People v. Ferris , 2014 IL App (4th) 130657 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Ferris, 2014 IL App (4th) 130657Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption DUSTIN P. FERRIS, Defendant-Appellee.
District & No. Fourth District
Docket No. 4-13-0657
Filed April 21, 2014
Held Evidence of defendant’s possession of methamphetamine was
(Note: This syllabus properly suppressed as “the fruit of the poisonous tree,” since the
constitutes no part of the vehicle in which defendant and two other people were riding was
opinion of the court but initially properly stopped for speeding, but the stop was unreasonably
has been prepared by the prolonged and resulted in an illegal search of the vehicle after the
Reporter of Decisions officer discovered that one passenger was unable to drive due to his
for the convenience of health and another had a revoked license, another passenger’s purse
the reader.) was unreasonably removed from the vehicle and searched by the
officer in his squad car, and the vehicle was improperly subjected to an
inventory search, towed, impounded, placed on hold, subjected to a
walk-around by a drug-sniffing dog, and finally searched pursuant to a
warrant.
Decision Under Appeal from the Circuit Court of Moultrie County, No. 13-CF-18; the
Hon. Dan L. Flannell, Judge, presiding.
Review
Judgment Affirmed.
Counsel on Jeremy Richey, State’s Attorney, of Sullivan (Patrick Delfino, David
Appeal J. Robinson, and David E. Mannchen (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Jude M. Redwood (argued), of Redwood Law Office, of St. Joseph,
for appellee.
Panel PRESIDING JUSTICE APPLETON delivered the judgment of the
court, with opinion.
Justice Knecht concurred in the judgment and opinion.
Justice Pope dissented, with opinion.
OPINION
¶1 The State charged defendant, Dustin P. Ferris, with unlawful possession of
methamphetamine (720 ILCS 646/60(b)(5) (West 2012)). He moved to suppress the evidence
against him. After an evidentiary hearing, the trial court granted his motion. The State filed a
certificate of impairment and a notice of appeal.
¶2 We defer to the material findings of fact the trial court made in its written decision because
those findings are not clearly erroneous. See People v. Luedemann, 222 Ill. 2d 530, 542 (2006)
(describing the dual standard of review applicable to a ruling on a motion for suppression).
Therefore, we affirm the trial court’s judgment. Indeed, the material facts appear to be
undisputed. Given the material facts, we conclude, de novo, that suppressing the evidence in
question was the legally correct decision. See id.¶3 I. BACKGROUND
¶4 A. The Hearing on the Motion for Suppression
(July 25, 2013)
¶5 1. The Testimony of Defendant
¶6 On February 15, 2013, defendant was driving a 2001 Lincoln automobile belonging to
Mindy Deweese. He had the car keys with her permission. Deweese and Gretchen Biddle were
his passengers. The purpose of the trip was to give a friend of his a ride from Paris, Illinois, to
Decatur, Illinois. They arrived in Decatur and dropped off the friend. While in Decatur,
defendant drove the car on at least one occasion when Deweese was not riding along. Deweese
knew that defendant’s clothing and other personal belongings, including his book bag, were in
the trunk of the car. After dropping off the friend, the three of them–defendant, Deweese, and
Biddle–headed back to Paris that same day.
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¶7 Initially, defendant was also the driver on the way back, but his eyes became dry and itchy.
He requested Biddle to take over driving, even though he knew she lacked a valid driver’s
license. He sat in the front passenger seat as she drove.
¶8 It was about 11:30 p.m., and they were traveling east on Illinois Route 32, when a police
officer pulled them over a couple of miles from Lovington. The area of the traffic stop was a
blacktop road, to the right of which was a shoulder 10 or 15 feet wide and then a slightly
sloping grassy ditch. The police officer claimed Biddle had been speeding.
¶9 Upon learning that Biddle’s driver’s license had been revoked, the police officer arrested
her for driving with a revoked driver’s license. He requested defendant’s permission to search
the car. Defendant said no. The police officer also requested Deweese’s permission to search
the car. She said no.
¶ 10 At the police officer’s request, defendant underwent some field sobriety tests to determine
if he was fit to drive. The police officer concluded that defendant was unfit to drive, and he
warned defendant he would arrest him if he tried to do so.
¶ 11 Next, the police officer said he was going to perform an inventory search of the car before
it was towed. Biddle’s purse was on the front passenger floorboard, and during the inventory
search, the police officer removed the purse from the car and put it in the squad car, even
though defendant told him to leave the purse in the car and even though Biddle told him several
times she wanted her purse left in the car.
¶ 12 After the inventory search, the police officer told defendant and Deweese they would have
to come to the sheriff’s office and wait for someone to pick them up. Defense counsel asked
defendant:
“Q. You testified you had to go to the Sheriff’s Department. Why did you say you
had to go there?
A. He said we had to go there and wait for our friends to come get us.
Q. Is that what you wanted to do?
A. No. We wanted to wait at the car for somebody to come get us so we could take
the car.”
A tow truck arrived and took away the car. The police took defendant, Deweese, and Biddle to
the sheriff’s office in Sullivan.
