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No. 2--03--0636

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Felipe D. Parra, was indicted for unlawful use of a weapon (720 ILCS 5/24--1(a)(4) (West 2002)) and aggravated unlawful use of a weapon (720 ILCS 5/24--1.6(a)(1) (West2002)). He moved to quash his arrest and suppress the evidence. The trial court granted the motion. After the State's motion to reconsider was denied, the State filed a certificate of impairment andappealed. We affirm.

On August 2, 2002, Officer Jason Russell effected a traffic stop of a vehicle that had failedto activate its turn signal prior to making a turn at an intersection, failed to stop at a stop sign, andrapidly accelerated, causing its tires to screech. Defendant was the driver of the vehicle, and a passenger was also in the front seat of the car. Russell approached the vehicle, informed defendantof the reasons for the stop, and asked defendant for his driver's license and insurance information. Russell observed no furtive movements by defendant, and neither defendant nor the passenger wasacting suspiciously. As defendant opened the glove box in order to obtain his insurance information,Russell observed several purple latex gloves in the glove box. Russell asked defendant hisoccupation, and defendant replied that he was a truck driver. Russell believed that the gloves werenot job related. As defendant opened his wallet to retrieve his driver's license, Russell observed afirearm owner's identification (FOID) card in defendant's wallet.

After obtaining defendant's license and insurance information, Russell ran a computer checkand discovered that defendant's license was valid and that there were no outstanding warrants. Thecomputer check did not indicate that defendant was involved in gang activity. Russell had no otherinformation that defendant or the passenger was a gang member.

At about the same time, Russell called for backup because he suspected that a firearm wasin the vehicle. His suspicion was based on his observation of the FOID card and the latex gloves, thefact that recently he had been advised that gang members were using latex gloves during thecommission of crimes involving handguns, and the fact that the traffic stop had occurred in an areaof high gang activity. Patrolman Todd Edwards arrived on the scene, and Russell told Edwards ofhis suspicions. Russell and Edwards approached defendant's vehicle, Russell asked defendant to stepout of the car, and defendant complied. Russell asked defendant if he had any weapons or drugs onhis person. Defendant replied that he did not. Russell asked to search defendant, defendant agreed,and Russell conducted a pat-down search. He found no contraband or weapons. Russell then askeddefendant if he had any guns, drugs, or other illegal items in the vehicle. Defendant stated that he didnot. Russell asked defendant for permission to search the vehicle for such items, and defendantagreed. Russell proceeded to search the car, eventually found a gun hidden under the dashboard, andarrested defendant.

Defendant moved to quash his arrest and suppress the evidence, arguing that he wasunconstitutionally seized when Russell asked him for consent to search his person and his vehicle. The court agreed and granted the motion.

On appeal, the State argues that the questioning and search of defendant did not result in anunconstitutional seizure because the officers had a reasonable suspicion of criminal activity. Inreviewing a ruling on a motion to suppress, we reverse the trial court's findings of fact only if theyare against the manifest weight of the evidence. See People v. Rush, 319 Ill. App. 3d 34, 38 (2001). We review de novo the ultimate question of whether reasonable suspicion justified the stop and theofficer's subsequent actions. See Rush, 319 Ill. App. 3d at 38-39. Here, the material facts areundisputed, and thus we address only the ultimate question.

The temporary detention of drivers or passengers during a vehicle stop constitutes a "seizure"of "persons" within the meaning of the fourth amendment to the United States Constitution. Peoplev. Gonzalez, 204 Ill. 2d 220, 225 (2003). Therefore, vehicle stops are subject to the fourthamendment's requirement of reasonableness. Gonzalez, 204 Ill. 2d at 226. Because a traffic stop ismore analogous to a Terry investigative stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88S. Ct. 1868 (1968)) than to a formal arrest, the reasonableness of a traffic stop is analyzed underTerry principles. Gonzalez, 204 Ill. 2d at 226.

Under Terry, a law enforcement officer may, within the limits of the fourth amendment,conduct a brief investigative stop of individuals, absent probable cause to arrest, provided that theofficer has a reasonable, articulable suspicion of criminal activity. Gonzalez, 204 Ill. 2d at 227. Ifa detention exceeds what is permissible as a Terry stop, a subsequent consent to a search may befound to be tainted by the illegality. People v. Brownlee, 186 Ill. 2d 501, 519 (1999). A Terryanalysis involves a dual inquiry: (1) whether the officer's action was justified at its inception, and (2)whether it was reasonably related in scope to the circumstances that justified the interference in thefirst place. Gonzalez, 204 Ill. 2d at 228. Here, there is no issue as to the lawfulness of the initial stopof the vehicle. Rather, this appeal concerns only the lawfulness of the officer's conduct following theinitial stop. Therefore, only the second prong of the Terry analysis is at issue.

In determining whether police questioning during the course of a traffic stop satisfies thesecond prong of the Terry analysis, we follow the framework set out in Gonzalez. Under thatframework, we must first determine whether the questioning was related to the initial purpose of thestop. If so, no fourth amendment violation occurred. Gonzalez, 204 Ill. 2d at 235. If the questioningwas not reasonably related to the purpose of the stop, we must next consider whether the lawenforcement officer had a reasonable, articulable suspicion of criminal activity that justified thequestioning. If the questioning was justified, no fourth amendment violation occurred. Gonzalez,204 Ill. 2d at 235. Finally, in the absence of a reasonable connection to the purpose of the stop ora reasonable, articulable suspicion of criminal conduct, we must consider whether, in light of all thecircumstances and common sense, the questioning impermissibly prolonged the detention or changedthe fundamental nature of the stop. Gonzalez, 204 Ill. 2d at 235.

