People v. McQuown ( 2011 )

NO. 4-10-0297 Opinion Filed 2/16/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
ABBY G. McQUOWN, ) No. 09CF1255
Defendant-Appellee. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
________________________________________________________________
JUSTICE TURNER delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice Pope concurred in
the judgment and opinion.
OPINION
In August 2009, the State charged defendant, Abby G.
McQuown, with the offenses of unlawful possession of a controlled
substance with intent to deliver, unlawful possession of a
controlled substance, and unlawful possession of cannabis. In
October 2009, defendant filed a motion to suppress evidence,
which the trial court granted.
On appeal, the State argues the trial court erred in
granting the motion to suppress. We affirm.
I. BACKGROUND
In August 2009, the State charged defendant with three
drug-related offenses. In count I, the State charged her with
the offense of unlawful possession of a controlled substance with
intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2008)),
alleging she knowingly and unlawfully possessed with intent to
deliver 100 grams or more but less than 400 grams of a substance
containing cocaine. In count II, the State charged her with the
offense of unlawful possession of a controlled substance (720
ILCS 570/402(a)(2)(B) (West 2008)), alleging she knowingly and
unlawfully had in her possession 100 grams or more but less than
400 grams of a substance containing cocaine. In count III, the
State charged her with the offense of unlawful possession of
cannabis (720 ILCS 550/4(b) (West 2008)), alleging she knowingly
and unlawfully had in her possession more than 2.5 grams but less
than 10 grams of a substance containing cannabis. Defendant
pleaded not guilty.
In October 2009, defendant filed a motion to suppress
evidence. Defendant alleged she was pulled over on Interstate 72
for having an obstructed view. After issuing her a written
warning, Officer Chad Larner continued questioning her. Defen-
dant declined the officer's request to consent, and the officer
told her she would have to wait for the canine unit to arrive.
Defendant claimed her arrest was unlawful and the contraband
found in her vehicle should be suppressed.
In March 2010, the trial court conducted a hearing on
the motion to suppress. Defendant testified she was pulled over
on Interstate 72 at approximately 3 p.m. on August 10, 2009. The
police officer approached from the passenger side and asked for
her driver's license, registration, and proof of insurance. The
officer indicated defendant had been stopped for having an
obstructed windshield based on air fresheners hanging on the
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rearview mirror. After taking her documents, the officer asked
her to step out of her car. He then gave her a warning citation,
which indicated it was completed at 3:12 p.m. Thereafter, the
officer asked for permission to search the vehicle "quite a few
times," but defendant declined. Defendant stated a second
officer arrived "probably 30 minutes later." She also stated a
canine unit arrived 15 to 20 minutes later. She estimated the
traffic stop had taken "at least 45 minutes" before the canine
unit arrived.
On cross-examination, defendant testified she had three
air fresheners hanging from the rearview mirror. She also had a
spray air freshener in the car.
Decatur police officer Chad Larner testified he was
conducting patrol operations on Interstate 72 in Macon County on
August 10, 2009. Larner initiated a traffic stop for an ob-
structed windshield and asked defendant for her driver's license
and proof of insurance. He then issued her a written warning
citation, which indicated the arrival time as being 3:01 p.m. and
the time of completion as 3:12 p.m. After giving defendant a
copy of the warning, Larner requested permission to search the
car. Defendant refused. At approximately 3:25 p.m., Larner
requested other officers to come to the scene. Larner testified
the canine unit arrived on the scene less than 30 minutes after
the stop occurred.
On cross-examination, Officer Larner testified he
initially decided to follow defendant's car after noticing the
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obstructed windshield caused by objects suspended from the
rearview mirror. Thereafter, defendant made "an exaggerated lane
change" without using a turn signal. When Larner pulled up
alongside her, defendant's car "quickly decreased" its speed down
to approximately 43 miles per hour, "which is a couple of miles
below the posted minimum speed." Larner stated he could see
defendant "staring" at him in her rearview mirror. When he
pulled up alongside her, "she refused to make eye contact" with
him. He found this behavior inconsistent "with the general
motoring public." Larner also said defendant "ran her fingers
through her hair pretty frequently," which he characterized as a
"grooming gesture" that could be an indicator of nervous behav-
ior.
