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7 August 2000

No. 3--99--0996

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

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JUSTICE LYTTON delivered the opinion of the court:
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The defendant, Ronald Ruffin, was convicted of unlawfulcannabis trafficking (720 ILCS 550/5.1(a) (West 1998)). He wassentenced to 12 years in prison and ordered to pay a street-valuefine of $24,000. On appeal, the defendant argues: (1) his motionto suppress should have been granted; (2) the State failed to provebeyond a reasonable doubt that the substance possessed by thedefendant was cannabis sativa; (3) the State's improper closingargument denied him a fair trial; (4) his sentence is excessive;and (5) he should be given credit against his fine for 95 days ofpre-sentence incarceration. We hold that the arresting officerdetained the defendant longer than was necessary given the reasonfor the stop and further that the officer lacked a reasonable andarticulable suspicion of criminal activity upon which to detain thedefendant until the arrival of the canine unit. Thus, we hold thatthe defendant's motion to suppress should have been granted. Wereverse the judgment of the circuit court of Bureau County.

On April 20, 1999, at approximately 7:55 p.m., the defendantand his fiancée were traveling eastbound on Interstate Route 80. The arresting officer effected a traffic stop at that time becausehe had determined that the defendant was driving 69 miles per hour,4 miles per hour over the speed limit of 65.

A videotape shows the stop beginning at 7:57:40 p.m. Thearresting officer approached the defendant's car and asked for thedefendant's license, telling the defendant that he had beentraveling "a little bit fast." The officer asked the defendant ifthe car was his and the defendant replied that he had rented thecar. The defendant showed the officer the car rental agreement,and the officer asked if the defendant had rented the car in SanDiego. The defendant replied that he had. The defendant told theofficer that he had been visiting his grandparents in Oakland,California, and he and his fiancée had traveled to San Diego andTijuana, Mexico, as well.

At 7:59:10, the arresting officer asked the defendant to sitin the officer's car. He told the defendant that he was going towrite a warning ticket if the defendant's license was clear. Heasked the defendant about his home town of Rochester, New York. The defendant and the officer proceeded to sit in the officer'svehicle.

While they were in the officer's vehicle, the officer and thedefendant conversed about the defendant's trip to California. Thedefendant told the officer that his mother had rented a car in NewYork for him to drive to California. The officer asked thedefendant when he had left New York. The defendant answered thathe had taken a civil service examination on a Wednesday and theyhad left the next day, Thursday. The officer asked if it had beenthe previous Wednesday, the 14th. The defendant initially agreed,but immediately corrected himself and stated that they had left NewYork on the 7th. The defendant told the officer that he wasnervous about sitting in a police officer's car.

According to the defendant, he and his fiancée had stayed inOakland five or six days and then headed to San Diego with hisuncle. The defendant told the officer that he had not known hisuncle very well, and had met him only once or twice before. Theyhad stayed overnight in San Diego, and the defendant and his unclehad taken the defendant's fiancée to Tijuana. On their return toSan Diego, the defendant's uncle had rented another car for thedefendant and his fiancée because the gas gauge on the first carwas malfunctioning. After that, the defendant's uncle returned toOakland by bus and the defendant and his fiancée had started ontheir way back to New York.

The defendant told the officer that he and his fiancée were intheir third day of traveling. They had spent the previous twonights in motels, the last one in Kearney, Nebraska.

At 8:05:39, the arresting officer called the dispatcher for acheck on the defendant's driver's license. The dispatcher reportedat 8:07:05 that the defendant's driver's license was suspendedeffective March 17, 1999. The defendant told the officer that hehad paid a fine to clear his license before leaving New York. Hehad a receipt to prove payment, but had forgotten to bring it withhim on the trip. The officer asked the defendant if thedefendant's fiancée had a valid license, and the defendant repliedthat she did. The officer then asked the defendant to retrieve hisfiancée's license to be checked.

At 8:08:41, the arresting officer called in the defendant'sfiancée's driver's license and asked for the reason for thedefendant's suspension. The dispatcher told him that thedefendant's license was suspended as the result of a judgment. Thedefendant's fiancée's license was determined to be valid at8:09:20. The arresting officer then advised the defendant that hewould be getting a ticket for failure to have a valid license.

The arresting officer asked the defendant to sign the ticketsat 8:14:17. Then he took the defendant's fiancée's license back toher and had a conversation, the majority of which was not recordedon the videotape. In one audible section, the defendant's fiancéetold the officer that authorities in New York had told thedefendant to retain the receipt for the clearance of his licensebecause it would take a long time to clarify their records. According to the officer's testimony at the motion to suppress, thedefendant's fiancée told him at this time that only she and thedefendant had traveled to Tijuana.

