People v. Pulido , 2017 IL App (3d) 150215 ( 2017 )

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People v. Pulido, 2017 IL App (3d) 150215
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAVIER PULIDO, Defendant-Appellant.
District & No. Third District
Docket No. 3-15-0215
Filed August 16, 2017
Decision Under Appeal from the Circuit Court of Will County, No. 13-CF-1294; the
Review Hon. Amy M. Bertani-Tomczak, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on Robert J. Kerr, of Law Offices of Robert Kerr, LLC, of Hinsdale, for
Appeal appellant.
James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
Lawrence M. Bauer, and Mark A. Austill, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McDADE delivered the judgment of the court, with
opinion.
Justices Lytton and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant, Javier Pulido, appeals his conviction, arguing that the trial court erred in
denying his motion to suppress evidence recovered from a search of his vehicle. We reverse.
¶2 FACTS
¶3 The State charged defendant with unlawful possession of methamphetamine with intent to
deliver (720 ILCS 646/55(a)(1), (a)(2)(F) (West 2012)) after narcotics were found in his
vehicle on June 11, 2013.
¶4 Defendant filed a motion to suppress the evidence obtained from the traffic stop on the
basis that he was illegally detained and the vehicle in which he was driving was illegally
searched. Subsequently, the State filed a motion in limine to admit evidence of a transaction
between defendant and an undercover Illinois State trooper six days before the traffic stop.
Although the motions were handled in a different order, for clarity, we discuss the evidence
adduced from the hearing on the State’s motion in limine first.
¶5 I. Motion in limine June 5, 2013, Transaction
¶6 Sergeant Gil Gutierrez, an Illinois state trooper, testified that he was undercover and met
defendant near the Illinois-Iowa border on June 5, 2013. The purpose of the meeting was to
purchase methamphetamines from defendant. According to Gutierrez, he received information
from a confidential informant and was given defendant’s telephone number.
¶7 Gutierrez contacted defendant by telephone and arranged to meet with him. Defendant
arrived in a 1998 tan Dodge minivan with Washington plates. When Gutierrez first observed
defendant, the hood of the minivan was up and defendant was standing at the front of the
vehicle. The two met in person and exchanged greetings. Defendant told Gutierrez to take a
small tube of methamphetamine located “on the hood” of the minivan. Gutierrez did not see
defendant remove the tube from any part of the minivan before placing it on the hood of the
vehicle. No money was exchanged, and Gutierrez left the area with the drugs. Defendant was
not detained.
¶8 Gutierrez later provided information of the transaction to Detective Mike Coppolillo but
could not recall whether he provided Coppolillo with defendant’s name or just the description
of the vehicle.
¶9 Defendant objected to the admission of the June 5, 2013, transaction on the basis that it was
other-crimes evidence. Defendant argued that the transaction occurred six days before
defendant’s eventual arrest. The trial court admitted the evidence, acknowledging it was
prejudicial but finding that its probative value outweighed any prejudice.
¶ 10 II. June 11, 2013, Traffic Stop and Search
¶ 11 Detective Coppolillo testified that he was assigned to a multi-jurisdictional task force,
NARCINT. On June 11, 2013, Coppolillo was contacted by Sergeant Gutierrez, who relayed
information that defendant would be traveling to Illinois with a large quantity of narcotics.
Coppolillo was told the vehicle was a tan Dodge minivan with a Washington registration. On
cross-examination, Coppolillo testified that he was mistaken when he said that he had
information on defendant. Coppolillo only had information on the vehicle description and the
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plates. Coppolillo did not know who was driving the vehicle, where the suspected drugs may
have been located, or when the suspected narcotics were placed in the vehicle. Coppolillo
forwarded this information to Trooper Degraff about 30 minutes prior to the traffic stop.
¶ 12 Degraff testified that he communicated with NARCINT agents on June 11, 2013. Degraff
met with the agents at a truck stop near I-80. The agents provided Degraff with information
about a vehicle, its license plate, and the type of drugs suspected to be inside the vehicle.
Degraff forwarded this information to Illinois state trooper Josh Korando (who was working
on I-80) and asked him to stop the vehicle.
