Find Legal Information

Docket No. 91547-Agenda 17-January 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROY I. CABALLES, Appellant.

Opinion filed November 20, 2003.

JUSTICE KILBRIDE delivered the opinion of the court:

Defendant, Roy I. Caballes, challenges the procedures used bypolice during a routine traffic stop. Defendant unsuccessfullyattempted to suppress evidence of marijuana found in the trunk of hiscar after an alert by a drug-detection dog and was subsequentlyconvicted of one count of cannabis trafficking (720 ILCS 550/5.1(a)(West 1998)). The appellate court affirmed the conviction, finding thatreasonable articulable suspicion was not needed to conduct a caninesniff and that defendant was unjustifiably detained by the police foronly a de minimis period of time. We reverse and hold that the trialcourt should have granted defendant's motion to suppress based onthe unjustified expansion of the scope of the stop. See People v. Cox,202 Ill. 2d 462 (2002).

BACKGROUND

On November 12, 1998, Illinois State Police Trooper DanielGillette stopped defendant on Interstate Route 80 in La Salle Countyfor driving 71 miles per hour in a zone with a posted speed limit of 65miles per hour. Trooper Gillette radioed the police dispatcher that hewas making the traffic stop. On hearing Gillette's radio transmissionreporting the stop, Trooper Craig Graham of the Illinois State PoliceDrug Interdiction Team announced to the dispatcher he was going tomeet Gillette to conduct a canine sniff. Gillette, however, did notrequest Graham's assistance.

Gillette approached defendant's car, informed him that he wasspeeding, and asked for his driver's license, vehicle registration, andproof of insurance. Defendant complied with Gillette's requests.Gillette testified that while at defendant's car he noticed an atlas onthe front seat, an open ashtray, the smell of air freshener, and twosuits hanging in the back seat without any other visible luggage.

Gillette then instructed defendant to reposition his car on theshoulder of the road so the two vehicles would be out of traffic and tocome back to the squad car because it was raining. Defendantcomplied, and Gillette told defendant he was only going to write awarning ticket for speeding. Gillette then called the police dispatcherto ascertain the validity of defendant's license and to check foroutstanding warrants.

While waiting for the results of the license check, Gillette askeddefendant where he was going and why he was "dressed up."Defendant replied that he was moving from Las Vegas to Chicago. Hewas accustomed to being dressed up because he was a salesman,although he was not currently employed. Gillette testified thatdefendant continued to act nervous even after being told he wasreceiving only a warning ticket. Gillette considered defendant'scontinued nervousness unusual.

Dispatch informed Gillette that defendant had surrendered a validIllinois license to Nevada, but the validity of his Nevada license wasnot confirmed for two more minutes. After receiving thatconfirmation, Gillette requested defendant's criminal history. He thenasked defendant for permission to search his vehicle, and defendantrefused to give consent.

Gillette next asked defendant if he had ever been arrested, anddefendant responded that he had not. The dispatcher subsequentlyreported that defendant had two prior arrests for distribution ofmarijuana, and Gillette began to write the warning ticket. He wasinterrupted by another officer calling him over the radio on anunrelated matter. Gillette testified he was still writing the warningticket when Trooper Graham arrived with his drug-detection dog andbegan walking around defendant's car. The dog alerted at defendant'strunk in less than a minute. After Graham advised him of the alert,Gillette searched defendant's trunk and found marijuana.

Defendant was then arrested and taken to the police station,where he signed the warning ticket. He was subsequently chargedwith one count of cannabis trafficking (720 ILCS 550/5.1(a) (West1998)).

Defendant filed a motion to suppress the drugs found in the trunkand to quash the arrest. The trial court denied the motion and founddefendant guilty after a bench trial. Defendant was sentenced to 12years in prison and ordered to pay a street value fine of $256,136.

Defendant appealed, and the appellate court affirmed, finding thatthe police did not need reasonable articulable suspicion to justify thecanine sniff and that, although the criminal history check improperlyextended defendant's detention, the delay was de minimis. No.3-99-0932 (unpublished order under Supreme Court Rule 23). Thiscourt granted defendant's petition for leave to appeal. 177 Ill. 2d R.315.

