People v. Staley

Case Date: 10/09/2002
Court: 4th District Appellate
Docket No: 4-01-0485 Rel

NO. 4-01-0485

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,
                      Plaintiff-Appellee,
                      v.
JEFFREY J. STALEY,
                      Defendant-Appellant.
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Appeal from
Circuit Court of
Livingston
County
No. 00CF326

Honorable
Harold J. Frobish
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Judge Presiding.


JUSTICE STEIGMANN delivered the opinion of the court:

In December 2000, the State charged defendant, JeffreyJ. Staley, with possession of a controlled substance (less than15 grams of a substance containing cocaine) (720 ILCS 570/402(c)(West 2000)). In February 2001, defendant filed a motion tosuppress evidence, and following a March 2001 hearing, the trialcourt denied it. In April 2001, the court conducted a benchtrial and found defendant guilty of the charged offense. In June2001, the court sentenced him to three years in prison.

Defendant appeals, arguing only that the trial courterred by denying his motion to suppress evidence. We affirm.

I. BACKGROUND

The evidence at the March 2001 hearing on defendant'smotion to suppress showed the following. Around 2 a.m. onDecember 13, 2000, Pontiac police officer James Woolford saw acar, with its engine running, parked outside a local all-nightgrocery store. Woolford's suspicion was aroused because the carwas parked in the fire lane at the north end of the store, eventhough the only entrance to the store was at the south end andthe temperature was -9 F. After Woolford drove past the car,Officer John Cox radioed Woolford and told Woolford that he hadjust seen a man (later identified as defendant) quickly enter andleave a house near the grocery store and then get in the parkedcar. Woolford knew that many controlled drug buys had takenplace at the house, and he had seen people going into the houseat odd hours and then leaving after a short period of time. Healso knew that a former resident of the house was in prison for adrug-related offense and that a current resident had been seen inthe company of persons who had been the subject of drug investigations. Due to the suspicious manner in which the car wasparked and the fact that the residence was a known location fordrug buys, Woolford positioned his squad car so that he couldstop the car.

When the car left the parking lot, Woolford followed ituntil he observed that the car's rear registration light was out,a traffic violation. He then ran a computer check on the car'slicense plate number and found that the car's registration hadbeen suspended. Woolford pulled the car over, walked up to it,and asked the driver, Amy Roberts, for her driver's license andinsurance information. When she was unable to produce either,Woolford told her to stay in the car while he ran a computercheck. Woolford noticed that defendant, who was in the frontpassenger seat, was behaving oddly in that he sat in the carfacing straight ahead and did not make eye contact with theofficers. Woolford described that behavior as "unusual."

About one or two minutes after Woolford stopped thecar, Sergeant Hugh Roop, the shift supervisor, arrived, and a fewminutes thereafter, Woolford and Roop discussed their "strategyand what [they] wanted to do." Woolford told Roop that Woolfordbelieved that reasonable suspicion existed to justify a caninesniff. Because the use of canines was relatively new, Roop hadsome questions as to how Woolford used the dog and "how itworked." Woolford acknowledged that during his discussion withRoop, Woolford said that the officers "should let the odor get inthere pretty good." He explained that if a person with narcoticson his person has been in an area for a short period of time, thedog might not be able to detect the narcotics. Upon questioningby the trial court, Woolford stated that the traffic stop was notdelayed in order to allow the smell of any narcotics to permeatethe car. He explained that "we had decided that at this point intime I was going to write the tickets first before we did anything else. That way everything would be taken care of once wegot to that point." Woolford further testified that hisnarcotics-sniffing dog, Lump, was an "aggressive alert dog,"meaning that when Lump detects the presence of narcotics, hescratches and occasionally bites the area of detection.