¶ 13 Korando testified that around 7 p.m. on June 11, 2013, he was informed by Degraff that a
tan Dodge minivan with Washington plates was carrying illegal narcotics. Korando did not
have a warrant for defendant’s arrest. Korando also did not have any information about the
driver of the vehicle. Korando did not know what type of drugs were potentially involved or
where inside the vehicle the suspected narcotics were located.
¶ 14 About an hour after receiving this information, Korando initiated a traffic stop of
defendant’s vehicle for speeding along I-80. Korando testified that he had tested and verified
that his light detection and ranging device (LIDAR) was working properly at the start of his
shift. The LIDAR showed that defendant was traveling seven miles per hour above the posted
speed limit. Korando asked defendant about his travel plans and defendant told Korando that
he was driving from Washington to New York. Korando asked for and received defendant’s
driver’s license. According to Korando, defendant was sweating, but he did not observe any
furtive movements. Korando also did not notice any unusual odors coming from defendant’s
vehicle. He could see inside defendant’s vehicle, but did not observe any contraband. Korando
then asked defendant to accompany him into his squad car.
¶ 15 While defendant and Korando spoke inside the squad car, Degraff arrived on the scene
(about two minutes after the stop was initiated) with his canine, Rico. Degraff testified that he
had training in canine recognition of narcotics and narcotics interdiction. Degraff had been
partnered with Rico since February 2012. Rico trained at the Illinois State Police Academy
from February to May 2012 to detect the odor of narcotics. Rico had participated in about 50
“real world” narcotics investigations. Rico is a passive alert dog and will alert by a change in
body posture and breathing rate. Rico will give a final confirmation by sitting, laying, or
standing staring. Rico was certified as a narcotics investigation canine in May 2012. The
certification was valid for one year, but had expired May 2013, right before the June 11, 2013,
search.
¶ 16 According to Degraff, he and Rico trained twice a month for 10 hours each day at different
locations and diverse environments. Rico had broken his leg in October 2012, and did not train
again until January 2013. Degraff did not keep records on Rico’s accuracy in the field. Degraff
stated that Rico had never alerted to a training blank (a room or vehicle that has never
contained drugs).
¶ 17 While Korando and defendant were sitting inside Korando’s squad car, Degraff deployed
Rico and performed a free-air sniff of defendant’s vehicle. Rico alerted on the driver’s side
door of the vehicle. Degraff interpreted this to mean there was an odor of narcotics.
¶ 18 As Degraff performed the free-air sniff, Korando ran defendant’s information through Law
Enforcement Agencies Data System (LEADS) and determined that defendant had a valid
driver’s license and no outstanding warrants. Korando then issued a speeding warning to
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defendant for driving seven miles per hour over the speed limit. The warning was not presented
at the motion to suppress.
¶ 19 When Rico alerted on defendant’s vehicle, Korando asked defendant if he had illegal drugs
in his vehicle, and defendant said that he did not. Korando noticed that defendant began
sweating profusely and his carotid artery pulsed noticeably. Korando asked defendant if he
could search his vehicle. According to Korando, defendant consented to a search.
¶ 20 A video recording of defendant’s conversation with Korando was admitted into evidence.
The video appears to malfunction at the time defendant gave his alleged consent to search his
vehicle. The video does not conclusively show defendant gave consent to search his vehicle.
However, Korando testified that defendant gave him verbal consent.
¶ 21 Korando then gave Degraff a “thumbs up.” Both Korando and Degraff (who had worked
together previously) testified that they interpreted a “thumbs up” to mean that the driver had
consented to the search. Although Degraff never confirmed with Korando that defendant
consented to the search beyond seeing the “thumbs up,” Degraff began searching the vehicle.
Korando also assisted in the search. Both troopers searched the inside of the vehicle, as well as
the engine compartment, but did not find any narcotics. Neither trooper observed anything
unusual about the engine compartment. The search lasted around 15 minutes. Approximately
27 minutes and 17 seconds elapsed from the time Korando initiated the stop until the end of the
search. Throughout the free-air sniff and the search, defendant remained seated inside
Korando’s squad car.
¶ 22 According to Degraff, when he and Korando completed a search of the vehicle, he
contacted NARCINT agents and informed them of the search results. Although the officers
failed to find any narcotics, Degraff believed narcotics could be hidden in the vehicle.
According to Degraff, a NARCINT agent then made the decision to relocate the vehicle to the
Channahon police department for a further search.