ANALYSIS

On appeal, defendant challenges the denial of his motion tosuppress the evidence uncovered by the canine sniff. This courtrecently decided a similar issue in People v. Cox, 202 Ill. 2d 462(2002). In that case, we applied the two-part test adopted in Terry v.Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), todetermine the overall reasonableness of the stop. Cox, 202 Ill. 2d at467. Although a traffic stop was not at issue in Terry, this court haspreviously applied the principles of that case to routine traffic stops.See People v. Gonzalez, 184 Ill. 2d 402, 421-22 (1998) (citingMichigan v. Long, 463 U.S. 1032, 1047-52, 77 L. Ed. 2d 1201, 1218-22, 103 S. Ct. 3469, 3480-82 (1983), and Pennsylvania v. Mimms,434 U.S. 106, 111-12, 54 L. Ed. 2d 331, 337-38, 98 S. Ct. 330, 334(1977)). Accordingly, we will also apply the Terry test in this case.We must consider: "(1) 'whether the officer's action was justified atits inception' and (2) 'whether it was reasonably related in scope tothe circumstances which justified the interference in the first place.' "People v. Brownlee, 186 Ill. 2d 501, 518-19 (1999), quoting Terry,392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879. Here, it isundisputed that the traffic stop was properly initiated. Thus, we needonly examine the second part of the Terry test, concerning thereasonableness of the officer's conduct. The State bears the burden ofestablishing that the conduct remained within the scope of the stop.Cox, 202 Ill. 2d at 467.

In Cox, we concluded that evidence obtained by a canine sniffwas properly suppressed because calling in a canine unit unjustifiablybroadened the scope of an otherwise routine traffic stop into a druginvestigation. Cox, 202 Ill. 2d at 469, 471. We emphasized that thesniff was impermissible without " 'specific and articulable facts' " tosupport the stopping officer's request for the canine unit. Cox, 202 Ill.2d at 470-71.

Here, as in Cox, the State has not offered sufficient justificationfor implementing a canine sniff. The police did not detect the odor ofmarijuana in the car or note any other evidence suggesting thepresence of illegal drugs. See Cox, 202 Ill. 2d at 469. AlthoughOfficer Gillette did not actively summon Trooper Graham and his dogfor the purpose of conducting a canine sniff, as occurred in Cox, theoverall effect remains the same. As in Cox, the police impermissiblybroadened the scope of the traffic stop in this case into a druginvestigation because there were no specific and articulable facts tosupport the use of a canine sniff. See Cox, 202 Ill. 2d at 469.

Moreover, the observations made by Officer Gillette during thestop that (1) defendant said he was moving to Chicago, but the onlyvisible belongings were two sport coats in the backseat of the car, (2)the car smelled of air freshener, (3) defendant was dressed for businesswhile traveling cross-country, even though he was unemployed, and(4) defendant seemed nervous were insufficient to support a caninesniff. The lack of visible luggage in the interior of the car may bereadily explained, since any personal items being transported couldhave been stored in the trunk or shipped separately. While airfresheners may be used to mask the odor of contraband, air freshenersare also used in cars to mask other odors such as cigarette smoke. Asfor defendant's choice of travel attire, we fail to see how his statedpreference for business clothing suggests any involvement in past orpresent criminal activity. Also, the general allegation that defendantappeared nervous, without more, cannot serve as a reasonable basisfor further detaining defendant. See People v. Ortiz, 196 Ill. 2d 236,266-67 (2001).

Finally, even when these factors are viewed together, theyconstitute nothing more than a vague hunch that defendant may havebeen involved in possible wrongdoing. Accordingly, we hold that thetrial court should have granted defendant's motion to suppress basedon the unjustified expansion of the scope of the stop.

CONCLUSION

Here, as in Cox, 202 Ill. 2d at 470-71, a canine sniff wasperformed without " 'specific and articulable facts' " to support itsuse, unjustifiably enlarging the scope of a routine traffic stop into adrug investigation. Under these circumstances, the trial court shouldhave granted defendant's motion to suppress the evidence obtainedafter the police dog's alert.

The judgments of the appellate court and the trial court arereversed.

Judgments reversed.

JUSTICE THOMAS, dissenting:

With today's decision, the dicta in People v. Cox, 202 Ill. 2d 462(2002), becomes the law. Because I strongly disagreed with the Coxdicta, I dissent from the majority opinion.