¶ 13 Defendant or Deweese called a friend, Michael Evard, who finally arrived at the sheriff’s
office around dawn on February 16, 2013. Defendant testified:
“A. We went to the tow truck company to see if we could get the car. It wasn’t open
yet, so we went to a gas station. Somebody stated she knew where the tow truck
company driver lived. We went there. He wasn’t there. His wife called him and asked
him about the car, and he said the police officer put a hold on the car and they weren’t
going to release it to us.
Q. So then what did you do?
A. So, I went back to Paris.”
¶ 14 2. The Testimony of Gretchen Biddle
¶ 15 When the police officer arrested Biddle, her purse was on the front floorboard of the
Lincoln. She never requested the police officer to get her purse. Rather, she told him several
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times she wanted her purse left in the Lincoln with defendant.
¶ 16 3. The Testimony of Michael Evard
¶ 17 Evard was a friend of defendant and Biddle. Defendant telephoned him in Paris at about 1
a.m. on February 16, 2013, and asked him to come to Sullivan and pick him up at the sheriff’s
office. Evard brought along another licensed driver. It took some time to round up this extra
driver and $117.50 for the towing fee, so it was dawn, approximately 6 a.m., when Evard
arrived in Sullivan.
¶ 18 The Lincoln was in a building at Sullivan’s Auto Body, across the street from the sheriff’s
office. Evard could see the car through a window of the building. By inquiring at a gas station,
they found out where the tow truck driver was. They went to him and told him they wanted to
pick up the car. He replied that was impossible because “there was a hold put on the car” and
they “could not pick up the vehicle until the hold was off.” Consequently, they returned to
Paris without the Lincoln.
¶ 19 4. The Testimony of Caleb Smith
¶ 20 Caleb Smith was the Moultrie County deputy sheriff who pulled Biddle over. During
Smith’s testimony, the trial court admitted, without objection by defense counsel, a digital
video disc (DVD), on which the traffic stop was recorded, as well as some documents Smith
had prepared, namely, an “MCSO [(Moultrie County Sheriff’s Office)]–Vehicle Tow Record”
and a search affidavit. For the sake of simplicity, we will combine what Smith said in his
search affidavit and what he said in his testimony.
¶ 21 At 12:14 a.m. on February 16, 2013, Smith was out in the country, monitoring the speed of
vehicles going by on Illinois Route 32. A car went by, heading east, and the radar said it was
traveling 70 miles per hour. The speed limit was 55 miles per hour.
¶ 22 He turned on the emergency lights of his squad car and pulled the car over. It was a 2001
four-door Lincoln. When the car came to a stop, it was not completely pulled over onto the
shoulder, although the shoulder was wide enough to accommodate the car. The car straddled
the fog line. Three-quarters of the car was in the eastbound lane, with the squad car behind. The
trial court asked Smith:
“Q. Is there some reason for safety you just didn’t have them pull off the road?
A. No. I did not have them pull off. There is no reason. I was behind it with my
emergency red and blues.
Q. Excuse me. So you were in the complete lane of traffic then, I assume?
A. That’s correct.”
¶ 23 The dispatcher informed Smith that Mindy Deweese was the registered owner of the car
and that her driver’s license was suspended.
¶ 24 Smith walked up to the driver’s side window, and the driver identified herself as Gretchen
Biddle. She could not produce a driver’s license; she claimed she had left it at home. Smith saw
she had two passengers, defendant and Deweese. Smith remarked to the three occupants of the
car that although they all were exposed to the same light, the pupils of the passengers’ eyes
looked contracted, whereas the pupils of Biddle’s eyes looked normal. He asked the three of
them if they had consumed any narcotics lately. All three answered no.
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¶ 25 Smith requested Deweese’s permission to search the car. She denied him permission to do
so.
¶ 26 The dispatcher informed Smith that Biddle’s driver’s license had been revoked. Smith had
Biddle get out of the car and perform some field sobriety tests, after which he decided not to
arrest her for driving under the influence (DUI). He arrested her, however, for driving while
her driver’s license was revoked. He handcuffed her, put her in the back of the squad car, and
returned to the Lincoln to speak with the two passengers.
¶ 27 Defendant was the only occupant of the car with a valid driver’s license, but having seen
his contracted pupils, Smith had reservations about his fitness to drive. Defendant told him he
had been driving earlier but that he had requested Biddle to take over driving because his eyes
had been bothering him. Smith administered to defendant a battery of field sobriety tests and
determined he was unfit to drive. Smith explained this to defendant, who then admitted taking
a couple of Vicodin pills that morning and smoking cannabis a few hours earlier.
¶ 28 In the DVD, after administering the field sobriety tests to defendant, Smith tells defendant
that, in his opinion, defendant is under the influence and is unfit to drive. Smith assures
defendant that because he was not driving at the time of the traffic stop, he is not in any trouble.
But Smith tells him he may not drive in his present condition. “So, we need to decide what you
guys are going to do with this car,” Smith tells defendant. “We’re going to have it towed,”
defendant replies.