¶ 23 Coppolillo testified that he was near the scene waiting in his vehicle while Korando and
Degraff searched defendant’s vehicle. He made the decision to relocate defendant and the
minivan to the Channahon police department as it had begun raining and due to safety
concerns. Despite the troopers’ failure to recover any narcotics from the search, defendant and
his vehicle were transported to the Channahon police department. About 35 minutes elapsed
from the time defendant was pulled over and the time he arrived at the Channahon police
department.
¶ 24 According to Coppolillo’s police report, Degraff redeployed Rico to search defendant’s
vehicle at the Channahon police department at 8:44 p.m. Rico alerted at the backseat, and
agents searched the vehicle. At this time, Coppolillo asked Inspector Tim Wherry and Trooper
Diaz to interview defendant.
¶ 25 Wherry testified that he interviewed defendant at the Channahon police department.
Although defendant said that he understood English, Wherry asked Diaz to translate. The
officers asked defendant for consent to search the vehicle, and Diaz presented a Spanish side of
the consent to search form to defendant. Although Coppolillo’s report stated that Rico was
redeployed at 8:44 p.m., the form shows that defendant signed his consent at 8:50 p.m.
¶ 26 When the NARCINT agents searched defendant’s vehicle, they found tubes wrapped with
black tape from the vehicle’s air filter. Inside the tubes was a substance that later tested positive
for methamphetamines.
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¶ 27 After hearing the parties’ arguments, the trial court found the evidence showed that
Korando properly stopped defendant for speeding. Degraff arrived at the scene while the stop
was ongoing, and Rico alerted to narcotics. The trial court noted that Rico’s certification had
expired, but found that went to the weight of the evidence. The court also found that defendant
consented to a search of his vehicle on I-80 and Korando notified Degraff of the consent. The
court noted that no drugs were found during the first search and the vehicle was moved due to
rain and safety issues. The court found, “I think moving the vehicle is proper under all the
circumstances.” The court concluded “I am not going to quash the drugs.” However, the court
quashed defendant’s arrest on I-80 and suppressed statements defendant made as a result of the
arrest. The written order granted defendant’s motion to quash arrest and suppress statements,
but denied defendant’s motion to suppress the seizure of his vehicle and the evidence
recovered during the search.
¶ 28 The cause proceeded to a bench trial where the evidence mirrored that adduced during the
hearings on the motion in limine and motion to suppress. Ultimately, the court found defendant
guilty, and sentenced defendant to 15 years’ imprisonment.
¶ 29 ANALYSIS
¶ 30 On appeal, defendant argues that the trial court erred in partially denying his motion to
suppress. Defendant argues that (1) the initial stop for speeding was unlawful, (2) the traffic
stop was unreasonably prolonged, and (3) the officers lacked probable cause to search his
vehicle on I-80 and again at the Channahon police department. Upon review, we find that
although the officers’ testimony establishes that the order to stop defendant on the road was
given prior to an observed traffic offense, he was speeding at the time he was actually pulled
over and his detention was, therefore, supported by a lawful traffic stop. We also find that the
free-air sniff did not unduly prolong the encounter because the dog was already near the scene
of the orchestrated stop. Finally, we hold that any probable cause the officers might have
developed during the course of the stop on I-80 dissipated when they failed to find any
narcotics or hidden compartments during the first hand search of defendant’s vehicle.
Therefore, we hold that the search should have ended at this point and the officers acted
improperly by relocating the vehicle to the Channahon police department for a second search.
¶ 31 We review the trial court’s ruling on a motion to suppress evidence under a two-part test.
People v. Harris, 228 Ill. 2d 222, 230 (2008). The trial court’s factual findings are entitled to
deference and will be reversed only if they are against the manifest weight of the evidence. Id.
The ultimate ruling of whether reasonable suspicion or probable cause exists and whether
suppression is warranted is reviewed de novo. Id.
¶ 32 “[A] traffic stop is analogous to a Terry investigatory stop, and therefore, the
reasonableness of police conduct during a traffic stop may be judged by reference to Terry’s
‘dual inquiry.’ ” Id. at 238 (quoting People v. Gonzalez, 204 Ill. 2d 220, 228 (2003)). The two
prongs of this inquiry are (1) whether the stop was justified at its inception and (2) whether the
officer’s actions during the course of the stop were reasonably related in scope to the
circumstances that initially justified the stop. Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
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¶ 33 I. Was the Stop Justified at Its Inception?
