The trooper had no reasonable
suspicion the defendant's car contained contraband. While the
trooper was writing the traffic ticket, a second trooper arrived
with a drug-detection dog. Caballes I, 207 Ill. 2d at 507, 802
N.E.2d at 203. Following a walk around, the dog alerted to the
trunk and marijuana was discovered. Caballes I, 207 Ill. 2d at
507, 802 N.E.2d at 203. The trial court denied the defendant's
motion to suppress and found the defendant guilty, and the
appellate court affirmed. Caballes I, 207 Ill. 2d at 508, 802
N.E.2d at 203.
On appeal, the Illinois Supreme Court found the State
failed to justify using the canine sniff. Caballes I, 207 Ill.
2d at 509, 802 N.E.2d at 204. The court noted the officers did
not detect an odor of marijuana or observe evidence suggesting
the presence of illegal drugs. Caballes I, 207 Ill. 2d at 509,
802 N.E.2d at 204. Even though the second trooper brought the
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dog on his own volition, the court found "the police impermiss-
ibly broadened the scope of the traffic stop in this case into a
drug investigation because there were no specific and articulable
facts to support the use of a canine sniff." Caballes I, 207
Ill. 2d at 509, 802 N.E.2d at 204.
On appeal to the United States Supreme Court, the issue
centered on whether the fourth amendment required reasonable,
articulable suspicion to justify using a drug-detection dog to
sniff the exterior of a vehicle during a legitimate traffic stop.
Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at
837 (hereinafter Caballes II). Finding the initial seizure
lawful, the Court noted a stop for the issuance of a traffic
violation could "become unlawful if it [were] prolonged beyond
the time reasonably required to complete that mission." Caballes
II, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837.
The Court found the state-court proceedings indicated the stop
lasted less than 10 minutes and accepted the state court's
conclusion the length of the stop was justified by the traffic
violation "and the ordinary inquiries incident to such a stop."
Caballes II, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837.
The Supreme Court went on to state official conduct
does not constitute a search under the fourth amendment unless it
compromises a legitimate privacy interest. Caballes II, 543 U.S.
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at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. Because a
person's interest in possessing contraband cannot be deemed
legitimate, official conduct that merely reveals the possession
of contraband does not compromise a legitimate privacy interest.
Caballes II, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837. The Supreme Court concluded "the use of a well-trained
narcotics-detection dog--one that 'does not expose noncontraband
items that otherwise would remain hidden from public view,'
[citation]--during a lawful traffic stop, generally does not
implicate legitimate privacy interests." Caballes II, 543 U.S.
at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838.
Upon remand after the Supreme Court vacated Caballes I,
the Illinois Supreme Court found "the dog sniff of a vehicle does
not constitute an invasion of privacy." People v. Caballes, 221
Ill. 2d 282, 331, 851 N.E.2d 26, 55 (2006) (hereinafter Caballes
III). The supreme court adhered to the limited lockstep approach
and declined to hold the search-and-seizure clause of the Illi-
nois Constitution provided greater protection than the fourth
amendment. Caballes III, 221 Ill. 2d at 335-36, 851 N.E.2d at
57. The court concluded evidence obtained as a result of the dog
sniff was properly admitted at the defendant's trial and affirmed
his conviction. Caballes III, 221 Ill. 2d at 336, 851 N.E.2d at
57.
In People v. Gonzalez, 204 Ill. 2d 220, 235, 789 N.E.2d
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260, 270 (2003), abrogated on other grounds by People v.
Luedemann, 222 Ill. 2d 530, 548, 857 N.E.2d 187, 199 (2006), the
Illinois Supreme Court provided an analysis for determining
whether police conduct during the course of a traffic stop
satisfies the scope requirement of Terry v. Ohio, 392 U.S. 1, 21-
22, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80 (1968).
That is, was the police officer's questioning of the defendant
related in scope to the circumstances that justified the stop.