Woolford then sat in his squad car, wrote out twocitations for Roberts (for operating a vehicle with suspendedregistration and without insurance), returned to her car, andasked her to get in the squad car so that he could issue thecitations. Immediately upon issuing the citations to Roberts,Woolford asked Roberts if the officers could search her car, andshe twice consented. Woolford then told Cox to have defendantget out of the car, and Woolford walked Lump around the car. Lump alerted to the driver's side interior door handle and thepassenger-side interior door panel. As Woolford walked Lump backto the squad car, Woolford told Cox to "detain [defendant] also." Upon further questioning by the trial court, Woolfordtestified that about 18 minutes elapsed from the time he stoppedRoberts' car until he issued her the two traffic citations andshe consented to a search. He stated that that was not anunusually long amount of time because Roberts did not have adriver's license and he had to write two citations. Woolfordalso stated that during the stop, defendant did not ask if hecould leave, and the officers did not order him to remain in thecar. He acknowledged, however, that defendant would not havebeen allowed to leave had he asked.

Cox testified similarly to Woolford. In addition, hestated that after Woolford stopped Roberts' car, Cox spoke withdefendant, asked to see his driver's license, and ran a computercheck, which showed no outstanding warrants. Cox then stood "offto the right" while Woolford wrote the citations. Just beforeWoolford began the canine search, Cox told defendant to get outof the car. Cox then conducted a pat-down search of defendant,which revealed cigarettes, Rolaids, and other miscellaneousitems. When Woolford instructed Cox to detain defendant, Coxhandcuffed defendant and then conducted a more thorough search ofdefendant's person. Cox found a small plastic bag containing a"round, chalk-like, white substance" (later determined to becocaine) in the right coin pocket of defendant's jeans. Defendant at no time asked Cox if he could leave and walk home.

Defendant testified that when Cox first approached himwhile he was sitting in the car, he made eye contact with Cox"from time to time." After Cox told him to get out of the car,he asked if he could walk home and Cox told him he could not.

The State also introduced into evidence a videotape ofthe traffic stop.

Following the hearing, the trial court took the matterunder advisement. Later in March 2001, the court entered awritten order denying defendant's motion to suppress evidence andstating, in pertinent part, as follows:

"1. Notwithstanding that the stop ofthe vehicle in question was a pretext inorder to pursue [defendant], the court findsthat the stop was valid because the officerobserved the rear license plate was not illuminated and because the license plate registration belonging to [Roberts], was learnedby the officer to be suspended.

2. The court further finds that theconsent given by [Roberts] to search hervehicle was a consent validly given, whichprecipitated the defendant's subsequent exitfrom the vehicle.

Specifically, the court finds that thestop occurred at 2:01:25 a.m. and that consent was given by [Roberts] to search thevehicle in an emphatic manner at approximately 2:20:08 a.m. The court finds thatunder this evidence, the intervening time ofsomewhat more than 18 minutes was not undulylong in order to accomplish the stop, makethe investigation of the status of [Roberts']license plates registration, and the actualissuing of the two citations (the issuance ofsaid citations being accomplished contemporaneously with her providing consent to search)and all occurring during quite miserableweather conditions.

Consent having been given, and the defendant being a passenger in a vehicle whichwould not be driven by the driver from thestop, but rather would be towed [because ofthe suspended registration], the court findsthat the defendant was lawfully directed toexit the vehicle at approximately 2:21:20a.m. It is found by the trial court thatuntil such time as the defendant exited, hehimself was not detained or seized by thepolice. While the police would not havepermitted him to leave (as candidly admittedin testimony) the defendant himself did notattempt to leave and no sufficient basis hasbeen demonstrated to show the defendant reasonably believed he was a target of the stop. Until the defendant's exit from the vehicle,he was simply a passenger in a vehiclestopped for other purposes relating to thedriver during an extremely, bitterly coldearly morning event at 2:00 a.m.