¶ 34 Defendant initially contends that the traffic stop was not justified at its inception. Because
Korando testified that defendant was speeding when he pulled him over, we find the stop
lawful.
¶ 35 Generally, stopping a vehicle based on a suspected violation of the law constitutes a
seizure, even if the stop is for a brief period of time and for a limited purpose. People v. Jones,
215 Ill. 2d 261, 270 (2005) (citing Whren v. United States, 517 U.S. 806, 809-10 (1996)). For a
traffic stop to comport with the reasonableness requirement of the constitutional guarantees,
the officers must have at least “ ‘reasonable, articulable suspicion’ ” that a violation of traffic
law has occurred. People v. Hackett, 2012 IL 111781, ¶ 20 (quoting Gonzalez, 204 Ill. 2d at
227). This means that officers must have “a particularized and objective basis for suspecting
the particular person stopped” was violating a traffic law. (Internal quotation marks omitted.)
Prado Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1687 (2014) (quoting
United States v. Cortez, 449 U.S. 411, 417 (1981)). If reasonable suspicion is lacking, the
traffic stop is unconstitutional and evidence obtained as a result of the stop is generally
inadmissible. See People v. Sutherland, 223 Ill. 2d 187, 227 (2006).
¶ 36 Here, Korando testified that he had tested and verified that his LIDAR device was working
properly at the start of his shift. The LIDAR device showed defendant was traveling seven
miles per hour above the posted speed limit. Defendant, therefore, violated section 11-601(b)
of the Illinois Vehicle Code (625 ILCS 5/11-601(b) (West 2012)). Korando’s decision to stop
defendant’s vehicle was lawful at its inception.
¶ 37 II. Did the Deployment of Rico Unreasonably Prolong the Stop?
¶ 38 Having found the initial stop of defendant’s vehicle was proper due to the traffic violation,
we must determine, under the second prong of Terry, whether the officers’ conduct
impermissibly prolonged the duration of the detention or independently triggered the fourth
amendment, thereby rendering the seizure unlawful. Harris, 228 Ill. 2d at 244. Defendant
contends that the canine sniff impermissibly prolonged the traffic stop along I-80. Because the
sniff occurred while Korando was still performing the duties related to the initial purpose of the
stop, we find the sniff did not impermissibly prolong the encounter.
¶ 39 A suspicionless canine sniff conducted during a lawful traffic stop does not independently
trigger the fourth amendment, so long as it does not unreasonably prolong the duration of the
traffic stop. Illinois v. Caballes, 543 U.S. 405, 407-08 (2005). The duration of a traffic stop is
analyzed under the totality of the circumstances approach, which considers the brevity of the
stop and whether the police acted diligently during the stop. People v. Baldwin, 388 Ill. App.
3d 1028, 1032 (2009).
¶ 40 The tolerable duration of police inquiries in the traffic-stop context is determined by the
seizure’s “mission”—to address the traffic violation that warranted the stop (Caballes, 543
U.S. at 407) and attend to related safety concerns (Rodriguez v. United States, 575 U.S. ___,
___, 135 S. Ct. 1609, 1614 (2015)). Beyond determining whether to issue a traffic ticket, an
officer’s mission includes “ordinary inquiries incident to [the traffic] stop.” Caballes, 543 U.S.
at 408. Typically such inquiries involve checking the driver’s license, determining whether
there are outstanding warrants against the driver, and inspecting the automobile’s registration
and proof of insurance. See Delaware v. Prouse, 440 U.S. 648, 658-60 (1979).
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¶ 41 Here, Korando pulled defendant over for speeding. After obtaining defendant’s
information, Korando and defendant returned to Korando’s squad car so that Korando could
run the information through LEADS and write defendant a warning. Before Korando finished
writing defendant a warning and receiving the confirmation from LEADS, Degraff arrived on
the scene and conducted the free-air sniff. After Rico alerted on the vehicle, Korando was
informed by radio that defendant’s LEADS check was clear. A free-air sniff conducted during
a lawful traffic stop does not violate the fourth amendment, as long as it is done, as it was here,
within the time reasonably required to complete the mission of the initial traffic stop. Caballes,
543 U.S. at 407.
¶ 42 III. Did the Officers Have Probable Cause to Search Defendant’s Vehicle?