There is a growing trend in the case law that concludes the scope
requirement adopted from Terry and enunciated in Gonzalez is no
longer good law. See People v. Driggers, 222 Ill. 2d 65, 72, 853
N.E.2d 414, 418 (2006) (police action that does not unreasonably
prolong a lawful traffic stop or independently trigger fourth-
amendment concerns is not prohibited merely because it changed
the character of the stop); People v. Starnes, 374 Ill. App. 3d
329, 334, 871 N.E.2d 815, 820 (2007) (Second District: decisions
after Caballes III have recognized the Gonzalez scope requirement
is no longer viable); People v. Roberson, 367 Ill. App. 3d 193,
201, 854 N.E.2d 317, 324 (2006) (Fourth District: applying the
logic of Caballes II, a warrant check on a passenger would only
change the fundamental nature of the stop if it caused the
seizure to last longer than required for such a traffic stop or
if it infringed upon the passenger's legitimate interest in
privacy); People v. Conner, 358 Ill. App. 3d 945, 961-62, 832
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N.E.2d 442, 456-57 (2005) (First District: citing Caballes II
and Muehler v. Mena, 544 U.S. 93, 101, 161 L. Ed. 2d 299, 309,
125 S. Ct. 1465, 1471 (2005)); see also People v. Starbuck, 358
Ill. App. 3d 234, 239, 831 N.E.2d 636, 641 (2005) (Third Dis-
trict) (Schmidt, J., specially concurring) (the United States
Supreme Court has made it "abundantly clear that it has rejected
the notion that questioning, including requests for consent to
search, must be related to the initial purpose for the police
contact" and to the extent Gonzalez and other decisions hold to
the contrary, they are no longer good law). In Starnes, 374 Ill.
App. 3d at 334, 871 N.E.2d at 820, the Second District noted the
Illinois Supreme Court in Caballes III
"acquiesced in the [United States] Supreme
Court's holding that, if a traffic stop is
proper, police action that does not unreason-
ably prolong the stop or independently trig-
ger the fourth amendment is permissible even
if it goes beyond the scope of the stop. The
court unmistakably, albeit not explicitly,
abandoned the scope requirement of the Gonza-
lez test."
Applying the logic of Caballes II and III, questioning
defendant passenger here changes the fundamental nature of the
traffic stop only if "(1) it causes the seizure to last longer
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than the time reasonably required for such a traffic stop or (2)
it infringes upon the passenger's legitimate interest in pri-
vacy." Roberson, 367 Ill. App. 3d at 201, 854 N.E.2d at 324. In
our initial decision in this case, we found "no evidence showed
that Surles' questioning of defendant unreasonably prolonged
defendant's detention." Terry, slip order at 10. We will not
revisit that conclusion.
On the issue of a legitimate privacy interest, Surles
asked defendant if he had any knives, guns, drugs, or needles on
him. In this case, this question is the equivalent of asking
defendant whether he possessed items of contraband. Posing the
question does not "'compromise any legitimate interest in pri-
vacy'" because "any interest in possessing contraband cannot be
deemed 'legitimate,' and thus, governmental conduct that only
reveals the possession of contraband 'compromises no legitimate
privacy interest.'" (Emphasis in original.) Caballes II, 543
U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837, quoting
United States v. Jacobsen, 466 U.S. 109, 123, 80 L. Ed. 2d 85,
100-01, 104 S. Ct. 1652, 1661-62 (1984). Surles did not violate
defendant's privacy rights under the fourth amendment by asking
him whether he had any knives, guns, drugs, or needles.
C. Consent To Search
We also conclude defendant's conduct evinced his
consent to a search of his person. The fourth amendment guaran-
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tees "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const., amend. IV. Article I, section six, of
the Illinois Constitution also protects individuals from unrea-
sonable searches and seizures. Ill. Const. 1970, art. I, §6.
Our supreme court has interpreted the search-and-seizure clause
of the Illinois Constitution in a manner consistent with the
United States Supreme Court's fourth-amendment jurisprudence.
People v. Anthony, 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1192
(2001).
Generally, reasonableness in the fourth-amendment
context requires a warrant supported by probable cause. Katz v.
United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S.
Ct. 507, 514 (1967). However, a warrantless search does not
violate the fourth amendment if it is conducted pursuant to the
voluntary consent of the person whose person or property is
searched. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed.
2d 148, 156, 110 S. Ct. 2793, 2797 (1990), citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct.
2041, 2043-44 (1973); see also People v. Smith, 214 Ill. 2d 338,
349, 827 N.E.2d 444, 451-52 (2005) (individual's voluntary
consent eliminates the need for probable cause and a warrant),
abrogated on other grounds by Luedemann, 222 Ill. 2d at 548, 857
N.E.2d at 199.
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A defendant's consent is invalid "unless it is volun-
tary, and, to be voluntary, consent must be given freely without
duress or coercion (either express or implied)." People v.
