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No. 2--03--1306

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

The State appeals from the order of the circuit court granting the motion of defendant, Michael Humphrey, to suppress evidence and quash arrest. We affirm.

Defendant was charged with two counts of unlawful possession of methamphetamine manufacturing chemicals (720 ILCS 570/401(a)(6.6)(A), (a)(6.6)(B) (West 2002)). Defendant filed a motion to suppress evidence and quash arrest, which the trial court granted. The State timely filed a notice of appeal and a certificate of impairment, and this appeal followed.

The only witness to testify at the hearing was Trooper Mark Fane of the Illinois State Police, who testified that, on July 22, 2003, he clocked a vehicle traveling at 94 miles per hour in a 65-mile-per-hour zone on Route I-39. As he caught up to the car, he noticed it tailgating another vehicle. He subsequently pulled the car over. As he sat in his squad behind the car, he noticed "a lot of movement" from the passenger of the car. Trooper Fane assumed that the passenger was moving his hands, although he saw only the passenger's shoulders moving. He approached the car on the passenger side and talked to defendant, the driver, through the passenger window. After he asked for defendant's license, Trooper Fane looked down at the passenger-side floorboard and noticed a small, clear plastic container holding several hundred small white tablets partially under the passenger seat and partially visible at the passenger's feet. He also saw some loose tinfoil like that used to package pills. The passenger did not answer when Trooper Fane asked what the pills were. However, when Trooper Fane asked him to hand over the container, the passenger did so and told Trooper Fane that the pills were pseudoephedrine. Trooper Fane had the passenger get out of the car and asked him what the pills were for. The passenger stated that he had gotten the pills in Wisconsin and was taking them to Missouri to make methamphetamine. Trooper Fane later removed defendant from the car and subsequently found more packages of pills scattered throughout the car. Defendant told Trooper Fane that they were taking the pills to Missouri to sell them to someone to make methamphetamine.

Trooper Fane "had not dealt with" pseudoephedrine before and "didn't know at that point if it was an arrestable offense," so he contacted his supervisor. Trooper Fane had been trained regarding traffic stops involving drugs, but he did not know what the pills were, apart from being told by defendant. He "just knew there was a large amount of them." Based on his experience and training as a police officer, he believed that the pills "could possibly be contraband." At the time he searched the car, he "was not exactly sure what the pills were." He believed that they were pseudoephedrine, based on the passenger's statement. Trooper Fane did not perform any field test on the pills before he arrested defendant, and he was not aware if there was such a test for pseudoephedrine. Trooper Fane believed that the pills could be contraband "due to the amount," which he considered to be "highly unusual."

In reviewing a ruling on a motion to suppress, this court may reverse the trial court's findings of historical fact only if they are against the manifest weight of the evidence. People v. Morquecho, 347 Ill. App. 3d 382, 386 (2004). However, we review de novo the trial court's ultimate conclusion as to the existence of probable cause or reasonable suspicion. Morquecho, 347 Ill. App. 3d at 386. The fourth amendment to the United States Constitution protects persons from unreasonable searches and seizures. People v. Jones, 215 Ill. 2d 261, 268 (2005). Generally, a search and seizure is reasonable only if the government has first obtained a warrant that authorizes the action. People v. Rucker, 294 Ill. App. 3d 218, 223 (1998). The fourth amendment is implicated in a traffic stop because stopping a vehicle and detaining its occupants constitute a seizure within the meaning of the fourth amendment, even if only for a brief period and for a limited purpose. Jones, 215 Ill. 2d at 270. A court generally analyzes a fourth amendment challenge to the reasonableness of a traffic stop under the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Jones, 215 Ill. 2d at 270. In such a situation, an officer may, under appropriate circumstances, briefly detain a person for questioning if the officer reasonably believes that the person has committed or is about to commit a crime; however, the investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Jones, 215 Ill. 2d at 270-71.

