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September 13, 2001

No. 2--00--1102

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Following a stipulated bench trial, defendant, Amanda Welling,was convicted of unlawful possession of less than 15 grams of acontrolled substance (cocaine) (720 ILCS 570/402(c) (West 1998))and sentenced to 24 months of probation. Defendant appeals herconviction, arguing that the trial court erroneously denied herpretrial motion to quash arrest and suppress evidence (motion tosuppress). Specifically, defendant argues that (1) the policeunlawfully detained her prior to searching her, and (2) the policedid not have probable cause to search her person.

Most of the essential facts related to the stop and search ofdefendant are not in dispute. Officer Michael Skopek of theGlendale Heights police department testified that on October 1,1999, he was surveilling a residence at 77 East Armitage Avenue inresponse to a complaint that drug deals were taking place at theresidence. In addition, Skopek was watching the house because oneof its residents, James Targo, was wanted on an outstandingwarrant. Skopek had received information from other officers thatTargo was eluding the police by hiding in a blue Ford Aerostarminivan when he left the house.

When Skopek arrived at his surveillance location, he saw ablue Ford minivan parked on the street near the house. Soonthereafter he saw two females leave the house and enter the van. One of the women was carrying a large red bag. From his vantagepoint, Skopek could not tell which woman was carrying the bag.

Skopek followed the women in the minivan. He paced theminivan's speed with his squad car and stopped the minivan forgoing 35 miles per hour in a 25-mile-per-hour zone. Debra Reichwas driving the minivan, and defendant was seated behind Reich inthe second row of seats. The red bag was on the seat next todefendant. A large pile of clothes was on the floor of the vanbehind defendant. Skopek was not sure whether Targo was hidingunder the clothes.

Skopek testified that Reich was "extremely nervous" when heapproached her and asked for her driver's license. Skopek askedReich to exit the minivan, which she did. At about this time,Officer C.J. Camel arrived on the scene to assist Skopek. Skopekasked Reich where she came from, and Reich said that she had pickedup a friend from the Armitage address. Reich said that she wastaking her friend (defendant) to a boyfriend's house to pick upsome clothes and then they were going to get something to eat. Skopek asked Reich if she knew James Targo, and she denied knowinghim.

Skopek then went to talk to defendant. He asked her where sheand Reich were going, and defendant responded that she did notknow. Next, he asked defendant whose bag was next to her. Defendant responded that she did not know and that it must belongto Reich. From briefly talking with defendant, Skopek ascertainedthat defendant was deaf. From then on, defendant and Skopekcommunicated by writing notes. Skopek asked defendant to exit thevan because he wanted to separate her from the bag in case therewere any weapons inside it.

After defendant denied knowing anything about the bag, Skopekwent back to talk to Reich. He told her that he had been watchingthe house at 77 East Armitage in response to a drug dealingcomplaint and that defendant had said that the bag was not hers andmust be Reich's. Skopek asked Reich for permission to search thevan because he thought there might be drugs in the bag. Reichinitially said she did not care if Skopek performed a search butthen changed her mind. For about 10 minutes she vacillated betweentelling Skopek she did not care if he searched the vehicle andtelling him that she did not want him to search it because she didnot know what was in the bag. Skopek then told her that he wasgoing to call in a canine unit to sniff the van.

Skopek requested that his department's canine unit come to thescene but was informed that the canine unit was not yet on duty. Skopek then called the Du Page County sheriff's department andasked for help from its canine unit. That canine unit, however,was not close by and would have taken a long time to get toGlendale Heights. Skopek then learned that his sergeant had calledin the Glendale Heights canine unit to respond to Skopek's call.

During Skopek's conversation with Reich and the subsequentwait for the canine unit, defendant stood on the grass parkwaybetween the sidewalk and the street. Officers Skopek and Cameltold her that she could sit down while they were waiting. Defendant never asked if she was free to leave. The officers nevertold her that she was free to leave, but both officers testifiedthat defendant could have left at that point if she had wanted todo so.