In Cox, this court upheld a suppression order on the basis that thedefendant had suffered an illegal detention. Cox, 202 Ill. 2d at 469-70.After so concluding, the court tacked on a gratuitous section thatconcluded that the police may not conduct a canine sniff of a vehicleunless they have a reasonable, articulable suspicion that the car'soccupants are possessing a controlled substance. Cox, 202 Ill. 2d at470-71. According to the Cox majority, Terry principles governwhether the police may conduct a canine sniff of a lawfully detainedvehicle. Cox, 202 Ill. 2d at 466-68.

As I explained in my dissent, the section of the majority opiniondealing with the canine sniff was dicta because the majority hadalready concluded that the evidence had to be suppressed because thedefendant was subjected to an illegal detention. See Cox, 202 Ill. 2dat 478 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.);see also Best v. Taylor Machine Works, 179 Ill. 2d 367, 470 (1997)(generally, this court will not "engage in speculative analysis or ***render an advisory opinion *** where, as in the instant case, suchanalysis or opinion is not necessary for the disposition of the cause").In the case before us, the Cox dicta supplies the sole support for themajority's holding, and thus the dicta is now the law.

Typically, having once voiced disagreement with an opinion, ajustice will follow the opinion in future cases because of stare decisisconsiderations. I cannot do that with Cox because that case is whollyincompatible with United States Supreme Court cases construing thefourth amendment. This court is obligated to follow decisions of theUnited States Supreme Court on questions of federal constitutionallaw, and I cannot join an opinion that fails to do so.

As I explained in Cox, under the Supreme Court cases, a caninesniff is not a search. See City of Indianapolis v. Edmond, 531 U.S. 32,148 L. Ed. 2d 333, 121 S. Ct. 447 (2000); United States v. Place, 462U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). In Cox, themajority refused to acknowledge that a canine sniff is not a search andfailed to discuss City of Indianapolis or Place. If a sniff is not asearch, then the police do not need probable cause to conduct one.Further, allowing a canine to sniff a vehicle that is already detaineddoes not transform the seizure into a fourth amendment search. TheSupreme Court made this plain in City of Indianapolis:

"It is well established that a vehicle stop at a highwaycheckpoint effectuates a seizure within the meaning of theFourth Amendment. [Citation.] The fact that officers walk anarcotics-detection dog around the exterior of each car at theIndianapolis checkpoints does not transform the seizure intoa search. [Citation.] Just as in Place, an exterior sniff of anautomobile does not require entry into the car and is notdesigned to disclose any information other than the presenceor absence of narcotics. [Citation.] Like the dog sniff inPlace, a sniff by a dog that simply walks around a car is'much less intrusive than a typical search.' [Citation.]" Cityof Indianapolis, 531 U.S. at 40, 148 L. Ed. 2d at 342-43,121 S. Ct. at 453.

After ignoring the cases holding that canine sniffs are notsearches, the Cox majority held that sniffs were controlled by Terryprinciples, even though the Supreme Court has made it clear thatTerry applies only to searches for weapons. It has never beenextended to general searches for incriminating evidence. As Iexplained in Cox:

"I also disagree with the appellate court's holding (and themajority's apparent implied holding) that canine sniffs shouldbe considered limited investigatory stops governed by Terryv. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868(1968). Terry allows the police to briefly detain an individualwhen the officer 'observes unusual conduct which leads himreasonably to conclude in light of his experience that criminalactivity may be afoot.' Terry, 392 U.S. at 30, 20 L. Ed. 2d at911, 88 S. Ct. at 1884. Additionally, the officer is allowed,without a warrant, to conduct a careful limited search of theperson when his observations reasonably lead him to believethat the person might be carrying a weapon. The purpose ofthe 'frisk' is to allow the police, for their own safety and thesafety of others, to determine if the person is armed. Terry,392 U.S. at 27, 20 L. Ed. 2d at 90, 88 S. Ct. at 1883. TheCourt reached its decision by balancing the need to searchagainst the invasion the search entails. Terry, 392 U.S. at 21,20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80, quotingCamara v. Municipal Court, 387 U.S. 523, 536-37, 18 L.Ed. 2d 930, 940, 87 S. Ct. 1727, 1735 (1967). As ProfessorLaFave has noted, however, 'there is no search-for-evidencecounterpart to the Terry weapons search, permissible on onlya reasonable suspicion that such evidence would be found.'4 W. LaFave, Search & Seizure