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The evidence shows that the canine did awalk around of the vehicle and alerted toboth the interior of the driver's side andinterior of the passenger's side during atime frame covering 2:22:15 to 2:24:20. During this time, Officer Cox was then in theprocess of the 'pat down' search of the defendant. At 2:24:58, and approximately contemporaneously with the canine's alert, Officer Woolford instructed assisting Officer Coxto 'detain him (defendant) also.' Upon receiving the instruction of Officer Woolfordto detain the defendant, Officer Cox placedcuffs upon the defendant behind his back. Acloser search of the person of the defendantthen ensued and in the 'coin pocket' or'watch pocket' of defendant's jeans, OfficerCox located a small plastic bag containingapproximately 1/2 gram of a white substancebelieved to be rock cocaine. The court doesnot find, as the defendant contends, that thedefendant at any time asked Officer Cox if hecould leave or that the defendant stated thathis home was only a short distance away.

4. The placement of the defendant incuffs in these circumstances gives the trialcourt pause. The evidence does not demonstrate that the defendant posed an imminentthreat to any officer on this occasion. Thecuffs were placed upon the defendant, itappears, solely as the result of OfficerWoolford's instruction to Officer Cox todetain the defendant. Clearly, the defendantwas, at that point, seized in a demonstrativemanner, and at a time when no offense hadbeen established that would precipitate anarrest. This confining method of seizure,the trial court concludes, does not necessarily[,] however[,] render invalid an otherwiselawful Terry stop, where that brief seizureis supported by reasonable suspicion of criminal activity.

5. *** Immediately upon exiting the car,Officer Cox commenced the pat[-]down searchfor safety purposes. While this pat[-]downsearch was being undertaken, the caninealerted, resulting immediately in the cuffingof the defendant and the more intrusive searchfinding the item in question upon the personof the defendant.

Defendant asserts that under the recentFourth District case of People v. Fondia, [317Ill. App. 3d 966, 740 N.E.2d 839 (2000),] thatOfficer Cox lacked authority to search thedefendant's watch pocket during this trafficstop. In the Fondia case, the Fourth Districtmade clear that its holding was 'limited tothe facts of record and turns on the absenceof any indicia of suspicion, particular to thedefendant. Without more, the search of defendant's person was not justified.' In Fondia,the dog had alerted at the rear seam of thedriver's door, prompting the police to requirethe three occupants to exit and be subjectedto a search of their person.

In the instant case, the trial courtfinds that there is something more, namely thedefendant's very short visit at 2:00 a.m. to a'known drug house,' his return to a vehiclewhich was argued by the State to have beenunusually parked, and his conduct found by thepolice to be suspicious. This in itself wouldbe insufficient[,] in the court's view[,] tosearch the watch pocket of the defendant.

More importantly, the canine alerted tothe interior of the vehicle, and the analysisof the use of the canine in the instant causepresents a far different situation than therecord presented of the canine's action in theFondia case. In the Fondia case, the majorityopinion strongly faulted the failure of thepolice to use the canine to search the defendant's person and appears to have refused togive the canine's alert on the exterior of thevehicle any weight in determining whether thedetention was lawful. It found the record'totally devoid' of anything that would support speculation that the canine could not beused to make a sniff of the person. It described speculation that the canine could notbe used to make a sniff of the person. Itdescribed speculation by the appellate prosecutor regarding dangers that could be cause[d]by a dog's alert to an individual to be meremusings, pointing out that even the appellateprosecutor conceded at argument that the record contained no such information.

In the instant case, there is testimonyfrom Office[r] Woolford, as the canine officer, that there is what amounts to a risk tothe defendant's safety from the canine thatwould have occurred had the dog been permitted to engage in a sniff of the defendant. The trial court further in the instant causespent considerable time watching a videowhich corroborated that concern. Specifically, the canine in question was a largeGerman Shepherd who reacted strenuously inpawing at the interior of the driver's doorand passenger's door. It is readily apparentto the trial court that concern for thesafety of persons such as the defendant isreasonably founded. Thus, the record beforethis trial court is different than the recordbefore the Fondia court, and it is appropriate that the trial court here give weight tothe alerting by the canine to the interior ofthe vehicle in question.