¶ 29 According to Smith’s affidavit, he told Deweese and defendant “to call for a ride because
[he] would need to tow the vehicle since it was in the roadway and [he] had no valid or sober
driver to drive the vehicle.” While defendant and Deweese unsuccessfully tried to reach
someone by cellular phone, Smith returned to Biddle in the squad car and read her the Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Biddle said she understood the
warnings and that she was willing to talk. In her conversation with Smith in the squad car, she
surmised that defendant and Deweese were under the influence and that the reason she had
been enlisted to drive was that she was the only sober person in the car. Smith asked her if she
thought that defendant and Deweese were on prescription pills, and she answered they
probably were.
¶ 30 After radioing the dispatcher to send a tow truck, Smith returned to the Lincoln to speak
again with defendant and Deweese. He told them a “Lovington [police] officer would give
them a ride to the Moultrie County Sheriff’s Office to the lobby to wait for a ride since the car
would be towed.” Deweese said she wanted to stay with the car until the tow truck arrived.
Smith replied “that was fine but they would need to exit the car so [he] could conduct a tow
inventory of the vehicle.” Deweese “did not think that was right and thought it was pretty much
like searching the car after she told [him he] couldn’t.” Smith explained to her that the purpose
of a tow inventory “was to protect her belongings along with the tow company.”
¶ 31 Over Deweese’s protest, Smith performed the tow inventory. In the DVD, he can be seen
with a flashlight and clipboard, opening car doors and leaning into the car. A couple of times,
when he was near a bag in the trunk, defendant and Deweese “told [him] it was just clothes[,]
which [he] quickly flipped through.” While he was searching the front passenger side of the
car, he “located a purse and asked [defendant and Deweese] if it was [Biddle’s,] and they said
yes.” Then, without consulting Biddle, he took the purse out of the Lincoln and set it on the
front passenger seat of the squad car “because it appeared to have a lot of items inside.” It was
his “own policy and custom” to “always take women’s purses with [him] to the jail because
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they ha[d] valuables, money and other items they [might] need with them.” He further
explained in the suppression hearing: “[T]hat way I’m not leaving the tow company
responsible for different valuables, their money, credit cards, anything they may need to bond
out, cell phone, with the vehicle. It’s something I’ve always done.” According to Smith,
nobody told him to leave the purse in the Lincoln, and by the same token, nobody asked him to
take it out of the Lincoln, either.
¶ 32 In the form entitled “MCSO–Vehicle Tow Record,” signed by Smith, there is a section for
describing the car (e.g., the make, model, year, and vehicle identification number) and for
identifying its operator and owner, another section for describing the “Reason for Towing”
(the box corresponding to “arrest” is checked), and a third section for the “Inventory.” In this
third section, Smith describes the “Apparent Condition” of the Lincoln as “Fair,” and next to
the preprinted words “Inventory of Personal Items in Vehicle,” he notes: “Black cubs bag
containing clothes, jacket clothing and blankets in trunk.” At the bottom of the form is the
preprinted language “The above vehicle has been released to me and I found its condition to be
as indicated above.” Below this language is the signature of John Green, the tow truck driver.
Green signed the form on February 16, 2013, at 1:41 a.m., one minute after Smith completed
the inventory search of the car.
¶ 33 After John Green Towing arrived and towed away the Lincoln, Smith took Biddle to the
Moultrie County Detention Center. They arrived there at 1:51 a.m. He brought Biddle’s purse
in with him, and he and the correctional staff inventoried its contents pursuant to “Correctional
policy.” In the purse, they found 40 pseudoephedrine pills, 9 oxycodone pills, 10 coffee filters
powdered with a white substance that field-tested positively for methamphetamine, 4 Baggies
of white powder that likewise field-tested positively for methamphetamine, 2 capsules
containing white powder that field-tested positively for pseudoephedrine, a small mirror, a
razor blade, and an electric scale.
¶ 34 “[B]ecause it was reasonable to believe that there would be further drugs inside the
vehicle,” Sergeant Gary Carroll “agreed to place a hold on the vehicle” until they could obtain
a dog from Coles County. It was around 3 a.m. on February 16, 2013, when someone in the
sheriff’s office called Green and placed a hold on the car. (Evidently, because Smith had
“released” the car to Green, as noted in the MCSO–Vehicle Tow Record, the police concluded
they no longer had a sufficient custodial interest in the car justifying a second inventory search.
See People ex rel. Burmila v. One 1987 Cadillac, VIN 1G6CD118XH4317299, 206 Ill. App.
3d 407, 409-10 (1990) (“A private company then towed and stored the vehicle. According to
the tow report, the vehicle was initially eligible for release. Under these circumstances, we find
that the police did not have a sufficient custodial interest to justify the search which uncovered
the cocaine.”).) Deweese’s friends arrived to pick her up and drive the Lincoln home. While
the police were waiting for the dog to arrive from Coles County, she and her friends kept
calling about the Lincoln. When they learned that the police were holding the Lincoln until a
dog walked around it, “they were very unhappy and did not want [the police] to search the
vehicle.”
¶ 35 The dog arrived around 8:45 a.m. The prosecutor asked Smith:
“Q. And did he alert on the car?
A. Yes.
Q. And what does an alert mean?
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A. It means he smells the odor or presence of meth. In other cases it’s any other
kind of narcotics he is trained to identify.