After stopping defendant's car, Officer Larner ap-
proached the passenger side. When defendant rolled down the
window, Larner stated he was "greeted with the overwhelming smell
of an artificial air freshener." He stated the scent was va-
nilla. He noticed at least three air fresheners hanging down
from the rearview mirror. Larner also saw air fresheners "sus-
pended from the turn signal" and clipped to the air vents. A
large spray bottle of air freshener rested on the front passenger
seat. Larner stated drug traffickers often try to overwhelm the
vehicle's interior with an artificial air freshener to prevent a
drug canine from detecting the odor of contraband.
Officer Larner asked defendant if she liked the smell
of vanilla, but she responded in the negative. When defendant
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handed over her driver's license and proof of insurance, Larner
noticed her "right hand and arm were significantly trembling and
shaking." While a certain level of nervousness is expected
during a traffic stop, Larner stated defendant's nervousness did
not subside but "increasingly grew during the course of the
stop." Larner took the documents back to his squad car.
After preparing a written warning, Officer Larner
returned to defendant's car and asked her to step out to the
front of his car. Larner asked her where she was coming from,
and defendant responded Danville. When asked why she was travel-
ing to Decatur, defendant stated she was going "to visit a friend
named Tommy." She did not know where Tommy lived but stated she
was supposed to call him when she arrived. Larner stated his
suspicions were growing at this time. During this conversation,
Larner noticed defendant looking back over her shoulder several
times toward her vehicle. This also increased Larner's suspi-
cions as people transporting contraband are "very concerned"
about their vehicle. Larner also stated defendant "had a very
difficult time standing still." She even stated she was "cold."
Larner estimated the asphalt to be 115°F on that "very hot summer
day."
Larner then asked defendant to sign the written warn-
ing. When Larner handed her the clipboard, he noticed she was
"trembling and shaking." She then asked if she could sit in his
squad car to sign the warning, which she did. After signing the
warning, Larner asked defendant for consent to search her car.
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She refused. He stated he asked for consent because "it's more
convenient" than waiting for another officer to arrive at the
scene. Larner then showed her a permission-to-search form.
Defendant requested to use the phone in her car, and Larner
allowed her to do so. She entered her car, retrieved her phone,
and made a call.
At that point, Larner requested a canine unit to come
to the scene. Once the unit arrived, and with defendant standing
behind Larner's vehicle, the dog alerted on her car. A search of
the car revealed cocaine located beneath the driver's seat.
On redirect examination, Officer Larner estimated he
requested a second officer and a canine unit at around 3:25 p.m.
Officer Dailey arrived within 2 to 3 minutes, and the canine unit
arrived within 10 to 15 minutes.
Following arguments on the motion, the trial court made
oral findings. The court found Officer Larner's testimony was
credible and probable cause existed for the traffic stop. The
court also found the stop occurred at 3:01 p.m., the warning
ticket was issued at 3:12 p.m., and the canine unit arrived at
approximately 3:50 p.m. After taking the matter under advise-
ment, the court issued a written order, stating, in part, as
follows:
"There were, generally, no facts which
surfaced at the time of the stop or during
the detention that would lead to a reasonable
belief that the defendant was involved in
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more serious crimes than routine traffic
offenses. Facts which may arguably have led
to such a belief are: (1) that the defen-
dant's vehicle smelled strongly of air fresh-
ener and (2) that there were three air fresh-
eners hanging from the rearview mirror, a
bottle of air freshener on the front passen-
ger seat, and air fresheners affixed to the
air vents located inside the vehicle. These
facts must be considered in light of Officer
Larner's training suggesting that drug traf-
fickers sometimes attempt to mask the odor of
drug contraband through the use of scents
emitted from air fresheners.
The fact that the presence of, and odor
from, air fresheners may constitute reason-
able suspicion of criminal activity beyond
that of traffic violations does not conclu-
sively resolve the matter. The State bears
the burden of showing that a seizure based on
reasonable suspicion was sufficiently limited
in scope and duration to satisfy the condi-
tions of an investigative seizure. [Cita-
tions.] In the case at bar, the officer
detected the overwhelming odor of air fresh-
ener, and the presence of air fresheners in
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the defendant's vehicle almost immediately
after effecting the traffic stop. Despite
these observations, several minutes passed
before the canine unit was summoned to the
scene. As mentioned previously, the canine
unit did not arrive until 37 or 38 minutes
after the warning citation was issued. Under
these facts, the court finds that the State
has failed to meet its burden in showing that
the seizure of the defendant was sufficiently
limited in duration."
The court granted the motion to suppress. In April 2010, the
State filed a certificate of impairment. This appeal followed.
II. ANALYSIS
The State argues the trial court erred in granting
defendant's motion to suppress as Officer Larner had reasonable
suspicion to detain her car for a canine sniff. We disagree.