At 8:19:20, the arresting officer gave the defendant histickets. He told the defendant that the defendant was free to goand said, "Have a safe trip." At the hearing on the defendant'smotion to suppress, the officer indicated that he did not believethat the defendant was truly free to go at this time. The officerintended to detain the defendant to effect a search of his car,either by consent or with the assistance of the canine unit.

At 8:19:34, the arresting officer asked the defendant if hehad anything illegal in his car. The defendant replied, "No." Theofficer asked the defendant for consent to search the vehicle. Thedefendant refused consent, telling the officer that he had personalitems in the trunk of the car, including sex toys, vibrators, andlingerie. The defendant indicated that he did not want his fiancéeto see them. The officer said, "She's up there, man." Thedefendant replied, "I know." The officer then asked again forconsent to search the car. Again, the defendant refused toconsent. Then the officer told the defendant that he would bedetaining the vehicle until the canine unit could arrive for awalk-around. The defendant then admitted, at 8:20:44, that hisfiancée possessed marijuana.

The arresting officer talked to the defendant's fiancée andrecovered a small bag of what appeared to be cannabis. He theninformed the defendant that the defendant was under arrest. Heasked the defendant again if anything else was in the car, tellingthe defendant that he would find out if the defendant lied. Thedefendant said that there was nothing else in the car.

The arresting officer removed the keys from the car's ignitionand unlocked the trunk. After a brief inspection of the trunk, hesaid to the defendant, "Now you're really under arrest." Insidethe trunk, the officer had found approximately 285 pounds of agreen leafy substance which he believed to be cannabis.

After his arrest, the defendant moved to suppress the evidenceagainst him. At the hearing on the defendant's motion, thearresting officer testified that he became suspicious that thedefendant might be involved in illegal activity because thedefendant was nervous when approached by the officer. At theconclusion of the hearing, the trial judge denied the defendant'smotion. Subsequently, the defendant was convicted of the chargedoffense and sentenced to 12 years in prison.

On Appeal, the defendant argues that his motion to suppressshould have been granted. Specifically, he argues that he wasdetained longer than was necessary to address the reason for thestop and that the officer lacked a reasonable and articulablesuspicion to further detain him pending the arrival of the canineunit.

The trial court's decision on a motion to suppress will not bereversed unless it is manifestly erroneous. People v. Kidd, 175Ill. 2d 1, 675 N.E.2d 910 (1996). Stopping a vehicle for a trafficviolation does not justify a search of the person or the vehicle. People v. Evans, 259 Ill. App. 3d 650, 631 N.E.2d 872 (1994). Theinitial stop may be broadened into an investigative detention,however, if the officer discovers specific, articulable facts whichgive rise to a reasonable suspicion that the defendant hascommitted, or is about to commit, a crime. See People v. Stewart,242 Ill. App. 3d 599, 610 N.E.2d 197 (1993); People v. Hardy, 142Ill. App. 3d 108, 491 N.E.2d 493 (1986). Mere hunches andunparticularized suspicions are not enough to justify a broadeningof the stop into an investigatory detention. People v. Penny, 188Ill. App. 3d 499, 544 N.E.2d 1015 (1989). An investigativedetention may last no longer than is reasonably necessary toeffectuate its purpose. Stewart, 242 Ill. App. 3d 599, 610 N.E.2d197. Although brevity is an important factor in determiningwhether a detention is unreasonable, the court should also considerwhether the police acted diligently in pursuing the investigation. People v. Smith, 208 Ill. App. 3d 44, 566 N.E.2d 939 (1991).

In People v. Koutsakis, 272 Ill. App. 3d 159, 649 N.E.2d 605(1995), this court held that a routine traffic stop may not be usedas a subterfuge in order to obtain other evidence based upon apolice officer's suspicion. Koutsakis, 272 Ill. App. 3d at 164,649 N.E.2d at 609. In that case, Koutsakis was detained between 14and 20 minutes while the police waited for a drug-sniffing dog toarrive. The court noted that there "is no talismatic (sic) timebeyond which" a traffic stop violates the fourth amendmentguarantee against unreasonable searches and seizures. Koutsakis,272 Ill. App. 3d at 163, 649 N.E.2d at 608. However, the courtnoted that the brevity of the stop is an important factor in determining whether the stop was reasonable. Koutsakis, 272 Ill. App.3d at 163-4, 649 N.E.2d at 608.

In the instant case, the defendant was stopped for speeding,yet the arresting officer did not run a check of the defendant'sdriver's license until eight minutes had elapsed. Then, after thedefendant's fiancée's license had been confirmed as valid, theofficer took another five minutes to write a warning ticket and atraffic ticket. Another five minutes passed before the officertold the defendant that he was free to go. In all, the stop lastednearly 22 minutes from the time the defendant stopped his car onthe side of the road to the time the officer first asked thedefendant for permission to search the car. It seems clear thatthe officer was prolonging the stop in an effort to obtainincriminating information from the defendant. See Koutsakis, 272Ill. App. 3d at 64, 649 N.E.2d 608.