Green, 358 Ill. App. 3d 456, 462, 832 N.E.2d 465, 471 (2005).
"Consent must be received, not extracted 'by
explicit or implicit means, by implied threat
or covert force.' Schneckloth, 412 U.S. at
228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048.
'In examining all the surrounding circum-
stances to determine if in fact the consent
to search was coerced, account must be taken
of subtly coercive police questions, as well
as the possibly vulnerable subjective state
of the person who consents.' Schneckloth,
412 U.S. at 229, 36 L. Ed. 2d at 864, 93 S.
Ct. at 2049. The voluntariness of the con-
sent is a question of fact determined from
the totality of the circumstances, and the
State bears the burden of proving the consent
was truly voluntary." Anthony, 198 Ill. 2d
at 202, 761 N.E.2d at 1192.
In Anthony, 198 Ill. 2d at 197-98, 761 N.E.2d at 1190,
a police officer approached the defendant in an alley and, after
asking him what he was doing in the area and whether he had
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anything on him that could hurt the officer or his partner,
requested his consent to a search of his person. The defendant,
nervous and with hands shaking, gave no verbal consent but merely
"assumed the position" for a pat down by spreading his legs apart
and placing his hands on top of his head. Anthony, 198 Ill. 2d
at 198, 761 N.E.2d at 1190. The officer construed the defen-
dant's actions as "nonverbal consent," searched him, and found
cocaine. Anthony, 198 Ill. 2d at 198-99, 761 N.E.2d at 1190.
The supreme court found the State failed to prove the
defendant had voluntarily consented to the search. Anthony, 198
Ill. 2d at 203-04, 761 N.E.2d at 1193. The court stated, in
part, as follows:
"The defendant may convey consent to search
by nonverbal conduct [citations], but 'mere
acquiescence to apparent authority is not
necessarily consent' [citation]. ***
***
The State would have us draw an infer-
ence *** that the defendant intended to con-
sent, not acquiesce. An equally valid infer-
ence from the defendant's ambiguous gesture
is that he submitted and surrendered to what
he viewed as the intimidating presence of an
armed and uniformed police officer who had
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just asked a series of subtly and increas-
ingly accusatory questions." Anthony, 198
Ill. 2d at 202-03, 761 N.E.2d at 1192-93,
quoting People v. Kelly, 76 Ill. App. 3d 80,
87, 394 N.E.2d 739, 744 (1979).
In this case, defendant's actions constituted more than
simply "assuming the position". His verbal and nonverbal conduct
indicated his consent was voluntary. After Surles asked defen-
dant if he could search him, defendant placed his hands on the
truck and kicked his legs back and spread them in the search
position. This conduct could be an ambiguous gesture subject to
dual inferences. However, there was not a single, ambiguous act
here.
After defendant assumed the position against the truck,
Surles again asked if he could search him. Defendant responded,
"'You got to go ahead and do what you got to do.'" Surles sought
clarification by asking, "Does that mean I can search you[?]"
Defendant responded, "'You have a job to do.'" Thereafter,
defendant said, "'here[,] let me help you out.'" He then removed
items from his coat and placed them on the truck. Defendant
again put his hands back up on the truck. Believing he received
the consent he needed, Surles began searching defendant.
The record supports the conclusion defendant consented
to be searched and Officer Surles was objectively reasonable in
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believing defendant consented. This was not a situation where
the police extracted defendant's consent by explicit or implicit
means or with threats, intimidation, or force. No credible
evidence indicated Surles asked a series of accusatory questions
or used his authority to get defendant to acquiesce and give his
consent to search. Defendant's conduct was not merely a shrug,
as in People v. Raibley, 338 Ill. App. 3d 692, 700-02, 788 N.E.2d
1221, 1229-30 (2003), or an ambiguous assumption of the position,
as in Anthony. Instead, defendant's words and conduct evinced
his voluntary consent to search.
III. CONCLUSION
The traffic stop was lawful. The questioning of
defendant was constitutionally permissible. The defendant's
consent was voluntary. The trial court's denial of defendant's
motion to suppress was not against the manifest weight of the
evidence.
Accordingly, we affirm the trial court's judgment. As
part of our judgment, we grant the State its $50 statutory
assessment against defendant as costs of this appeal.
Affirmed.
APPLETON, P.J., and TURNER, J., concur.
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