¶ 43 Having found that the free-air sniff did not unreasonably prolong the traffic stop, we now
consider whether Rico’s alert constituted probable cause to search defendant’s vehicle.
Although we find that Rico’s positive alert provided the officers with probable cause to search
defendant’s vehicle on I-80, we find that such probable cause dissipated after the officers’
initial 15-minute hand search of the vehicle did not reveal any evidence of narcotics or any
evidence of a hidden compartment within the vehicle. Therefore, we hold that the officers
improperly transported defendant’s vehicle to the Channahon police department for a second
search.
¶ 44 The fourth amendment to the United States Constitution protects against unreasonable
searches and seizures without a warrant. People v. James, 163 Ill. 2d 302, 311 (1994) (citing
U.S. Const., amend. IV). The “automobile exception” is a recognized exception to the warrant
requirement. (Internal quotation marks omitted.) People v. Contreras, 2014 IL App (1st)
131889, ¶ 28. Under this exception, a police officer may, during a valid traffic stop, search a
vehicle without a warrant if probable cause has developed to believe the vehicle contains
evidence of criminal activity, such as contraband. Id. Generally, stopping an automobile for a
minor traffic violation does not justify a search of the detainee’s person or vehicle; instead, the
officer must reasonably believe he is confronting a situation more serious than a routine traffic
violation. Jones, 215 Ill. 2d at 271. The reasonableness of an officer’s conduct must be judged
based on his responsibility to prevent crime and apprehend criminals. People v. Stout, 106 Ill.
2d 77, 86-87 (1985). After an officer is in possession of facts sufficient to support probable
cause to believe that a vehicle contains contraband, the vehicle may be searched without a
warrant and the search area includes any interior compartment of the vehicle that might
reasonably contain the contraband. People v. DeLuna, 334 Ill. App. 3d 1, 17 (2002); see also
United States v. Ross, 456 U.S. 798, 806 (1982); United States v. Johns, 469 U.S. 478, 484
(1985).
¶ 45 “The probable-cause standard is incapable of [a] precise definition or quantification into
percentages because it deals with probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citing Illinois v. Gates, 462
U.S. 213, 232 (1983), and Brinegar v. United States, 338 U.S. 160, 175 (1949)). The existence
of probable cause depends upon the totality of the circumstances at the time of the arrest.
People v. Love, 199 Ill. 2d 269, 279 (2002). In reviewing whether probable cause for a search
existed, a court examines the events leading up to the search or seizure viewed from the
standpoint of an objectively reasonable law enforcement officer. Jones, 215 Ill. 2d at 274.
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¶ 46 Although the parties devote a significant portion of their briefs to discussing what
information the officers had regarding the prior drug transaction and the description of
defendant and his vehicle, the evidence adduced at the hearing on the motion to suppress
demonstrates probable cause existed to search the vehicle along I-80 based on Rico’s positive
alert to the presence of narcotics in defendant’s vehicle. A positive alert to the presence of
narcotics by a dog trained in the detection of narcotics is a permissible method of establishing
probable cause. People v. Campbell, 67 Ill. 2d 308, 315-16 (1977). Thus, Rico’s positive alert
on the vehicle established probable cause to search the vehicle along I-80, unless Rico was
shown to be unreliable.
¶ 47 Defendant attempts to defeat this probable cause showing by arguing that Rico was not
sufficiently reliable in the area of narcotics detection. Specifically, defendant alleges that
because Rico’s certification had expired a month before the time of the sniff, the State was
required (and failed) to establish Rico’s accuracy and reliability. We disagree.
¶ 48 The United States Supreme Court has articulated the test to determine “if the ‘alert’ of a
drug-detection dog during a traffic stop provides probable cause to search a vehicle.” Florida
v. Harris, 568 U.S. 237, 240 (2013). This approach employs a “ ‘flexible, common-sense
standard’ of probable cause.” Id. (quoting Gates, 462 U.S. at 239). In employing this standard,
the Harris Court noted:
“[E]vidence of a dog’s satisfactory performance in a certification or training program
can itself provide sufficient reason to trust his alert. If a bona fide organization has
certified a dog after testing his reliability in a controlled setting, a court can presume
(subject to any conflicting evidence offered) that the dog’s alert provides probable
cause to search. The same is true, even in the absence of formal certification, if the dog
has recently and successfully completed a training program that evaluated his
proficiency in locating drugs.” Id. at 246-47.