Before the canine unit arrived, Reich opened the door to theminivan, took the bag out, handed it to Skopek, and told him hecould look in it. When Skopek looked inside, he saw various itemsof drug paraphernalia and white powder that appeared to be cocaine. Skopek did not field test the white powder. Skopek then directedOfficer Camel to pat down defendant. Officer Camel found drugs ondefendant's person. Reich was not arrested because the drugparaphernalia items in the bag were homemade or multiuse.

Officer Camel's testimony regarding the events leading up tothe search basically mirrored that of Officer Skopek. Likewise,defendant's version of events did not differ significantly from thetestimony given by Skopek and Camel. Defendant testified that thedriver, whom she knew only as "Debbie," was not her friend. Defendant never consented to a search of her person and was neveradvised that she was free to leave.

There was some discrepancy in the testimony regarding how longdefendant was detained before the search occurred. Defendanttestified that between 15 and 30 minutes elapsed from the initialstop until she was searched. Skopek testified that about 30minutes passed, and Camel stated that she searched defendant about30 to 45 minutes after she arrived on the scene.

After hearing the testimony of defendant, Skopek, and Camel,the trial court determined that the stop was lawful; the officershad reasonable suspicion to detain defendant due to defendant's andReich's denial of ownership of and knowledge about the bag; theofficers obtained Reich's consent to search the bag; and thepresence of drug paraphernalia and what appeared to be narcotics inthe bag gave the officers probable cause to arrest and, therefore,to search defendant. For these reasons, the trial court denieddefendant's motion to suppress. Following defendant's stipulatedbench trial and conviction, defendant moved for a new trial on theground that the trial court erroneously denied her motion tosuppress. The trial court denied the motion for a new trial andthis appeal ensued.

On appeal, defendant does not contest the validity of the stopor the validity of the consent to search the bag. She argues that(1) the officers illegally detained her prior to the search and (2)the officers performed an illegal search of her person because theitems found in the bag did not give rise to probable cause toarrest.

We address first the applicable standard of review. When areviewing court considers a ruling on a motion to suppressinvolving a question of probable cause or reasonable suspicion, thecourt should review the trial court's findings of historical factsonly for clear error and must give due weight to inferences drawnfrom those facts. People v. Sorenson, No. 89262, slip op. at 5(June 21, 2001), citing Ornelas v. United States, 517 U.S. 690,699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Consequently, the trial court's factual findings will be reversedonly if they are against the manifest weight of the evidence. Sorenson, slip op. at 5. However, we review de novo the trialcourt's ultimate determination of a defendant's legal challenge tothe denial of his motion to suppress. Sorenson, slip op. at 5. The key facts pertaining to the detention and search of defendantare not in dispute. Thus, we review de novo whether those factsjustified the denial of defendant's motion to suppress.

Defendant's first contention is that the search of her personwas the product of an unlawful detention. Relying on People v.Brownlee, 186 Ill. 2d 501 (1999), defendant argues that (1) theofficers lacked reasonable suspicion to detain her and (2) even ifreasonable suspicion existed, the detention was unreasonably long. The State argues that, pursuant to People v. Juarbe, 318 Ill. App.3d 1040 (2001), defendant's detention was lawful.

The fourth amendment to the United States Constitutionprotects individuals from unreasonable searches and seizures oftheir persons and property. U.S. Const. amend. IV. Generally, awarrant supported by probable cause is required for a search orseizure to be considered reasonable under the fourth amendment. People v. Flowers, 179 Ill. 2d 257, 262 (1997). However, underTerry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct.1868, 1880 (1968), an officer may make a valid investigatory stopwithout probable cause to arrest when the officer reasonably infersfrom all the facts and circumstances that the person is committing,has committed, or is about to commit a crime. People v. Ertl, 292Ill. App. 3d 863, 868 (1997). The officer's conduct must be basedon more than a mere hunch; it must be supported by specific,articulable facts that, when taken together with naturalinferences, make the intrusion reasonable. Ertl, 292 Ill. App. 3dat 868. A detention is justified when an officer observes unusualconduct that leads him reasonably to believe in light of hisexperience that criminal activity may be afoot. Ertl, 292 Ill.App. 3d at 868-69.