Q. Based on that information, did you go to seek a search warrant?
A. Yes, I did.”
¶ 36 Smith obtained a search warrant, and he and Carroll executed it. This time, Smith searched
the trunk more thoroughly than he had searched it during the inventory search at the scene of
the traffic stop. In the back of the trunk, in the driver’s side corner, behind a lot of clothing, he
found a book bag. Inside the book bag, he found methamphetamine-manufacturing materials
and 479 grams of methamphetamine solution. This was the evidence that tended to incriminate
defendant and that he moved to suppress.
¶ 37 B. The Trial Court’s Decision
¶ 38 In a written decision, entered on July 26, 2013, the trial court began with two findings: (1)
the traffic stop was valid because the Lincoln had been speeding, and (2) the arrest of Biddle
was valid because she had been driving while her driver’s license was revoked.
¶ 39 In the trial court’s view, the case “hinge[d] in large measure” on Smith’s removal of
Biddle’s purse from the Lincoln after he secured her in the squad car. The court saw no need to
decide whether Biddle had affirmatively told Smith to leave the purse with defendant and
Deweese. It was undisputed that Biddle never requested Smith to remove her purse from the
Lincoln and bring it to the jail. But Smith did so anyway. The court found: “The officer’s
decision to remove the purse was based upon a combination of department policy and the
officer’s individual particular course of dealing in such situations.”
¶ 40 The trial court held that Smith’s removal of the purse from the Lincoln was a seizure of the
purse and that, in the absence of a request to remove the purse from the Lincoln, the seizure
was unreasonable. Because the seizure of the purse was unreasonable, so was the inventory
search of the purse at the jail, the court reasoned. The contraband the police discovered during
the inventory search of the purse led them to put a hold on the Lincoln, walk a dog around it,
obtain a warrant, and ultimately search the Lincoln pursuant to the warrant. “[T]herefore,” the
court concluded, “the hold on the vehicle was improper and unjustified and the results of the
search pursuant to the search warrant [had to] be suppressed.”
¶ 41 II. ANALYSIS
¶ 42 A. Defendant’s Standing To Claim a
Violation of the Fourth Amendment
¶ 43 The threshold question is whether defendant has standing to object to any violation of the
fourth amendment (U.S. Const., amend. IV) in the circumstances of this case. In this context,
we are not using the term “standing” in the ordinary sense of having a “personal stake in the
outcome of the controversy” (Wolinsky v. Kadison, 114 Ill. App. 3d 527, 530 (1983)), but in
the more specialized sense of the defendant’s personally having a fourth-amendment right that
the government violated. Fourth-amendment rights are personal, and the government violates a
defendant’s fourth-amendment rights by invading the defendant’s own legitimate expectation
of privacy. United States v. Payner, 447 U.S. 727, 731 (1980). If all the government does is
invade someone else’s legitimate expectation of privacy, the defendant lacks standing to
invoke the exclusionary rule of fourth-amendment jurisprudence. Id.-7-
¶ 44 The State is correct that defendant had no legitimate expectation of privacy as to Biddle’s
purse (see Rawlings v. Kentucky, 448 U.S. 98, 106 (1980)), but he had a legitimate expectation
of privacy as to his book bag, which was in the trunk of the car (see People v. Manke, 181 Ill.
App. 3d 374, 378 (1989)). It is true that the police obtained a warrant to search the car and its
contents, including the book bag. Even so, obtaining a search warrant does not confer legality
upon searches and seizures preceding the issuance of the warrant. People v. Scaramuzzo, 352
Ill. 248, 253 (1933). If the initial search or seizure is unlawful, it “can form [no] basis for the
issuance of a search warrant[,] and evidence so obtained is inadmissible.” People v. Bowen,
164 Ill. App. 3d 164, 177 (1987). See also People v. Koniecki, 135 Ill. App. 3d 394, 401 (1985).
¶ 45 To be entitled, then, to the suppression of the evidence the police found in his book bag,
defendant must show he has standing to object to an initial violation of the fourth amendment
that, under the principles of Wong Sun v. United States, 371 U.S. 471 (1963), tainted the
subsequently issued search warrant. If defendant’s own fourth-amendment rights were
untouched by any previous illegality, he himself would have no basis for challenging the
search warrant. See 6 Wayne R. LaFave, Search and Seizure § 11.4, at 324-25 (5th ed. 2012)
(“[I]t must be cautioned that a defendant *** can prevail on a ‘fruit of the poisonous tree’ claim
only if he has standing regarding the violation which constitutes the poisonous tree.”).
¶ 46 According to the supreme court, standing to claim a violation of the fourth amendment
depends on whether “[the] defendant has a reasonable expectation of privacy in the area
searched or in the items seized.” People v. Kidd, 178 Ill. 2d 92, 136 (1997). See also People v.
Johnson, 114 Ill. 2d 170, 191 (1986) (“The fourth amendment protection against unreasonable
government search and seizure extends only to individuals who have a reasonable expectation
of privacy in the place searched or the property seized.”). “The question of whether a defendant
has established a legitimate expectation of privacy sufficient to permit him to contest a search
or seizure is a question of law[,] and our review is de novo.” People v. Rosenberg, 213 Ill. 2d
69, 77 (2004).