¶ 49 Here, Degraff testified that he had training in canine recognition of narcotics and in
narcotics interdiction. Degraff and Rico had been partnered since February 2012. Rico trained
at the Illinois State Police Academy from February through May 2012, to detect the odor of
narcotics. Rico was certified by the Illinois State Police as a narcotics investigation canine in
May 2012. The certification alone allows the court to “presume” (id.) that the dog was
sufficiently reliable and protects against any subsequent holding that the trial court’s
determination of reliability is manifestly erroneous.
¶ 50 Moreover, even though Rico’s certification had expired at the time of the sniff, the State
adduced additional evidence from Degraff regarding Rico’s reliability. Although Rico was out
of service for a three-month period due to a broken leg, Degraff stated that he and Rico
otherwise trained twice a month for 10 hours each day at different locations in different
environments. Degraff explained that Rico gives an “unknown response” every third or fourth
training day. However, each “unknown response” was later explained by either a residual odor
or a trainer handling narcotics and touching something in the training area. Degraff keeps
computer logs of the training. Rico participated in about 50 “real world” narcotics
investigations. Degraff did not keep records on Rico’s accuracy in the field, but Degraff
indicated that Rico never alerted to a training blank (a room or vehicle that has never contained
drugs). Based on the totality of the evidence, the State established that Rico was reliable in
determining that contraband was or at some time had been present in defendant’s car or on his
person.
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¶ 51 Having found that Rico was reliable and officers had probable cause to search defendant’s
vehicle on I-80, we now consider whether the officers had probable cause to transport the
vehicle to the Channahon police department for a second search. Because the initial hand
search revealed neither narcotics nor any evidence of a hidden compartment within the vehicle,
we conclude that the officers lacked probable cause to relocate the vehicle for a second search.
¶ 52 The fourth amendment requires that a search not continue longer than necessary to
effectuate the purposes of an investigative stop. Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion). More specifically, an investigative stop must cease once reasonable
suspicion or probable cause dissipates. See United States v. Watts, 7 F.3d 122, 126 (8th Cir.
1993); United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993) (unlawful for police to
execute search after they learn that probable cause no longer exists). Probable cause to search a
vehicle does not “dissipate” simply because it takes a long time to complete a reasonable and
thorough search of the vehicle. United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir.
2007) (affirming denial of motion to suppress when there was evidence of hidden
compartments in the vehicle and it took six hours to locate drugs during examination of the
vehicle in the highway patrol garage).
¶ 53 In the present case, Korando and Degraff searched the entire vehicle on I-80 and failed to
find any contraband. More significantly, the State failed to produce any evidence that Korando
or Degraff observed any indication that the vehicle may have had a hidden compartment that
would justify moving the vehicle to the Channahon police department for a second search. The
mere fact that Degraff believed the vehicle may have contained a hidden compartment is
insufficient to establish probable cause, as Degraff offered no evidence to support his belief.
Terry, 392 U.S. at 22 (intrusions upon constitutionally guaranteed rights must be based on
more than inarticulate hunches). There is also no evidence from the controlled exchange
between defendant and Gutierrez to suggest that the vehicle contained a hidden compartment.
Although the hood of the minivan was up and defendant was standing at the front of the vehicle
during the controlled exchange, Gutierrez never testified that he saw defendant remove the
tube of narcotics from the vehicle. Thus, when the initial search of the vehicle on I-80 was
fruitless, any probable cause dissipated and the officers no longer had any authority to continue
their search. This conclusion remains true even though Coppolillo testified that moving the
vehicle was due to weather conditions and officer safety. Critically, Coppolillo made this
decision after Korando and Degraff had completed their initial hand search.
¶ 54 In reaching this conclusion, we reject the State’s argument that probable cause was not
necessary to perform the first search or move the vehicle to the Channahon police department
for a second search. Specifically, the State argues that defendant consented to the search both
at the scene and again at the Channahon police department. Thus, the State asserts that
probable cause was unnecessary to justify the search. We discuss each search in turn.