A defendant who files a motion to suppress bears the burden ofestablishing that the search or seizure was unlawful. Ertl, 292Ill. App. 3d at 868. The defendant must make a prima facie casethat the police acted without a warrant and that he was doingnothing unusual to justify the intrusion of a warrantless search orseizure. Ertl, 292 Ill. App. 3d at 868. After the defendant hassatisfied this burden, the State must present evidence to justifythe intrusion. Ertl, 292 Ill. App. 3d at 868.

Defendant analogizes the case before us to Brownlee, in whichthe court held that the State failed to present any evidence thatjustified the intrusion of detaining the defendant. In Brownlee,police officers stopped the car in which the defendant was apassenger for traffic violations after seeing it leave an areaknown for its " 'crack houses.' " Brownlee, 186 Ill. 2d at 505-06. After checking all of the occupants' identification and checkingfor outstanding warrants, the officers decided not to issue anytraffic citations. The officers informed the driver that he wouldnot receive a citation but did not tell him that he was free toleave. Instead, the officers paused for a couple of minutes andthen asked the driver for permission to search the car. The driverconsented to the search. During the search, the officers found two"blunts" (hollowed-out cigars filled with marijuana) underneath ajacket in the center of the front seat. The officers determinedthat there was probable cause to arrest all four people who were inthe car because the blunts were within the reach of all of thecar's occupants, no one claimed ownership of the blunts, one of thepassengers stated that all four occupants had smoked the blunts,and the defendant said that she had smoked marijuana before joiningthe others in the car. The officers searched the defendantincident to her arrest and discovered the cocaine that formed thebasis of the charges against her. Brownlee, 186 Ill. 2d at 506-07.

Our supreme court held that the officers restrained themovement of the car's occupants by their show of authority andthereby seized the defendant and the other occupants of the car. Brownlee, 186 Ill. 2d at 520. The court further held that theState waived any argument that (1) the detention was objectivelyjustified, (2) the detention was sufficiently limited in time andscope, and (3) the evidence was not the fruit of an illegaldetention. Brownlee, 186 Ill. 2d at 521. Consequently, the courtaffirmed the trial court's suppression of the evidence as the fruitof an illegal detention. Brownlee, 186 Ill. 2d at 521.

In its brief, the State does not challenge defendant'sargument that her detention constituted a seizure under the fourthamendment (U.S. Const., amend. IV). Consequently, the State haswaived any such argument. See Brownlee, 186 Ill. 2d at 521. However, unlike Brownlee, the State in the case before us didcontend that defendant's detention was based on specific,articulable facts that gave rise to a reasonable suspicion that shewas involved in criminal activity. Those facts included Skopek'sawareness that a neighbor had complained of drug dealing at the 77East Armitage residence; Skopek's observation of either defendantor Reich carrying a red bag from the residence into the van;defendant's and Reich's subsequent disavowal of any knowledgeregarding the bag's contents; and Reich's nervous behavior. Because the State did present evidence that the detention wasreasonable based on these facts, Brownlee is distinguishable as tothis issue. Furthermore, we hold that these facts, when takentogether, gave rise to a reasonable suspicion of criminal activitysufficient to establish that the detention was reasonable. Defendant's and Reich's denial of any knowledge regarding the bag,despite the fact that one of them brought it into the van and leftit right beside defendant, was unusual conduct that led Skopek, anexperienced officer, to believe that the bag contained contraband.

Defendant also relies upon People v. Sinclair, 281 Ill. App.3d 131 (1996). We find this case distinguishable as well. InSinclair, the driver of the car in which the defendant was apassenger unequivocally refused to consent to a search of hisvehicle. Instead of allowing the driver and the defendant toleave, the officer continued to ask for consent and eventuallyconvinced the driver to consent to a search. The court held thatthe officer had no justifiable reason to prolong the traffic stopin an effort to change the driver's mind and that once the driverrefused to consent to a search the officer was required to releasethe car and all of its occupants, in the absence of either probablecause or reasonable suspicion sufficient to extend the stop. Sinclair, 281 Ill. App. 3d at 138.