¶ 47 Because a traffic stop is a seizure under the fourth amendment (People v. Bunch, 207 Ill. 2d
7, 13 (2003)), Smith seized Deweese’s car by pulling it over. Defendant does not challenge the
trial court’s finding that Biddle was speeding and that Smith therefore had probable cause to
pull her over. See Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter, the
decision to stop an automobile is reasonable where the police have probable cause to believe
that a traffic violation has occurred.”). Nevertheless, even though the seizure of a car is lawful
in its inception, the seizure can subsequently violate the fourth amendment by being
unreasonably prolonged. Illinois v. Caballes, 543 U.S. 405, 407 (2005); People v. Cummings,
2014 IL 115769, ¶ 18.
¶ 48 Does defendant have standing to argue that the police violated the fourth amendment by
towing and placing a hold on Deweese’s car, thereby unreasonably prolonging the seizure of
the car? It depends on whether he had a legitimate expectation of privacy as to the car. See
Rosenberg, 213 Ill. 2d at 77; Kidd, 178 Ill. 2d at 136; Johnson, 114 Ill. 2d at 191; People v.
Davis, 93 Ill. App. 3d 217, 226 (1981).
¶ 49 True, defendant had no ownership interest in Deweese’s car. But property ownership is
merely “a factor to be considered in determining whether an individual has standing to test the
constitutionality of a search and seizure”; it is “not dispositive.” Kidd, 178 Ill. 2d at 135. The
supreme court has held:
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“Other factors relevant in determining the existence of a reasonable expectation of
privacy include whether the defendant was legitimately present in the area searched;
whether the defendant had a possessory interest in the area or the property seized;
whether the defendant had previously used the area searched or the area seized;
whether the defendant had the ability to control the property or to exclude others from
using it; and whether the defendant had a subjective expectation of privacy in the
property. [Citation.] The question whether a defendant has a reasonable expectation of
privacy in the area searched or in the items seized must be answered in light of the
totality of the circumstances of the particular case. [Citation.]” Id. at 135-36.
¶ 50 Defendant was legitimately present in Deweese’s car, and he had a possessory interest in
his own book bag, clothing, and other personal belongings, which were stored in the trunk.
Deweese had given him the keys to the car and had allowed him to drive it on his own personal
errand. He had driven the car in Decatur without her riding along. Deweese could not have
legally driven the car, considering that she lacked a valid driver’s license, and therefore, during
the road trip, she was dependent on defendant as the only licensed driver. By his physical
possession of the keys, he had the ability to exclude others from using the car, and apparently,
by the same token, he had the ability to allow someone else to use the car, since Deweese did
not object when he requested Biddle to take over driving. According to defendant’s testimony,
which the trial court was entitled to believe, he originally was driving, and it was at his own
request that Biddle took over driving. Defendant was the one who told Smith, “We’re going to
have [the car] towed.” He further demonstrated a subjective expectation of privacy as to the car
by refusing Smith permission to search the car.
¶ 51 Because Deweese, a nondriver, had more or less put defendant in charge by handing over
to him the car keys and because she had allowed him to stuff the trunk of the car with his
belongings and embark on a rather long trip for his own personal purposes, defendant’s
expectation of privacy as to the car was reasonable. It is not an expectation that “society”
would regard as baseless or irrational. Id. at 135. Defendant was not someone whose only
significance was that he occupied a passenger’s seat. He was not like the passengers in Rakas
v. Illinois, 439 U.S. 128, 148 (1978), whose only connection to the vehicle was that they were
“ ‘legitimately on [the] premises.’ ” While holding, in Rakas, that legitimate presence was not
enough, the Supreme Court disavowed any intention to hold that a passenger had to own the
vehicle, or even have a possessory interest in the vehicle, to invoke the exclusionary rule and
challenge a search of the vehicle. Id. at 149 n.17. Ownership and a possessory interest are
factors, but they are not dispositive. Kidd, 178 Ill. 2d at 135-36. All the Supreme Court
required was that the passenger have “[a] legitimate expectation of privacy in the areas of the
car which were searched.” Rakas, 439 U.S. at 149 n.17. Someone who was simply a
passenger–“a passenger qua passenger”–“normally” would have no “legitimate expectation of
privacy” in, for example, “the trunk of an automobile.” Id. at 148-49.
¶ 52 We have held, however, that if a passenger had a set of keys to the car and was storing his
clothes in the car during a long road trip, he had a legitimate expectation of privacy as to the
car. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000); see also People v. Taylor, 245 Ill. App.