A. Standard of Review and Burden of Proof
In reviewing a motion to suppress on appeal, we are
presented with mixed questions of law and fact. People v. Terry,
379 Ill. App. 3d 288, 292, 883 N.E.2d 716, 720 (2008). "[The]
trial court's findings of historical fact are reviewed for clear
error, giving due weight to any inferences drawn from those facts
by the [court]." People v. Harris, 228 Ill. 2d 222, 230, 886
N.E.2d 947, 953 (2008). Great deference is accorded a trial
court's factual findings, and those findings will be reversed
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only if against the manifest weight of the evidence. People v.
Cosby, 231 Ill. 2d 262, 270-71, 898 N.E.2d 603, 609 (2008)
(quoting People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d
187, 195 (2006)).
"A reviewing court, however, remains free to undertake
its own assessment of the facts in relation to the issues and may
draw its own conclusions when deciding what relief should be
granted." Luedemann, 222 Ill. 2d at 542, 857 N.E.2d at 195.
Thus, we review the trial court's ultimate ruling as to whether
suppression was warranted de novo. People v. Oliver, 236 Ill. 2d
448, 454, 925 N.E.2d 1107, 1110 (2010).
On a motion to suppress evidence, the defendant has the
burden of proving the search and seizure were unlawful. 725 ILCS
5/114-12(b) (West 2008); People v. Barker, 369 Ill. App. 3d 670,
673, 867 N.E.2d 1021, 1023 (2007). "'However, once the defendant
makes a prima facie showing of an illegal search and seizure, the
burden shifts to the State to produce evidence justifying the
intrusion.'" People v. Reatherford, 345 Ill. App. 3d 327, 334,
802 N.E.2d 340, 347-48 (2003) (quoting People v. Ortiz, 317 Ill.
App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000)).
B. The Fourth Amendment
The fourth amendment to the United States Constitution
guarantees "[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. Similarly, the
Illinois Constitution affords citizens with "the right to be
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secure in their persons, houses, papers[,] and other possessions
against unreasonable 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-amend-
ment jurisprudence. See People v. Caballes, 221 Ill. 2d 282,
335-36, 851 N.E.2d 26, 57 (2006).
"When a police officer observes a driver commit a
traffic violation, the officer is justified in briefly detaining
the driver to investigate the violation." People v. Ramsey, 362
Ill. App. 3d 610, 614, 839 N.E.2d 1093, 1097 (2005). A stop of a
vehicle and the detention of its occupants constitutes a "sei-
zure" under the fourth amendment. People v. Jones, 215 Ill. 2d
261, 270, 830 N.E.2d 541, 549 (2005). To be constitutionally
permissible, a vehicle stop must be reasonable under the circum-
stances, and the stop will be deemed reasonable "'where the
police have probable cause to believe that a traffic violation
has occurred.'" Ramsey, 362 Ill. App. 3d at 615, 839 N.E.2d at
1098 (quoting Whren v. United States, 517 U.S. 806, 810 (1996)).
In the case sub judice, Officer Larner initiated a
traffic stop after observing defendant driving a vehicle with an
obstructed windshield. It is a violation of the Illinois Vehicle
Code to "drive a motor vehicle with any objects placed or sus-
pended between the driver and the front windshield *** which
materially obstructs the driver's view." 625 ILCS 5/12-503(c)
(West 2008). Thus, Officer Larner had probable cause to initiate
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a valid traffic stop here.
In analyzing the conduct of police officers during a
lawful traffic stop, our supreme court has looked to the United
States Supreme Court's decision in Illinois v. Caballes, 543 U.S.
405 (2005). Harris, 228 Ill. 2d at 239, 886 N.E.2d at 958.
"First, a seizure that is lawful at its in-
ception can become unlawful 'if it is pro-
longed beyond the time reasonably required'
to complete the purpose of the stop.
Caballes, 543 U.S. at 407, 160 L. Ed. 2d at
846, 125 S. Ct. at 837. Second, so long as
the traffic stop is 'otherwise executed in a
reasonable manner,' police conduct does 'not
change the character' of the stop unless the
conduct itself infringes upon the seized
individual's 'constitutionally protected
interest in privacy.' Caballes, 543 U.S. at
408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837." Harris, 228 Ill. 2d at 239, 886 N.E.2d
at 958-59.
"Thus, police conduct occurring during an otherwise lawful
seizure does not render the seizure unlawful unless it either
unreasonably prolongs the duration of the detention or independ-
ently triggers the fourth amendment." People v. Baldwin, 388
Ill. App. 3d 1028, 1033, 904 N.E.2d 1193, 1198 (2009).