Taking the totality of the circumstancesin question, the court finds that the searchof the person of the defendant revealing thedrugs in question was constitutional." (Emphasis added.)

In addition, the court stated that the pat-down of defendantimmediately after he got out of the car was valid.

Following an April 2001 bench trial, the trial courtconvicted defendant of possession of a controlled substance (lessthan 15 grams of a substance containing cocaine) (720 ILCS570/402(c) (West 2000)), and the court later sentenced him asstated. This appeal followed.

II. ANALYSIS

A. Standard of Review

In People v. Gherna, 325 Ill. App. 3d 157, 161, 756N.E.2d 468, 472 (2001), this court held that in reviewing thetrial court's determination on a defendant's motion to suppress,the appropriate standard of review is the one set forth by oursupreme court in People v. Crane, 195 Ill. 2d 42, 51, 743 N.E.2d555, 562 (2001). We adhere to Gherna, and thus, we will notdisturb any factual determinations made by the trial court unlessthey are against the manifest weight of the evidence. However,we will review de novo the ultimate determination of whether theevidence should be suppressed. See Crane, 195 Ill. 2d at 51, 743N.E.2d at 562.

B. The Trial Court's Denial of Defendant's Motion To Suppress

Defendant argues that the trial court erred by denyinghis motion to suppress evidence. Defendant does not dispute thatthe initial stop of Roberts' car was valid. However, he contendsthat (1) although he was lawfully seized at the beginning of thetraffic stop, the police officers' "'strategy' to delay the stopin order to increase the probability of a canine alert was anunconstitutional seizure"; and (2) the officers did not haveprobable cause to conduct the search of his person that revealedthe cocaine. For the following reasons, we disagree.

1. Did the Officers Illegally Seize Defendant
During
the Traffic Stop?

Defendant first contends that although he was lawfullyseized at the initiation of the traffic stop, the police officers' "'strategy' to delay the stop in order to increase theprobability of a canine alert was an unconstitutional seizure." We disagree.

Initially, we agree with defendant that he was lawfully"seized" at the initiation of the traffic stop. In People v.Gonzalez, 184 Ill. 2d 402, 418, 704 N.E.2d 375, 382-83 (1998),our supreme court held that because the public interest inofficer safety outweighs the potential intrusion to a passenger'sliberty interests, it is not an unreasonable seizure for a policeofficer "to immediately instruct a passenger to remain at thecar, when that passenger, of his own volition, exits the lawfullystopped vehicle at the outset of the stop." Citing the UnitedStates Supreme Court's decision in Maryland v. Wilson, 519 U.S.408, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997), the court notedthat once an officer effectuates a lawful traffic stop, a passenger of the stopped vehicle is "thereby also stopped." Gonzalez,184 Ill. 2d at 417, 704 N.E.2d at 382. See Wilson, 519 U.S. at413-14, 137 L. Ed. 2d at 47, 117 S. Ct. at 886 ("as a practicalmatter, the passengers are already stopped by virtue of the stopof the vehicle"). In so holding, the Gonzalez court reasonedthat "ordering occupants to remain at the lawfully stoppedvehicle 'does no more than establish the status quo at the timeof the stop.'" Gonzalez, 184 Ill. 2d at 420, 704 N.E.2d at 383,quoting State v. Webster, 170 Ariz. 372, 374, 824 P.2d 768, 770(App. 1991). Thus, the underpinning of the holding in Gonzalezis that an officer's order to return to a lawfully stoppedvehicle is a minimal intrusion on a passenger's liberty becausethat passenger is already detained by virtue of the traffic stopand such a command simply maintains the status quo.