Clearly, Trooper Fane's initial stop of defendant's vehicle was supported by probable cause, not just a reasonable belief, and was therefore justified. See Jones, 215 Ill. 2d at 271. Trooper Fane testified that he clocked defendant's car traveling almost 30 miles per hour over the posted speed limit and observed defendant tailgating another car. When a police officer observes a driver violate a traffic law, the officer is justified in briefly detaining the driver to investigate the violation. People v. Reatherford, 345 Ill. App. 3d 327, 335 (2003).

However, stopping an automobile for a minor traffic violation does not by itself justify a search of the detainee or his vehicle; the officer must reasonably believe that he is confronting a situation more serious than a routine traffic violation. Jones, 215 Ill. 2d at 271. During a Terry stop, an officer may seize an object without a warrant, pursuant to the plain view doctrine. This doctrine is an established exception to the prohibition against warrantless searches that allows an officer to seize incriminating evidence that is in plain view. Rucker, 294 Ill. App. 3d at 223. This doctrine applies only when the evidence is seized incident to an arrest or is contraband. Rucker, 294 Ill. App. 3d at 223. The requirements of the plain view doctrine are: (1) the officer is lawfully in a position from which he can view the object; (2) the officer has a lawful right of access to the object; and (3) the incriminating character of the object is immediately apparent. Jones, 215 Ill. 2d at 271-72. Clearly, criteria (1) and (2) were met here. As we stated above, Trooper Fane's initial stop of defendant's vehicle was supported by probable cause and was justified. Trooper Fane also testified that, after speaking to defendant through the passenger window, he looked down at the passenger-side floorboard and saw the plastic container holding hundreds of pills partially visible at the passenger's feet. Thus, the traffic stop, and Trooper Fane's approach to the vehicle to speak to defendant, involved no fourth amendment violation, and the uncontroverted evidence showed that Trooper Fane could plainly see the container of pills on the floorboard.

However, we conclude that criterion (3) was not fulfilled, because the incriminating nature of the container of pills was not immediately apparent. Trooper Fane testified that, based on his training, he believed that the pills "could possibly be contraband," but this was "due to the amount" of pills. He did not know what the pills were, apart from being told, after he saw them and was handed the container, that they were pseudoephedrine. He was not sure, even after searching the car, if possession of the pills was an arrestable offense. This evidence does not demonstrate the immediately apparent incriminating character envisioned in the plain view doctrine. If an officer lacks probable cause to believe that an object in plain view is contraband without conducting some further search of the object, i.e., if the incriminating character of the object is not immediately apparent, the plain view doctrine cannot justify the seizure. Minnesota v. Dickerson, 508 U.S. 366, 374-75, 124 L. Ed. 2d 334, 345, 113 S. Ct. 2130, 2136-37 (1993); Jones, 215 Ill. 2d at 272. Such a conclusion does not, as the State argues, create a requirement of near certainty on the part of an officer. The "immediately apparent" or "probable cause" element does not require that an officer "know" that the item he sees is contraband or evidence of a crime; there need be only sufficient evidence to justify the reasonable belief that the defendant has committed or is committing a crime. Jones, 215 Ill. 2d 273-74. However, the reasonable belief necessary to justify a seizure is the same that would justify a finding of probable cause. People v. Haycraft, 349 Ill. App. 3d 416, 424 (2004). Here, there is no probable cause. Viewing something without understanding what one is viewing, even requiring an explanation of what one is viewing, is not plain view. It is no less "assisted view" than if Trooper Fane asked defendant to move the contents of the car around so that he could get a better view of everything.