Applying the Gonzalez framework, we hold that Russell's questioning fails to satisfy thesecond prong of the Terry analysis. First, Russell's question regarding contraband and request forconsent to search defendant and his vehicle were unrelated to the initial purpose of the stop, the threetraffic violations.

Because the questions were not related to the initial purpose of the stop, we next considerwhether Russell had a reasonable, articulable suspicion of criminal conduct that justified thequestioning. The State argues that the questioning was justified based on (1) Russell's observationof the latex gloves, (2) his observation of the FOID card, and (3) the fact that the stop occurred ina "high crime area." We hold that these facts, viewed individually or taken together, did not provideRussell with a reasonable, articulable suspicion of criminal activity that justified his questioning ofdefendant.

First, Russell's observation of the latex gloves did not support a reasonable, articulablesuspicion of criminal activity. Even though Russell had been advised that gang members were usinglatex gloves during the commission of handgun crimes, he had no information that defendant or thepassenger was a gang member. Additionally, as defendant argues in his appellate brief, latex gloveshave many legitimate uses, and there are numerous noncriminal reasons why an individual would keeplatex gloves in his or her car.

Second, the fact that the stop occurred in a high-crime area is also insufficient to supportreasonable suspicion. See People v. Gilbert, 347 Ill. App. 3d 1034, 1041 (2004); People v. Ortiz, 317Ill. App. 3d 212, 224-25 (2000).

Finally, defendant's FOID card indicated only that he owned a firearm, and the mereownership of a firearm is not illegal. The card did not indicate that defendant was illegally carryinga firearm in the vehicle. Thus, Russell's observation of the FOID card did not warrant a reasonablesuspicion of criminal activity. We also note that, because an individual must possess a FOID card inorder to acquire or possess a firearm (see 430 ILCS 65/2(a)(1) (West 2002)), allowing an officer toquestion a driver and search his or her car based on the observation of a FOID card would penalizethe driver for complying with the law.

The State cites People v. Ross, 289 Ill. App. 3d 1013 (1997), as support for its argument thatthe FOID card provided Russell with reasonable suspicion of criminal activity. There, two officersstopped the defendant for a traffic violation, and the defendant exited the car and met the officers atthe back of his vehicle. The officers asked for identification and the defendant produced a FOID card. The officers asked the defendant if there was a gun in the car, and the defendant responded that therewas. The officers searched the car, located the gun, and arrested the defendant. On appeal from thedenial of the defendant's motion to suppress, the reviewing court held that the questioning of thedefendant was not a fourth amendment violation. It reasoned that based on safety concerns, it wasreasonable for the officers "to be concerned about the whereabouts of that gun and to question [thedefendant] regarding it." Ross, 289 Ill. App. 3d at 1018.

Ross does not help the State here. The Ross court did not hold that the FOID card gave theofficers a reasonable, articulable suspicion of criminal conduct. Rather, it held that the officers'questioning and search for weapons was justified because of the officers' safety concerns. Ross, 289Ill. App. 3d at 1018. Such a search is permissible if an officer reasonably concludes that the driverposes a threat to his safety. See People v. Morquecho, 347 Ill. App. 3d 382, 386 (2004). Here, theState does not argue that Russell requested consent to search defendant and his car out of a concernfor his safety. Nor did Russell testify that that was the reason for the search. Thus, the State cannotrely on Ross to justify the questioning and search of defendant.

Because Russell's questioning was not related to the purpose of the stop and was notsupported by a reasonable, articulable suspicion of criminal conduct, we next consider whether thequestioning prolonged defendant's detention or changed the fundamental nature of the stop. InPeople v. Bunch, 207 Ill. 2d 7, 17 (2003), the court held that questioning that occurred after thepurpose of the stop had concluded impermissibly prolonged the detention of the defendant. Such isthe case here. Russell stopped the vehicle because of three minor traffic violations. Once Russelldetermined that defendant's license was valid and that there were no outstanding warrants, all thatremained was to issue defendant a warning or a ticket. Instead, Russell asked defendant whether hehad contraband and asked for consent to search his person and his vehicle. Because these questionsoccurred after the purpose of the stop was completed, the questions impermissibly prolongeddefendant's detention. See Bunch, 207 Ill. 2d at 17.

Moreover, the questioning changed the fundamental nature of the stop. To issue defendanta warning or a ticket for the traffic violations, Russell needed only to obtain defendant's license andregistration, run a computer check, and issue the warning or ticket. By asking whether defendant hadcontraband and asking to search him and his vehicle, Russell "converted a routine traffic stop into afishing expedition." People v. Hall, 351 Ill. App. 3d 501, 505 (2004).

Accordingly, defendant's detention, following the conclusion of the purpose of the traffic stop,was unreasonable within the meaning of the fourth amendment and tainted the resulting discovery ofthe handgun. See Bunch, 207 Ill. 2d at 20.

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

Affirmed.

HUTCHINSON and CALLUM, JJ., concur.