However, this does not end our analysis. We mustaddress defendant's contention that the police officers' "'strategy' to delay the stop in order to increase the probability of acanine alert was an unconstitutional seizure." It is wellestablished that in addition to being justified in the firstinstance, an investigative detention, such as a traffic stop,must be "'reasonably related in scope to the circumstances whichjustified the interference in the first place.'" People v.Brownlee, 186 Ill. 2d 501, 519, 713 N.E.2d 556, 565 (1999),quoting Terry v. Ohio, 392 U.S. 1, 19-20, 20 L. Ed. 2d 889, 905,88 S. Ct. 1868, 1879 (1968). In Florida v. Royer, 460 U.S. 491,500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325 (1983), theUnited States Supreme Court made clear that "an investigativedetention must be temporary and last no longer than is necessaryto effectuate the purpose of the stop." "Brevity is an importantfactor in determining whether a detention was reasonable, but thecourt should also consider whether the police acted diligently inpursuing the investigation." People v. Welling, 324 Ill. App. 3d594, 602, 755 N.E.2d 1049, 1055 (2001). The State bears theburden of showing that a seizure based on reasonable suspicionwas sufficiently limited in scope and duration. Brownlee, 186Ill. 2d at 519, 713 N.E.2d at 565.

In this case, the trial court found that "somewhat morethan 18 minutes" elapsed from the beginning of the traffic stopuntil Roberts consented to the search of her car (which occurredcontemporaneously with the conclusion of the traffic stop). Theevidence showed that during that 18-minute period, Woolford (1)confirmed the status of Roberts' driver's license and her licenseplate registration, and (2) wrote out and issued two trafficcitations. We agree with the trial court that this amount oftime was not "unduly long" to accomplish the traffic stop. Wefurther reject defendant's claim that the officers strategized"to delay the stop in order to increase the probability of acanine alert," resulting in an unconstitutional seizure. Therecord shows that Woolford reasonably believed that the officerswere confronted with a situation involving a more serious crimethan a routine traffic stop. As earlier stated, a few minutesinto the stop, Woolford and Roop had an approximately three-minute-long discussion, in which (1) Woolford expressed hisbelief that reasonable suspicion existed to warrant a caninesniff and explained to Roop how the canine sniff worked; and (2)the officers discussed "strategy and what [they] wanted to do." Woolford acknowledged that during that discussion, he said thatthe officers "should let the odor get in there pretty good." However, Woolford also testified that the traffic stop was notdelayed in order to allow the smell of any narcotics to permeatethe car, and instead, after his brief discussion with Roop, hesimply proceeded as he normally would with the traffic stop. Theevidence showed (1) Woolford acted diligently in completing thetraffic stop and (2) no indication that the officers delayed thestop in an attempt to obtain evidence. Accordingly, under thesecircumstances, we conclude that the 18-minute traffic stop wasreasonable in length and scope.

2. Did Cox Lawfully Search Defendant?

Last, defendant contends that the search of his personfollowing the canine alert was unconstitutional because it wasnot supported by probable cause. We disagree.

Shortly before the police searched defendant and foundcocaine in his pocket, they conducted a pat-down search of hisperson and found some cigarettes and Rolaids. We note that theState argues at length in support of the trial court's findingthat this pat-down of defendant was valid. However, defendantdoes not challenge the pat-down search because the police foundno contraband when conducting it. Thus, we need not address itspropriety.

Probable cause exists when "facts exist that would leada reasonable person standing in the shoes of the police officersto conclude that a crime has been committed and the defendant wasthe person who committed the crime." People v. Robinson, 167Ill. 2d 397, 405, 657 N.E.2d 1020, 1025 (1995). "That is, theexistence of probable cause depends upon the totality of thecircumstances at the time of the arrest." People v. Love, 199Ill. 2d 269, 279, 769 N.E.2d 10, 17 (2002). "'In dealing withprobable cause, *** we deal with probabilities. These are nottechnical; they are the factual and practical considerations ofeveryday life on which reasonable and prudent [people], not legaltechnicians, act.'" Love, 199 Ill. 2d at 279, 769 N.E.2d at 17,quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed.1879, 1890, 69 S. Ct. 1302, 1310 (1949). In addition, thedetection of narcotics by a trained dog is a permissible methodof establishing probable cause. People v. Reeves, 314 Ill. App.3d 482, 489, 732 N.E.2d 21, 26 (2000).