The central issue in this case revolves around the
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duration principle. In looking at the length of the stop, no
bright-line rule has been adopted to indicate when a stop has
been unreasonably prolonged. Baldwin, 388 Ill. App. 3d at 1034,
904 N.E.2d at 1199. Instead, the duration of the stop must be
justified by the nature of the offense and "the ordinary inqui-
ries incident to such a stop." Caballes, 543 U.S. at 408; People
v. Driggers, 222 Ill. 2d 65, 73, 853 N.E.2d 414, 419 (2006);
People v. Koutsakis, 272 Ill. App. 3d 159, 164, 649 N.E.2d 605,
609 (1995) ("Courts must consider the purpose to be served by the
stop as well as the time reasonably needed to effectuate those
purposes."). Courts "employ a contextual, totality of the
circumstances analysis that includes consideration of the brevity
of the stop and whether the police acted diligently during the
stop." Baldwin, 388 Ill. App. 3d at 1034, 904 N.E.2d at 1199.
In this case, Officer Larner stopped defendant's
vehicle after observing an obstructed windshield. The trial
court found the stop occurred at 3:01 p.m., as noted on the
written warning. After asking defendant for her driver's license
and proof of insurance, Larner completed the warning citation at
3:12 p.m. Defendant signed the citation, but nothing indicates
Officer Larner returned her driver's license and proof of insur-
ance with the citation. Between 3:12 p.m. and 3:25 p.m., Larner
requested permission to search, but defendant refused. He called
for the canine unit at 3:25 p.m. and it arrived at approximately
3:50 p.m.
We hold the traffic stop was unduly prolonged in this
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case. The "business portion" of the stop took a little over 10
minutes, but Officer Larner did not ask for a canine unit until
13 minutes after the initial purpose of the stop had ended.
Then, the canine unit did not arrive until 25 minutes later. See
Baldwin, 388 Ill. App. 3d at 1035, 904 N.E.2d at 1199 (finding
14-minute stop was unreasonably prolonged when the initial
purpose of the stop concluded after 4.5 minutes); People v.
Ruffin, 315 Ill. App. 3d 744, 749-50, 734 N.E.2d 507, 511 (2000)
(finding the 22-minute stop was unreasonably prolonged when the
business portion took only 10 minutes). Thus, the duration of
the detention was prolonged beyond the time reasonably required
to complete the traffic stop.
The State, however, argues the evidence justified
Officer Larner's reasonable suspicion that defendant's vehicle
contained contraband, thereby allowing for further detention to
await the canine unit. The State points out the overwhelming
smell of vanilla air freshener, defendant's nervousness, her
inability to state exactly where she was heading, her frequent
looks back to her vehicle, and the fact that Interstate 72 is
known as a drug corridor.
"'The State bears the burden of showing
that a seizure based on reasonable suspicion
was sufficiently limited in scope and dura-
tion' [citation], and 'in assessing whether a
detention is too long in duration to be jus-
tified as an investigatory stop, we must
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consider whether the police diligently pur-
sued a means of investigation that was likely
to confirm or dispel their suspicions
quickly.' [Citations.]" People v. O'Dell,
392 Ill. App. 3d 979, 986, 913 N.E.2d 107,
113 (2009).
Here, the bulk of the factors supporting Officer
Larner's reasonable suspicion were known early on in the stop.
He smelled the abundance of air freshener as soon as defendant
rolled down her window. Three air fresheners were hanging down
from the rearview mirror and more were suspended from the turn
signal and clipped to the air vents. A large spray bottle of air
freshener rested on the front passenger seat. Larner also
noticed defendant was shaking and trembling when she handed over
her driver's license and proof of insurance. Yet Larner did not
request a canine unit. After he filled out the warning citation,
Larner asked defendant where she was going. She stated she was
going to meet with Tommy but was not sure where he lived.
Defendant also stated she was cold on that hot summer day and
kept looking back over her shoulder at her car. After asking
defendant to sign the citation, Larner stated she was "trembling
and shaking" in trying to do so. Still, Larner did not call for
the canine unit. Instead, he attempted to obtain defendant's
consent for approximately the next 13 minutes. It was only after
that length of time that Larner called for the canine unit, and
even then, the unit did not arrive for another 25 minutes or so.
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The length of the stop was unreasonable in this case, and the
trial court did not err in granting the motion to suppress.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
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