3d 602, 611 (1993) (“Any of us traveling for an extended period of time in a car, in which we
stored our belongings, would expect a certain amount of privacy over the duration of that
trip.”). Granted, the trips in Sparks and Taylor were a lot longer than the trip in the present
case. The car in Sparks had come from Texas (Sparks, 315 Ill. App. 3d at 792), and the car in
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Taylor was on its way back to Colorado (Taylor, 245 Ill. App. 3d at 603), whereas, by
comparison, it is 81 miles between Paris and Decatur. So, the present case is somewhere
between Rakas and Sparks. But it is closer to Sparks than to Rakas. The length of the trips in
Sparks and Taylor explained why the passengers (like defendant) had clothing and luggage in
the trunks of the vehicles. If the owner hands over to someone the keys to her car and allows
him to use the trunk as his traveling wardrobe, he has a legitimate expectation of privacy as to
the car, regardless of whether he has a legally enforceable possessory interest in the car. See
Rakas, 439 U.S. at 143 (“[A]rcane distinctions developed in property and tort law between
guests, licensees, invitees, and the like, ought not to control.”). It is true that, under property
law, Deweese, as the titleholder to the car, had the right to exclude anyone from the car and to
invite others into the car and allow them to store their luggage in the trunk, right next to the
items already in the trunk. But the same apparently was true of the owners of the vehicles in
Sparks and Taylor. For fourth-amendment purposes, the legitimate expectation of privacy is
broader than property law. Id. at 143, 149 n.17. One can have a legitimate expectation of
privacy without being entitled to an injunction in civil court.
¶ 53 In sum, defendant was more than a mere passenger; he was more than someone who
occupied a passenger’s seat. Under the totality of the circumstances, he had a legitimate
expectation of privacy as to Deweese’s car, an expectation that society would accept as
reasonable. Therefore, he has standing to object to an unreasonably prolonged seizure of the
car. See Rosenberg, 213 Ill. 2d at 77; Kidd, 178 Ill. 2d at 136; Johnson, 114 Ill. 2d at 191;
Davis, 93 Ill. App. 3d at 226. If the towing of the car was an unreasonable prolongation of its
seizure, defendant was not required to remove his book bag from the trunk before the car was
towed away, contrary to the dissent’s argument, because he was entitled to expect that the car
would not be towed in the first place.
¶ 54 B. Did the Police Unreasonably Prolong the Seizure of the Car?
¶ 55 Having concluded, de novo, that defendant has standing to challenge a seizure of the car
(see Rosenberg, 213 Ill. 2d at 77), we take up the next question: whether the seizure of the car
was indeed unreasonably prolonged (see Caballes, 543 U.S. at 407; Cummings, 2014 IL
115769, ¶ 18).
¶ 56 “Caballes links the reasonableness of a traffic stop’s duration to the reason for the stop.”
Id. ¶ 19. In the present case, the reason for the traffic stop was, initially, speeding, and soon
Smith became aware of an additional traffic violation: Biddle’s driving while her driver’s
license was revoked. Once Smith arrested Biddle and put her in the back of the squad car, his
business was accomplished, and his seizure of the Lincoln should have ended–unless he had a
legitimate noninvestigatory reason for prolonging his seizure of the car, that is, unless his
towing of the car was a reasonable exercise of his community-caretaking function as a police
officer. See People v. Nash, 409 Ill. App. 3d 342, 347 (2011) (“An impoundment must either
be supported by probable cause or be consistent with the police role as ‘caretaker’ of the streets
and completely unrelated to an ongoing criminal investigation.”).
¶ 57 There must be a standard police procedure authorizing the towing of the car in the first
place. Colorado v. Bertine, 479 U.S. 367, 376 n.7 (1987); People v. Clark, 394 Ill. App. 3d
344, 349 (2009); United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013)
(“ ‘[d]iscretion as to impoundment is permissible so long as that discretion is exercised
according to standard criteria and on the basis of something other than suspicion of evidence of
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criminal activity’ ” (quoting United States v. Jackson, 682 F.3d 448, 454 (6th Cir. 2012)));
United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (“Among those criteria which must
be standardized are the circumstances in which a car may be impounded.”); 3 Wayne R.
LaFave, Search and Seizure § 7.3(c), at 825 (5th ed. 2012). Otherwise, in the unbridled
exercise of his or her discretion, the police officer could opt for a police tow in order to create
the occasion for an inventory search–which really would be an investigatory search in the
guise of an inventory search. See Florida v. Wells, 495 U.S. 1, 4 (1990). Freewheeling
discretion enables pretense. There must be regulatory safeguards against pretense in the
fulfillment of community-caretaking functions, such as the impoundment of vehicles. See id.¶ 58 In the two federal cases the State cites, Bertine, 479 U.S. at 368 n.1, and South Dakota v.
Opperman, 428 U.S. 364, 365 (1976), municipal ordinances authorized the towing of the
vehicles. And in the Illinois case the State cites, People v. Hundley, 156 Ill. 2d 135, 136 (1993),
section 4-203(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, ¶ 4-203(d))
authorized the towing. In the present case, it is unclear what statute or other standard police
procedure authorized the towing of the Lincoln, a mechanically sound vehicle that was
attended by its owner. Section 4-203 of the Illinois Vehicle Code (625 ILCS 5/4-203 (West
2012)) is entitled “Removal of motor vehicles or other vehicles; Towing or hauling away,” and
none of its subsections apply to the facts of this case. Section 11-1302 of the Illinois Vehicle
Code (625 ILCS 5/11-1302 (West 2012)) is entitled “Officers authorized to remove vehicles,”
and none of its subsections are applicable, either. As a matter of law, taking defendant and
Deweese to the sheriff’s office to wait for friends did not justify towing the car. See Clark, 394
Ill. App. 3d at 348 (“[T]he fact that [the] defendant’s car would be left unattended is not a
sufficient reason for impoundment unless the car would be illegally parked.”).