Defendant's reliance on Sinclair is misplaced for two reasons. First, the driver of the van in the case before us, Reich, did notunambiguously withhold consent to search. She initially agreed toallow the search, then changed her mind, going back and forthmultiple times. Further, there were additional facts, as we setforth above, that gave rise to a reasonable and articulablesuspicion sufficient to extend the traffic stop.

Next, we address the length of defendant's detention. Shecontends that, even if she was properly detained, the detention wasimpermissibly prolonged. It is well established that, in additionto being justified in the first place, an investigative detentionmust be " 'reasonably related in scope to the circumstances whichjustified the interference in the first place.' " Juarbe, 318 Ill.App. 3d at 1052, quoting Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at905, 88 S. Ct. at 1879. An investigative detention " 'must be ***no longer than is necessary to effectuate the purpose of thestop.' " Brownlee, 186 Ill. 2d at 519, quoting Florida v. Royer,460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325(1983) (plurality opinion). The State bears the burden of showingthat a seizure based on reasonable suspicion was sufficientlylimited in scope and duration. Brownlee, 186 Ill. 2d at 519,citing Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238, 103 S. Ct. at1326 (plurality opinion). Brevity is an important factor indetermining whether a detention was reasonable, but the courtshould also consider whether the police acted diligently inpursuing the investigation. People v. Ruffin, 315 Ill. App. 3d744, 749 (2000).

Defendant estimated that between 15 and 30 minutes elapsedfrom the time of the stop until she was searched. Officer Skopekestimated the time at approximately 30 minutes and Officer Camelestimated it at 30 to 45 minutes. Again defendant relies onBrownlee for the proposition that this was too long. However, inBrownlee the court did not specifically address the time issueexcept to say that the State had waived it for failing to presentany argument that the length of the detention was reasonable. Brownlee, 186 Ill. 2d at 521.

Defendant also relies on Ruffin, People v. Hess, 314 Ill. App.3d 306 (2000), and People v. Koutsakis, 272 Ill. App. 3d 159(1995), for the proposition that a 30-minute detention isunreasonably long. In Ruffin and Koutsakis, the court determinedthat the police had no reason to detain either defendant once theinitial traffic stop was completed. Ruffin, 315 Ill. App. 3d at750; Koutsakis, 272 Ill. App. 3d at 164. This was not so in thecase before us, as we have held that Officer Skopek had areasonable suspicion that defendant and Reich were in possession ofcontraband. Further, in Ruffin, the court concluded that theofficer clearly prolonged the stop in an effort to obtainincriminating information from the defendant. Ruffin, 315 Ill.App. 3d at 749. As we will explain below, the evidence in the casebefore us showed that Officer Skopek acted diligently in pursuinghis investigation.

Hess involved the 30- to 40-minute detention of a defendant atthe residence of a third party upon whom the police were servingsearch and arrest warrants. Hess, 314 Ill. App. 3d at 312. Thecourt held that the police were justified in detaining thedefendant long enough to secure the premises but were obliged torelease him once they had accomplished that task, absent any othercircumstances that would justify detaining him. Hess, 314 Ill.App. 3d at 312.

Ruffin, Koutsakis, and Hess are distinguishable because inthose cases the police did not have the reasonable suspicionnecessary to justify an investigative detention of any of thedefendants. That is not true in the case before us. Defendant hasnot cited any authority for the proposition that a 30-minutedetention is unreasonably long when the police are justified indetaining the defendant.

Moreover, the evidence showed that the detention was prolongedin part because of Reich's equivocations and in part becauseOfficer Skopek had trouble finding a canine unit to come to thescene. There was no evidence that Skopek impermissibly extendedthe detention period before asking for permission to search thevan. Rather, Skopek asked for consent to search after brieflyconversing with defendant and Reich soon after he stopped the van. Then, after going back and forth with Reich for approximately 10minutes regarding whether she would consent to a search, Skopekdecided to call in a canine unit to sniff the van. Neither hisdepartment's canine unit nor the sheriff's canine unit wasimmediately available. This was a matter beyond Skopek's control.There was no evidence that he delayed the detention period in anattempt to obtain evidence.