The State bases much of its argument on Reatherford, but that case is easily distinguished. In Reatherford, the State presented testimony that the State Police received a tip from a security officer at a Wal-Mart store that the defendant and another man, both of whom were known to the officer, had purchased Sudafed and Coleman fuel, ingredients used in the manufacture of methamphetamine. The tipster also provided a description of the defendant's truck, the license plate, and the direction in which the truck was headed. Troopers found the defendant's truck and pulled it over after observing two lane violations. One trooper, Master Sergeant Todd Kilby, saw Coleman fuel and lithium batteries behind the seat in the truck. Kilby asked the passenger to exit the vehicle and began questioning him. The passenger appeared nervous and gave deceptive answers. Based on his observations, the deceptive answers, the items seen in the truck, and the tip that had been received, Kilby had the defendant removed from the truck and placed into custody. Reatherford, 345 Ill. App. 3d at 332. A subsequent search of the truck revealed over 1,100 pseudoephedrine pills. The trial court denied the defendant's motion to suppress. Reatherford, 345 Ill. App. 3d at 332.

The facts in Reatherford did not lead to an analysis under the plain view doctrine, for the simple reason that the contraband in that case was not in plain view. The pills were not found until after the troopers had questioned the suspects, removed them from the truck, and searched the truck. Instead, the troopers in Reatherford had a tip that the contraband was in the truck before they performed the traffic stop. The tip was partially verified by the items Kilby saw behind the seat. See Reatherford, 345 Ill. App. 3d at 337. The court concluded that, based on the verified tip and the observation of the other items in the truck, the troopers "had a reasonable, articulable suspicion that criminal activity was taking place." Reatherford, 345 Ill. App. 3d at 337.

We find the situation in Jones to be more on point and pertinent. In Jones, the officer initiated a traffic stop after noticing that the defendant's taillights were not working. As the defendant handed over his driver's license, the officer noticed a small wooden box in the defendant's shirt pocket. The officer either asked for the box or took it from the defendant's pocket and found a smoking pipe and marijuana inside. After removing the defendant from his car, the officer searched the car and found handguns and ammunition. Jones, 215 Ill. 2d at 265.

Our supreme court applied a plain view analysis to the officer's seizure of the wooden box. The court found that the officer "had probable cause to seize and search the box" (Jones, 215 Ill. 2d at 273), given the officer's training and experience, including at least 24 prior encounters with "one-hitter" boxes such as that seized in the case (see Jones, 215 Ill. 2d at 274-76).

The dissent argues for a practical, nontechnical definition of probable cause, quoting Texas v. Brown, 460 U.S. 730, 741, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543 (1983), for the proposition that probable cause " 'merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," [citation], that certain items may be contraband' " and that " 'it does not demand any showing that such a belief be correct or more likely true than false.' " Slip op. at 17. We have no argument with this principle. Had Trooper Fane viewed in plain sight a bag of green, leafy substance in the car and seized it, thereby revealing an illegal loaded gun beneath it, the gun would not be suppressed if the leafy substance turned out to be oregano instead of marijuana. However, if Trooper Fane did not know if any green, leafy substances were illegal and was simply interested because there was a lot of it there, it is not practical, either technically or nontechnically, for him to seize it.

The dissent would do well to cite to some authority actually involving the relationship of probable cause to the plain view doctrine instead of citing to sources speaking generally about probable cause. Indeed, the dissent fails to address the "immediately apparent" requirement other than to quote from Brown for the proposition that the choice of that phrase was an unhappy one, leading to the requirement of an unduly high degree of certainty of the incriminating character of evidence seized under the plain view doctrine. See slip op. at 17. Whatever the emotional makeup of that choice, it is still the standard used by the United States Supreme Court and the supreme court of our state. This court is not in a position to adopt a lower standard, no matter how some of us feel about the rulings of those higher courts. See People v. Denson, 139 Ill. App. 3d 914, 926 (1985).

The dissent also attempts to avoid the application of the plain view doctrine by arguing that Trooper Fane's procurement of the container of pills was not a seizure, because Trooper Fane requested, rather than ordered, that defendant's passenger hand it over. Professor LaFave, in concluding that, "in the main," the word "seizure" has not been a source of difficulty, defines "seizure" as an " 'act of physically taking and removing tangible personal property' " or " 'some meaningful interference with an individual's possessory interests' " in a piece of property. 1 W. LaFave, Search & Seizure