¶ 55 As to defendant’s consent to search on I-80, it is well settled that an individual may consent
to a search conducted without a warrant, thereby eliminating the need for probable cause and a
search warrant. People v. Ledesma, 206 Ill. 2d 571, 592 (2003), overruled on other grounds by
People v. Pitman, 211 Ill. 2d 502, 513 (2004). However, “[w]hen the police rely upon consent
as the basis for a warrantless search, they have no more authority than they have apparently
been given by the voluntary consent of the defendant.” People v. Baltazar, 295 Ill. App. 3d
146, 149 (1998).
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¶ 56 The standard for measuring the scope of a suspect’s consent is that of “ ‘objective’
reasonableness,” which requires consideration of what a “typical reasonable person [would]
have understood by the exchange between the officer and the suspect.” Florida v. Jimeno, 500
U.S. 248, 251 (1991); see also Ledesma, 206 Ill. 2d at 593; People v. Vasquez, 388 Ill. App. 3d
532, 553 (2009); Baltazar, 295 Ill. App. 3d at 149-50. The scope of a search is defined by its
expressed object or purpose. Jimeno, 500 U.S. at 251; Ledesma, 206 Ill. 2d at 593. “By
indicating to the suspect the intended object of the search either directly or by revealing a
suspicion of specific criminal activity, a police officer not only ‘apprises the suspect that his
constitutional rights are being impacted, but he also informs the suspect of the reasonable
parameters of his inquiry.’ ” Ledesma, 206 Ill. 2d at 593 (quoting Baltazar, 295 Ill. App. 3d at
150).
¶ 57 In the present case, Korando asked defendant on I-80, “can we search your vehicle to make
sure there’s nothing in there that’s not supposed to be, there’s nothing illegal?” and defendant
allegedly replied “yes.” Assuming defendant did in fact respond in the affirmative, the
reasonable inference is that his consent was limited to a search of his vehicle at the site of the
stop on I-80. Thus, a reasonable person in defendant’s position would have understood that he
had authorized Korando to search his entire vehicle while it was stopped on I-80. In other
words, it is unreasonable to believe that when defendant gave his consent, he also consented to
the relocation of his vehicle for an even more invasive search. Stated another way, we do not
believe an Illinois citizen who is pulled over on a highway and subsequently consents to a
search of his vehicle intends to voluntarily and knowingly consent to have his vehicle removed
from the highway and relocated to the local police station for a further search once the initial
search on the highway is completed. The officers’ decision to relocate defendant’s vehicle in
the instant case exceeded the scope of defendant’s alleged consent along I-80.
¶ 58 As to defendant’s purported consent to search at the Channahon police department,
“consent is ineffective to justify a search when a search or entry made pursuant to consent
immediately following an illegal search, involving an improper assertion of authority, is
inextricably bound up with illegal conduct and cannot be segregated therefrom.” People v.
Kelly, 76 Ill. App. 3d 80, 86 (1979); see also People v. Gherna, 203 Ill. 2d 165, 186-87 (2003).
The officers engaged in impermissible conduct when they seized defendant’s vehicle without
probable cause and transported it to the Channahon police department for a more prolonged
and invasive search. It is of no consequence that defendant later “consented” to the second
search as the second search was inextricably bound with the illegal conduct of the officers. We
therefore conclude that defendant’s “consent” (being the fruit of an illegal assertion of
authority) cannot justify a further illegal search. Consequently, the second search pursuant to
the traffic stop performed by the officers at the Channahon police department lacked probable
cause and cannot be justified by defendant’s later consent.
¶ 59 In its brief and at oral argument, the State asserted that the probable cause for the
supplemental search in Channahon was that flowing from the prior money-less drug
transaction between defendant and undercover officers six days earlier. The proper response to
that claimed probable cause was to use the ensuing six days either to complete the drug
investigation with an actual transaction or to apply for a warrant to search defendant’s car. It
was not authorization to orchestrate a traffic stop to enable a warrantless search.
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¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, we reverse defendant’s conviction on the grounds that the trial
court erred in partially denying defendant’s motion to suppress. Because the conviction cannot
stand in the absence of any narcotics, we remand the matter to the trial court with directions to
vacate defendant’s conviction and sentence and for any further proceedings necessary. See
People v. Surles, 2011 IL App (1st) 100068, ¶ 42. In light of the fact that we are reversing
defendant’s conviction and sentence, we need not reach the remaining issues on appeal.
¶ 62 Reversed and remanded with directions.
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