People v. Zayed , 49 N.E.3d 966 ( 2016 )

2016 IL App (3d) 140780
Opinion filed February 24, 2016
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2016
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellant, )
) Appeal No. 3-14-0780
v. ) Circuit No. 13-CF-2727
)
SEAF M. ZAYED, ) The Honorable
) Amy Bertani-Tomczak,
Defendant-Appellee. ) Judge, presiding.
_____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Presiding Justice O’Brien and Justice Holdridge concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 The defendant, Seaf M. Zayed, was charged with unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2012)). He filed a motion to suppress evidence, which
the circuit court granted. On appeal, the State argues that the circuit court erred when it granted
the defendant’s motion to suppress. We affirm.
¶2 FACTS
¶3 On January 9, 2014, the defendant was charged by indictment with unlawful possession
of a controlled substance. On May 5, 2014, the defendant filed a motion to suppress evidence.
In his motion, the defendant stated that he was a passenger in the back seat of a vehicle that was
stopped by a police officer on December 22, 2013. The defendant alleged that he was searched
by the police officer, but that the officer lacked probable cause and reasonable suspicion to
conduct the search. The circuit court held a hearing on the defendant’s motion on July 24, 2014.
¶4 Testimony of Deputy Lukich
¶5 Deputy Bryan Lukich testified that he was on patrol in his vehicle at around 5 p.m. on
December 22, 2013, in a residential area in Will County when he observed a silver Dodge fail to
signal a turn. He initiated a traffic stop of the vehicle, which had three occupants, one of whom
was the defendant. During the stop, Lukich had the defendant exit the vehicle. During a pat-
down frisk of the defendant, Lukich reached in the area of the defendant’s genitals. The
defendant’s pants were then unzipped and his belt undone. Lukich found two plastics bags in the
area of the defendant’s genitals, one of which contained what he believed to be crack cocaine.
¶6 On cross-examination, Lukich stated that the silver Dodge signaled its turn but did so
late, which prompted the stop. After he activated his emergency lights, Lukich said that he
noticed the back seat passenger—the defendant—move around the back seat and that the
defendant’s “head came close to the roof line of the vehicle.” Lukich explained that the
movement was such that it appeared as if the defendant was trying to stand up. It was dark
outside and Lukich’s vehicle was approximately 30 feet behind the silver Dodge.
¶7 Lukich testified that he had been trained in drug interdiction, which included identifying
odors of burnt cannabis and frequent hiding spots for drugs. Lukich also stated that when he
initially approached the silver Dodge, he smelled a very strong odor of burnt cannabis, an odor
that he had smelled hundreds of times in the past. Lukich detained the driver of the vehicle and
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asked him when cannabis had last been smoked in the vehicle. The driver responded, “earlier in
the day.”
¶8 Lukich next had the defendant exit the vehicle, as he “was concerned for [his] safety
because of [the defendant’s] movements inside the car during the traffic stop.” Lukich stated
that he “didn’t know if [the defendant] was hiding a weapon or there could be more narcotics
inside the vehicle.” Lukich stated that he conducted a pat-down search of the defendant for
weapons and narcotics. During the pat-down search, Lukich felt something that was not
consistent with human anatomy in the defendant’s genital region. The object felt like narcotics,
as it “kind of crunch[ed]” in his hands. Lukich had felt that type of object hundreds of times.
¶9 Lukich said he placed the defendant near the front of the police vehicle for illumination
purposes and asked him to unzip his pants. After the defendant complied, Lukich saw and
retrieved the plastic bag. Lukich also stated that he had observed individuals use their genital
region as a hiding place for narcotics well over a hundred times.
¶ 10 On redirect examination, Lukich stated that the defendant was approximately 5’11’’ and
240 pounds. He admitted that the head of a person that size would typically be close to the roof
of a vehicle like the silver Dodge. He also stated that the pat-down search of the defendant was
done for officer safety, but acknowledged that he did not feel anything during the pat-down that
indicated the presence of a weapon.
¶ 11 Video/Audio Recording
¶ 12 A video and audio recording of the stop was entered into evidence and played at the
hearing. The recording began with Lukich driving through a residential neighborhood in an
aggressive manner, which included failing to stop at two stop signs. As Lukich continued
through the neighborhood, he approached a silver vehicle turning right at a stop sign. The
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vehicle signaled and completed its turn. Lukich activated his emergency and initiated the traffic
stop. When the vehicle pulled over and stopped, the head of an individual wearing a wool hat
could be seen through the back window. There were no apparent movements made by this
individual.
