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No. 2--01--1358

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Erin Goeking, was charged with possession of drugparaphernalia (720 ILCS 600/3.5 (West 2000)) following a search ofher car. The State appeals the trial court's order grantingdefendant's motion to quash her arrest and suppress the evidence, contending that defendant validly consented to the search.

Troy Kindle, a Polo police officer, was on patrol when he sawdefendant's car parked on the wrong side of the street and then sawit pull away from the curb without a turn signal. Kindle made atraffic stop and ascertained the identities of defendant, who wasdriving, and her three passengers. Defendant seemed fidgety andnervous and seemed "adamant about leaving."

Kindle ran checks on all four of the car's occupants anddiscovered nothing suspicious. Defendant's eyes looked "glossy"and were red and bloodshot. In response to his question, defendantsaid that there was nothing in the car that "shouldn't be in thevehicle." Kindle had her step out of the car to see whether shewas intoxicated. He did not smell any alcohol on her breath. Kindle then explained why he had her get out of the car, issued averbal warning for the traffic violations, and told her that shewas free to go.

Defendant began walking back toward her car. Kindle thenasked her if she had any "knives, guns, drugs, dead bodies,grenades, rocket launchers, anything that shouldn't be in thevehicle." She said she did not. Kindle then asked if she had anyobjection to his searching the vehicle. She said she did not.

Defendant testified that she did not feel free to continuewalking toward the car or to drive away after the officer asked herif she had anything illegal. She did not feel she had any choicein permitting the search because the officer would become"suspicious" if she refused consent.

Kindle then searched the car and found a pen and a socketwrench containing THC residue. At about that time, defendant'smother arrived at the scene. Kindle told her that he was going totake defendant to the police station.

Defendant moved to quash the arrest and suppress the evidence. She argued that the purpose of the traffic stop was complete afterKindle issued the verbal warning and told her she was free toleave. Therefore, under People v. Brownlee, 186 Ill. 2d 501(1999), her consent was invalid because Kindle prolonged the stopmerely to try to get consent to search and she did not feel thatshe could refuse. The trial court granted the motion. The Statefiled a certificate of impairment and a timely appeal.

The State contends that the trial court erred in suppressingthe evidence. It argues that this case is distinguishable fromBrownlee because the officer expressly told defendant that shecould leave.

In reviewing a ruling on a motion to suppress, we must acceptthe trial court's factual findings unless they are against themanifest weight of the evidence. People v. Gonzalez, 324 Ill. App.3d 15, 19 (2001). If we accept the trial court's findings, wereview de novo whether suppression is warranted under these facts. People v. Gonzalez, 184 Ill. 2d 402, 411-12 (1998).

In Brownlee, defendant was a passenger in a car that policestopped for a minor traffic violation. After one of the officersreturned the driver's license and insurance card, he paused forabout two minutes, then asked for permission to search the car. The driver agreed and the subsequent search revealed marijuana. Brownlee, 186 Ill. 2d at 506-07.

The supreme court held that the purpose of the traffic stopwas complete when the officer returned defendant's license. However, the officers improperly prolonged the stop by waiting twominutes, then requesting consent to search the car. Because thedriver would not have felt free to leave under the circumstances,his consent was invalid. Brownlee, 186 Ill. 2d at 519-20.

This case is similar to Brownlee. The purpose of the stop wascomplete when Kindle issued a verbal warning about the trafficviolations, but he prolonged the stop by asking defendant whethershe had anything illegal in the car and requesting permission tosearch it.

The State argues that this case is distinguishable fromBrownlee because the officer expressly told defendant that she wasfree to leave. Thus, the subsequent conversation, including theconsent to search, was consensual. The State fears that if theofficer's express statement that the driver may go does not end theseizure and render a subsequent conversation consensual, then wewill be creating a per se rule that a consensual encounter maynever follow a traffic stop.

Brownlee held that the test was whether under all thecircumstances a reasonable person in the driver's position wouldfeel free to leave. Brownlee, 186 Ill. 2d at 520. While tellingthe driver that she is free to go is certainly a relevantconsideration, it is not dispositive. Here, the officer tolddefendant that she could leave, but then almost immediately questioned her about illegal items in the car and asked forpermission to search. Thus, the officer at best sent defendantmixed signals.

Brownlee recognizes the inherently coercive nature of atraffic stop. While the court stopped short of saying that avoluntary encounter could never follow a traffic stop, we wouldthink that such cases would be rare. It is difficult to imaginemany cases in which a motorist would voluntarily remain at thescene of a traffic stop to engage the officer in casualconversation.

In any event, we need not speculate whether under othercircumstances an encounter following a traffic stop is voluntary.The trial court here found that defendant in fact did not feel freeto leave and the State does not challenge this finding.

It is certainly reasonable to conclude that defendant did notfeel free to simply drive away from Officer Kindle. The 17-year-old defendant, with no previous experience with law enforcement,was stopped by the officer and questioned about illegal items inher car. The officer suspected that she was under the influence ofalcohol and had her step out of the car to evaluate her condition. Then, immediately after telling her that she could go, the officeragain asked her whether she had any contraband in the car and askedfor permission to search. The court could reasonably find that aperson in defendant's position would not have felt free to leave.

The evidence shows that in fact defendant did not think thatshe could leave the scene. She testified that she felt she had nochoice when asked for her consent to search. Kindle never saidthat she had the right to refuse to consent. Moreover, Kindle hadtestified that defendant initially was "adamant" about leaving. When he told her she was free to leave, she began walking towardher car. However, when he again began questioning her, sheimmediately stopped. The record supports the trial court'sdetermination that defendant did not feel she had a choice in thematter. Although the Brownlee court noted that the test whether areasonable person in the driver's position would feel free to leaveis an objective one, a driver's subjective belief is neverthelessrelevant. Brownlee, 186 Ill. 2d at 520.

Citing People v. Gherna, 325 Ill. App. 3d 157 (2001), theState argues that the officer's conversation with defendant afterthe traffic stop ended was justified by the community caretakingdoctrine. However, community caretaking does not involve aseizure. People v. Murray, 137 Ill. 2d 382, 387 (1990). InGherna, the court held that defendant was never seized. Gherna,325 Ill. App. 3d at 162. Here, it is undisputed that a seizureoccurred when Kindle effected the traffic stop. Thus, Gherna isinapplicable.

In light of its finding, the trial court could properlyconclude that defendant's consent to the search was involuntary. Accordingly, the court properly suppressed the evidence found inthe search. See Brownlee, 186 Ill. 2d at 521.

The judgment of the circuit court of Ogle County is affirmed.

Affirmed.

GROMETER and CALLUM, JJ., concur.