In Juarbe, the defendants argued that their detention wasunconstitutionally prolonged because they had to wait forapproximately one hour for a canine unit to arrive on the scene. Juarbe, 318 Ill. App. 3d at 1053. As recited by the court inJuarbe, the testimony of the arresting officer showed thatapproximately 30 minutes elapsed from the initial stop until thecanine unit arrived, 13 minutes of which were spent waiting for thecanine unit to arrive. The court held that this was not anunreasonable wait. Juarbe, 318 Ill. App. 3d at 1053. Likewise, weconclude that the 30-minute detention of defendant in the casebefore us was reasonable in length and in scope.

Defendant's final contention is that, even if the detentionwas proper, the contents of the red bag did not give rise toprobable cause to arrest her and subject her to a search incidentto arrest. We disagree. Probable cause to arrest exists when thetotality of the facts and circumstances known to the officer at thetime of the arrest would lead a reasonable, prudent person,standing in the officer's shoes, to conclude that a crime has beencommitted and the defendant was the person who committed the crime. People v. Drake, 288 Ill. App. 3d 963, 967 (1997). More than amere hunch or suspicion is required. The determination of whetherprobable cause existed is governed by commonsense considerationsand the probability of criminal activity rather than proof beyonda reasonable doubt. Drake, 288 Ill. App. 3d at 967.

The constructive possession of contraband exists where thereis an intent and capacity to maintain control and dominion over thecontraband. Drake, 288 Ill. App. 3d at 969. The State may proveconstructive possession by showing that the defendant controlledthe premises where the contraband was found. Drake, 288 Ill. App.3d at 969.

Defendant relies on Drake, in which this court held that thepolice lacked probable cause to arrest the defendant, who was apassenger in a car in which contraband was found. Drake, 288 Ill.App. 3d at 969. The drugs were located in a locked container inthe trunk of the car. Defendant had been seated in the frontpassenger seat and there was no other evidence linking thedefendant to the contraband. Drake, 288 Ill. App. 3d at 969. Thisis a far cry from the situation we are presented with here, wheredefendant was the only person in the backseat of the van, rightnext to the bag that contained what appeared to be drugparaphernalia and drug residue. For this reason, Drake isinapposite.

People v. Fondia, 317 Ill. App. 3d 966 (2000), another caserelied upon by defendant, is also inapposite. In Fondia, a drug-sniffing dog alerted at the driver's car door. The defendant hadbeen riding in the backseat on the passenger side of the car. After the dog alerted, the police searched all of the car'soccupants and found contraband on the defendant's person. Fondia, 317 Ill. App. 3d at 968. The court held that the dog's alert atthe driver's door did not give rise to probable cause to search allof the car's occupants and that the police should have had the dogsniff all of the occupants, thereby narrowing the focus of theofficers' investigation. The court reasoned that the officers'" 'willful ignorance' " as to whether the dog would have alertedupon sniffing all of the occupants "dissipate[d] the reasonablenessof the police conduct." Fondia, 317 Ill. App. 3d at 970. Again,this situation is quite different from the one presented to us. The record does not reveal any evidence that the officers inthis case were in a position of "willful ignorance" whereby theyhad the means to narrow the focus of their search but deliberatelychose not to avail themselves of those means. Further, given thefact that both Reich and defendant denied knowing what was in thebag, we cannot say that the officers had probable cause to searchonly Reich and not defendant. We conclude that the facts of thiscase would lead a reasonably prudent person standing in theofficers' shoes to conclude that defendant had committed the crimeof possessing contraband. Accordingly, we affirm the trial court'sdetermination that probable cause existed to search defendantincident to arrest.

For the reasons stated, the judgment of the circuit court ofDu Page County is affirmed.

Affirmed.

HUTCHINSON, P.J., and GROMETER, J., concur.