¶ 13 Lukich approached the driver’s side of the vehicle and asked for the driver’s license and
insurance. The driver responded, but his response was inaudible on the recording. Lukich then
asked if the driver and the passengers had identification. Lukich learned that the driver did not
have a license on him. Lukich then asked the driver to step out of the vehicle, and he cuffed the
driver’s hands behind his back. He then performed a pat-down search of the driver, which
included reaching into various pockets on the driver’s clothing. He then moved the driver to the
rear of the stopped vehicle and asked the driver something about smoking. The driver’s response
was inaudible on the recording.
¶ 14 Lukich next walked to the rear passenger side of the vehicle, opened the door, and had
the defendant exit the vehicle. He told the defendant to place his hands on the vehicle and asked
the defendant something about what he had on him. While using a flashlight, Lukich then
conducted a pat-down search of the defendant, which included grabbing at the defendant’s pants
in the genital region. Lukich said that he could smell “weed” and asked if the defendant had any
on him. Next, Lukich had the defendant place his hands on his head and turn around. After
donning rubber gloves, Lukich continued his search of the defendant, which included further
grabbing of the defendant’s pants in the genital region and expressing his disbelief in the
defendant’s assertion that he did not have anything on his body. He then turned the defendant
around, handcuffed his hands behind his back, and moved him in between the silver vehicle and
the police vehicle.
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¶ 15 Lukich continued his search of the defendant’s genital region, which included pulling on
the waistband of the defendant’s underwear, eventually pulling out a plastic bag while saying
something about the defendant having cocaine in there. During this time, the defendant fidgeted
and bent over slightly, which moved his genital region slightly away from Lukich. Lukich asked
what the defendant was doing, and the defendant responded by making a comment about Lukich
whipping the defendant’s “dick” out. Lukich responded by saying something about the
defendant “stuffing shit down [his] pants.” The defendant again complained about Lukich
whipping the defendant’s “dick” out, and Lukich said that there were no cars around. However,
Lukich looked toward the road and immediately stated they would wait for the cars to pass. Nine
vehicles passed before Lukich continued his search in the defendant’s underwear. Lukich pulled
out another plastic bag from the defendant’s genital region, made an attempt to zip up the
defendant’s pants, and led the defendant to the back seat of the police vehicle. Lukich then
returned to the driver and asked something about whether there was anything else in the car and
how long ago they had smoked. The driver’s response was largely inaudible on the recording.
¶ 16 The rest of the recording of the stop was not relevant to this case.
¶ 17 On August 4, 2014, the circuit court granted the defendant’s motion to suppress, finding
that “[i]t’s the Court’s decision based upon the evidence that I’ve seen on the video and the oral
testimony and the arguments and the case law presented that the officer possibly had a right to
conduct a Terry search. I think he went way beyond that. There was no probable cause.” A
written order granting the motion was entered on September 9, 2014, and the State appealed.
¶ 18 ANALYSIS
¶ 19 On appeal, the State argues that the circuit court erred when it granted the defendant’s
motion to suppress. In support of its argument, the State contends that: (1) Lukich feared for his
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safety, so a pat-down search was justified; (2) the defendant’s furtive movements in the back seat
of the vehicle indicated that he was hiding something illegal; (3) the pat-down search provided
probable cause for a further search of the defendant; and (4) the odor of cannabis emanating from
the vehicle provided probable cause to search the defendant.
¶ 20 In reviewing a circuit court’s decision on a motion to suppress evidence, we employ a
two-part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We grant great
deference to the court’s findings of fact and will disturb those findings only if they are against
the manifest weight of the evidence. Id. However, we are free to assess those facts in light of
the issues presented and the relief sought; accordingly, we review the court’s ultimate legal
ruling on the suppression motion de novo. Id.
¶ 21 Because a traffic stop is more analogous to an investigative stop as defined in Terry v.