The State urges us to consider that the stop of the defendanttook more time than an average stop because the defendant's licenseturned out to have been invalid and additional time was needed tocheck his fiancée's license. The record establishes that theprocess of checking both the defendant's license and his fiancée'slicense took just less than four minutes. The record furtherestablishes that the officer wrote the defendant's tickets in aboutfive minutes. Thus, the "business" portion of the stop lastedapproximately 10 minutes. However, the defendant was detained formore than twice that period of time. The detention of thedefendant lasted longer than was reasonably necessary to effectuateits purpose. The length of the defendant's detention became "asubterfuge in order to obtain other evidence" (Evans, 259 Ill. App.3d 656, 631 N.E.2d at 876) and thus was an unreasonable search andseizure under the fourth amendment. See Koutsakis, 272 Ill. App.3d at 163, 649 N.E.2d at 608.

In People v. Sinclair, 281 Ill. App. 3d 131, 666 N.E.2d 1221(1996), we found that when a continued detention is unrelated tothe purpose of the original traffic stop and is not based uponreasonable and articulable facts giving rise to a suspicion ofseparate illegal activity, the continued detention is an illegalseizure. The court held that in the absence of probable cause ora reasonable and articulable suspicion, once a person unambiguouslywithholds his consent to search, the police officer must allow theperson to leave and may not continue to intimidate, harass orbadger the person until consent is obtained. The stop in Sinclairlasted 25 minutes.

Here, we find that the arresting officer lacked a reasonableand articulable suspicion to prolong the detention of the defendantbeyond his refusal to consent to a search of his vehicle. At thetime the officer told the defendant that he was going to hold himuntil a canine unit arrived, the officer knew only that thedefendant was driving a rented car, that he was nervous, and thathe was traveling from southern California, where he had visitedMexico, to New York. In addition, the officer knew that thedefendant and his fiancée disagreed about who had gone to San Diegoand Tijuana with them. These facts support no more than a hunch orsuspicion of illegal activity. They do not give rise to areasonable and articulable suspicion that the defendant wastrafficking in cannabis. Moreover, the defendant refused toconsent to a search of his vehicle. As in Sinclair, the lack of areasonable and articulable suspicion, coupled with a withholding ofconsent to search, requires the officer to free the defendant fromdetention. Thus, the continued detention of the defendant was aviolation of his constitutional rights.

Finally, the State argues that the defendant lacked standingto object to the search of his vehicle. The State bases itsargument on People v. Bower, 291 Ill. App. 3d 1077, 685 N.E.2d 393(1997).

In Bower, the defendant attempted to rent a car on his own. The rental agency refused to rent a car to him. The defendant thencalled a friend who rented the car in his own name but turned thecar over to the defendant immediately upon completing the rentalagreement. When the defendant was stopped for a traffic violation,the police noted that he was not listed as an authorized driver onthe car rental agreement. The police notified the rental agency,and the rental agency asked the police to impound the car. Asearch of the car pursuant to the impoundment revealed a largeamount of cannabis contained in the car. The court held that thedefendant lacked standing to object to the search of the car. Itsaid, "the entrustment by a lessee of a rental vehicle to a thirdparty is insufficient to create a reasonable expectation of privacyin that third party where the third party knows the entrustment iswithout the authority of the vehicle's owner." Bower, 291 Ill.App. 3d at 1083, 685 N.E.2d at 398.

The case at bar is distinguishable from Bower. In the instantcase, the officer did not contact the rental agency and was notrequested by it to impound the car. Thus, the owner of the car didnot revoke any authority to drive it pursuant to the rentalagreement. In addition, the search of the car in Bower was notbased upon any suspicion of illegal activity. It was merelyincident to the impoundment of the car. Further, there was noevidence in the case at bar that the defendant knew that his unclewas without authority to entrust the vehicle to him. Indeed, thereis evidence to suggest that the defendant thought that it wasperfectly acceptable for his uncle to rent the car for him. Thedefendant's mother had done the same thing for the defendant's tripto California. We find, then, that the principle outlined in Bowerdoes not apply to the current situation. The defendant in thiscase did have a reasonable expectation of privacy in the car he wasdriving. He had standing to object to the arresting officer'ssearch.

We hold that the defendant's motion to suppress should havebeen granted. This holding renders moot all other issues raised inthe defendant's brief.

The judgment of the circuit court of Bureau County isreversed.

Reversed.

SLATER, P.J., and HOMER, J., concur.