¶ 59 The “MCSO–Vehicle Tow Record” has a box for “Arrest” in the section entitled “Reason
for Towing.” But towing the vehicle in every case in which the driver is arrested would be
unreasonable. Duguay, 93 F.3d at 353 (“[I]mpoundment based solely on an arrestee’s status as
a driver, owner, or passenger is irrational and inconsistent with ‘caretaking’ functions. Under
either Detective Waldrup or Detective Adams’ policies, towing is required any time the
arrestee is carted off to jail, regardless of whether another person could have removed the car
and readily eliminated any traffic congestion, parking violation, or road hazard.”).
¶ 60 The Supreme Court has stated: “The authority of police to seize and remove from the
streets vehicles impeding traffic or threatening public safety and convenience is beyond
challenge.” Opperman, 428 U.S. at 369. Granted, the Lincoln, with the squad car behind it, was
obstructing traffic on Illinois Route 32 during the traffic stop. The Lincoln was three-quarters
of the way over the fog line, in the eastbound lane. That just happened to be where Biddle came
to a halt when Smith pulled her over. Smith was unable to give any reason for failing to have
her pull completely over onto the shoulder and out of the way of traffic. As one can see by
watching the DVD of the traffic stop, the shoulder of the highway was of ample width, and the
car easily could have been driven a few feet over so that it was completely on the shoulder.
Smith admitted as much in his testimony. As far as we know, it was not illegal to leave a
vehicle parked on the shoulder of Illinois Route 32, provided that the vehicle was removed
within 24 hours. See 625 ILCS 5/4-203(c) (West 2012). There would have been no danger of
defendant’s driving the Lincoln in his impaired state, or of Deweese’s driving it in her
unlicensed state, because Smith had them both taken to the sheriff’s office to await the arrival
of an alternative driver.
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¶ 61 If the justification of the police tow was removing an obstruction to traffic, that
justification seems inconsistent with common sense, considering that Smith could have had
Biddle pull all the way over in the first place or, if he failed to do that, the car easily could have
been driven or pushed the rest of the way onto the shoulder. In People v. Buffo, 202 Ill. App. 3d
240, 242 (1990), the appellate court stated:
“[W]e believe that the possibility of an arrest resulting from a routine traffic stop is
sufficiently high that the police should pull a vehicle over to a legal parking space or, at
least, to a point in the road at which the vehicle will not obstruct traffic. Having failed
to do so, [the police officer] could not take advantage of that failure to enter [the]
defendant’s car on the pretext of an exigent circumstance.”
Thus, by the logic of Buffo, it was Smith’s obligation to have Biddle pull the car all the way
over onto the shoulder at the initiation of the traffic stop, and because he failed to do so, the
State cannot reasonably rely on illegal parking as a justification for the community-caretaking
function, i.e., the police tow. See id. A community-caretaking function has to be reasonable
under the circumstances, not pretextual.
¶ 62 The State argues that even if illegal parking did not justify the police tow, defendant is in
no position to complain “[s]ince defendant suggested and agreed to have the car towed.” The
State appears to rely on a principle analogous to invited error. “Simply stated, a party cannot
complain of error *** to which that party consented.” In re Detention of Swope, 213 Ill. 2d
210, 217 (2004). But defendant never consented to a police tow. Neither did Deweese. Here is
what happened, as shown in the DVD. After administering the field sobriety tests to defendant
and determining he was unfit to drive, Smith told him, “You need to decide what you’re going
to do with this car.” Defendant replied, “We’re going to have it towed.” He did not thereby
invite, suggest, or consent to a police tow. Rather, he said, “We’re going to have it towed.”
(Evidently, he or Deweese had a cell phone.) A police tow prolonged the seizure; a private tow
would not have done so.
¶ 63 In sum, the record appears to contain no evidence of a standard police procedure
authorizing a police tow in these circumstances, as opposed to just moving the vehicle out of
the lane of traffic. Because the police tow was an exercise of unguided discretion, it
unreasonably prolonged the seizure of the car after the initial traffic stop. See Caballes, 543
U.S. at 407; Wells, 495 U.S. at 4; Bertine, 479 U.S. at 375, 376 n.7; People v. Gipson, 203 Ill.
2d 298, 304 (2003); Clark, 394 Ill. App. 3d at 349; Duguay, 93 F.3d at 351; LaFave, supra
§ 7.3(c), at 825.
¶ 64 Afterward, the police further prolonged the seizure by placing a hold on the car while
awaiting the arrival of the dog. The State cites no authority holding that if the police find
contraband in the driver’s purse, they may refuse to relinquish the car to its owner while
waiting several hours for the arrival of a drug-sniffing dog. Even if the police tow was a
legitimate caretaking function and therefore a reasonable prolongation of the seizure, it does
not follow that the subsequent hold on the car, lasting several hours, likewise was reasonable.