Ohio, 392 U.S. 1 (1968), courts generally apply the Terry principles when faced with a challenge
to the reasonableness of a traffic stop. People v. Jones, 215 Ill. 2d 261, 270 (2005). In this case,
there is no question that Lukich had probable cause to stop the silver Dodge in which the
defendant was a passenger. Without more, though, an officer in that situation lacks the authority
to conduct a search of the vehicle or its occupants. Id. at 271. “The initial stop may be
broadened into an investigative detention, however, if the officer discovers specific, articulable
facts which give rise to a reasonable suspicion that the defendant has committed, or is about to
commit, a crime.” People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000).
¶ 22 In People v. Stout, 106 Ill. 2d 77, 87 (1985), our supreme court held that when an officer
detects an odor of a controlled substance, the officer has probable cause to conduct a search of a
vehicle if testimony has been elicited that the officer has training and experience in the detection
of controlled substances. This principle has been extended to include searches of the driver
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(People v. Strong, 215 Ill. App. 3d 484, 489-90 (1991)) and passengers (People v. Boyd, 298 Ill.
App. 3d 1118, 1127 (1998); People v. Williams, 2013 IL App (4th) 110857, ¶ 34).
¶ 23 In this case, Lukich testified that when he approached the silver Dodge, he immediately
smelled a very strong odor of burnt cannabis emanating from the vehicle. He also testified that
he was trained in recognizing the smell of cannabis and had smelled the odor of burnt cannabis
hundreds of times. Pursuant to Stout and its progeny, Lukich had probable cause under these
facts to conduct a search of the defendant. Boyd, 298 Ill. App. 3d at 1127; Williams, 2013 IL
App (4th) 110857, ¶ 34. Accordingly, we hold that Lukich had probable cause to conduct the
search of the defendant. Our analysis does not end there, however, as the search itself must still
be reasonable under the fourth amendment (U.S. Const., amend. IV).
¶ 24 Strip searches are not per se unreasonable or illegal, but they do constitute an extremely
significant intrusion into the individuals’ privacy. People v. Johnson, 334 Ill. App. 3d 666, 673
(2002). The United States Supreme Court has stated:
“The test of reasonableness under the Fourth Amendment is
not capable of precise definition or mechanical application. In
each case it requires a balancing of the need for the particular
search against the invasion of personal rights that the search
entails. Courts must consider the scope of the particular intrusion,
the manner in which it is conducted, the justification for initiating
it, and the place in which it is conducted.” Bell v. Wolfish, 441
U.S. 520, 559 (1979);
See also People v. Carter, 2011 IL App (3d) 090238, ¶ 19.
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¶ 25 An examination of the four factors announced in Bell leads us to the conclusion that
Lukich’s strip search of the defendant was unreasonable. While we acknowledge that the third
factor favors the State, as Lukich obtained probable cause to conduct a search of the vehicle and
its occupants based on the odor of cannabis emanating from the vehicle, the other three Bell
factors strongly favor the defendant. To the extent Lukich even attempted to take steps to reduce
the intrusiveness of the search, those attempts on the whole were inadequate. He did wear rubber
gloves, but the search was conducted on a residential street on which numerous vehicles passed
during the stop and the search. While it was dark outside, there were streetlights providing some
illumination of the area. Lukich also positioned the defendant in front of his police vehicle’s
headlights for better visibility, which was also a position closer to the street and to the view of
the passing vehicles. Lukich exposed a significant portion of the defendant’s underwear and the
defendant showed visible discomfort during the search, which was confirmed by the defendant’s
twice-expressed concern that Lukich was going to expose his genitals during the search. Lukich
appeared either oblivious or unconcerned with these circumstances, which was evidenced by his
statement that no vehicles were around just before nine vehicles passed by. The search of the
defendant involved extremely intrusive means and it should have been performed in a manner
that respected the defendant’s privacy. Cf. id. ¶¶ 12-16 (discussing section 103-1 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/103-1 (West 2008)), which requires, inter alia, a strip
search of a person arrested for a traffic, regulatory, or misdemeanor offense to be conducted in
an area where it cannot be observed by persons not conducting the search, and finding that a strip
search conducted on a public street during daylight violated the statute). For these reasons, we
hold that Lukich failed to conduct the search in a minimally intrusive nature such that the search
was unreasonable under the circumstances. Compare Carter, 2011 IL App (3d) 090238, ¶ 20.
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¶ 26 For the foregoing reasons, we hold that the circuit court did not err when it granted the
defendant’s motion to suppress evidence.
¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Will County is affirmed.
¶ 29 Affirmed.
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