In this case, the trial court found that (1) defendantmade a "very short visit" at 2 a.m. to a "known drug house"; (2)upon leaving that house, defendant returned to a car that wasunusually parked; and (3) during the traffic stop, the officersobserved that defendant's conduct was suspicious. The court'sfindings are clearly not against the manifest weight of theevidence. See People v. Luna, 322 Ill. App. 3d 855, 859, 752N.E.2d 477, 480 (2001) (the trial court is best suited to assessthe witnesses' credibility and weigh their testimony). Weconclude that those facts, when viewed together with the dog'salert on the passenger-side interior door panel, would lead areasonably prudent person standing in the officers' shoes toconclude that defendant had committed the crime of possessingcontraband. We thus affirm the trial court's determination thatprobable cause existed to search defendant.

In so concluding, we fully agree with the trial court's analysis of our decision in Fondia and the court's determinationthat this case is distinguishable. In Fondia, a drug-sniffingdog alerted at the rear seam of the driver's car door. Thedefendant had been riding in the backseat on the passenger sideof the car. After the dog alerted, the police searched all ofthe car's occupants and found contraband on the defendant'sperson. Fondia, 317 Ill. App. 3d at 968, 740 N.E.2d at 841. This court held that the dog's alert at the driver's side doordid not give rise to probable cause to search all of the car'soccupants and that the police should have had the dog sniff allof the occupants, thereby narrowing the focus of the officers'investigation. We reasoned that the officers' "'willful ignorance'" as to whether the dog would have alerted upon sniffingall of the occupants "dissipate[d] the reasonableness of thepolice conduct." Fondia, 317 Ill. App. 3d at 970, 740 N.E.2d at843. We also noted that the record contained no informationabout dangers that could be caused by a dog's alerting to anindividual. Instead, in Fondia, this court was presented withnothing more than the appellate prosecutor's "musings" duringoral argument about such dangers. Finally, we emphasized thatour holding was "limited to the facts of record and turn[ed] onthe absence of any indicia of suspicion particular to defendant." (Emphasis in original.) Fondia, 317 Ill. App. 3d at 972, 740N.E.2d at 844.

In this case, unlike Fondia, "indicia of suspicionparticular to defendant" were present. As previously mentioned, (1) defendant made an early morning, "very short visit" to a"known drug house"; (2) upon leaving that house, defendantreturned to a car that was unusually parked; and (3) defendantacted suspiciously during the traffic stop. Further, unlikeFondia, the record here does not suggest that the officers werein a position of willful ignorance, whereby they had the means tofurther narrow the focus of their search but deliberately chosenot to avail themselves of those means. Instead, the recordshows that (1) Lump, the drug-sniffing dog, was an aggressivealert dog; and (2) defendant's safety would have been compromisedhad Woolford allowed Lump to sniff defendant to see if the dogwould alert again. Accordingly, we agree with the trial court'sdecision to "give weight to the alerting by the canine to theinterior of the vehicle in question."

III. CONCLUSION

In closing, we commend the trial court for its extremely thoughtful written order, which we found very helpful.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

APPLETON, J., concurs.

COOK, J., specially concurs.


JUSTICE COOK, specially concurring:

I concur. As I understand it, we are abandoning theholding in Fondia that after a drug-sniffing dog has alerted on avehicle, indicating the presence of drugs, the police may notconduct a search of the passengers until the police have conducted a canine sniff of the passengers themselves. We nowaccept the proposition that a canine sniff of an individual isnot feasible, because of the danger to that individual if the dogshould alert on the individual.