¶ 65 C. Fruit of the Poisonous Tree
¶ 66 Under the doctrine known as “the fruit of the poisonous tree,” a violation of the fourth
amendment is considered to be, metaphorically, the poisonous tree, and any evidence the
government obtained by exploiting that violation is subject to suppression as fruit of the
poisonous tree. People v. Henderson, 2013 IL 114040, ¶ 33. The Supreme Court has explained
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how to determine whether evidence is fruit of the poisonous tree. The question is “whether,
granting establishment of the primary illegality, the evidence to which instant objection is
made has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” (Internal quotation marks omitted.) Wong
Sun, 371 U.S. at 488. In other words, to use a different metaphor, “a court must consider
‘whether the chain of causation proceeding from the unlawful conduct has become so
attenuated or has been interrupted by some intervening circumstance so as to remove the
“taint” imposed upon that evidence by the original illegality.’ ” Henderson, 2013 IL 114040,
¶ 33 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).
¶ 67 If the police had not towed the car and placed a hold on it, they never would have had the
opportunity to walk a dog around the car, and they never would have acquired probable cause
to support the issuance of a search warrant. In our de novo review, we find no attenuation or
interruption of the causal sequence extending from the unreasonable towing of the car to the
issuance of the tainted search warrant. See United States v. Carter, 573 F.3d 418, 422 (7th Cir.
2009); United States v. Herrera-Gonzalez, 474 F.3d 1105, 1111 (8th Cir. 2007); United States
v. Johns, 891 F.2d 243, 244 (9th Cir. 1989). Therefore, we uphold the suppression of the
evidence. It is fruit plucked from the poisonous tree.
¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 70 Affirmed.
¶ 71 JUSTICE POPE, dissenting.
¶ 72 Because I believe the police tow of Deweese’s vehicle was reasonable under the
circumstances, I respectfully dissent.
¶ 73 The majority concedes defendant “had no legitimate expectation of privacy as to Biddle’s
purse.” Supra ¶ 44. However, the majority recasts the issue and focuses instead on whether
“defendant [had] standing to argue that the police violated the fourth amendment by towing
and placing a hold on Deweese’s car, thereby unreasonably prolonging the seizure of the car.”
Supra ¶ 48.
¶ 74 Assuming defendant, a passenger in the vehicle at the time of the stop, had an expectation
of privacy in his bag, I question whether that expectation continued into the next day, after
defendant voluntarily left his bag in a vehicle he did not own, knowing the vehicle was going to
be towed. Regardless, I disagree with the majority’s position it was improper for the police to
have the vehicle towed.
¶ 75 Police are explicitly empowered to seize and remove from the streets any vehicle that
impedes traffic or threatens public safety and convenience pursuant to their
community-caretaking authority. People v. Nash, 409 Ill. App. 3d 342, 348 (2011) (citing
Opperman, 428 U.S. at 369 (authority of police to remove vehicles impeding traffic or
threatening public safety is beyond challenge)). The majority concedes Deweese’s vehicle was
“obstructing traffic on Illinois Route 32” as it was “three-quarters of the way over the fog line,
in the eastbound lane.” Supra ¶ 60. An illegally parked car is a sufficient reason to order a tow.
See People v. Mason, 403 Ill. App. 3d 1048, 1054 (2010) (the fact the defendant’s car would be
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left unattended without the tow is an insufficient reason for impoundment unless the vehicle
would be parked illegally); Clark, 394 Ill. App. 3d at 348. I would find the tow of the vehicle
consistent with police community-caretaking functions.
¶ 76 The majority, citing People v. Buffo, finds it was the officer’s “obligation to have Biddle
pull the car all the way over onto the shoulder.” Supra ¶ 61. However, the language the
majority relies on in Buffo is dicta and unsupported by case law. See Buffo, 202 Ill. App. 3d at
242. Moreover, that case did not involve a police tow of the defendant’s vehicle. Instead, in
Buffo, an officer entered the defendant’s vehicle to move it from its illegally parked location
and discovered a weapon on the floorboard. Buffo, 202 Ill. App. 3d at 241. The defendant filed
a motion to suppress and the State unsuccessfully argued the fact the vehicle was illegally
parked was an exigent circumstance justifying the officer’s entry into the vehicle. Buffo, 202
Ill. App. 3d at 242.
¶ 77 Here, the issue was not the officer’s entry into the vehicle. Instead, the question is the
reasonableness of the tow. Defendant failed field sobriety tests and Deweese did not have a
license. Thus, no one at the scene was able to drive the vehicle. The DVD of the stop shows the
police exhibited a great deal of patience and afforded defendant and Deweese time to make
arrangements to have the vehicle moved. However, they were ultimately unable to get it done
themselves. It was only at that point Smith arranged for the tow. While the majority
characterizes Officer Smith’s decision to have the vehicle towed “an exercise of unguided
discretion” (supra ¶ 63), it was certainly preferable to leaving the scene where the vehicle
posed a hazard to traffic and trusting defendant or Deweese not to drive away.
¶ 78 Based on the totality of the circumstances, I would find the towing of the vehicle was
reasonable and did not result in an unreasonably prolonged seizure of the vehicle. The hold
was placed on Deweese’s vehicle only after drugs were discovered in Biddle’s purse.
Thereafter, the officers applied for and received a search warrant. Accordingly, I would
reverse the trial court’s grant of defendant’s motion to suppress in this case.
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