*1 for further we remand the cause prejudice, with complaint proceedings.
Reversed and remanded. O’BRIEN, JJ., concur.
LYTTON and ILLINOIS, Plaintiff-Appellant, v. OF THE STATE OF THE PEOPLE BARTELT,Defendant-Appellee. CHERYLL. 4 — 07—0311
Fourth District No. 4, September 16, Opinion filed 2008. Argued April 2008 . (Norbert Goetten, J. Barnard, Attorney, Quincy of State’s Jonathan H. Attorneys (argued), all of State’s Biderman, Denise M. Ambrose Robert J. counsel), People. Office, for the Appellate Prosecutor’s Appellate (argued), of State Lang both and Arden J. Gary R. Peterson Office, Springfield, appellee. for Defender’s of the court: opinion delivered KNECHT JUSTICE Bartelt, with defendant, Cheryl L. charged the State July In 646/60(b)(1) (720 ILCS possession methamphetamine unlawful (West 2006)). suppress filed a motion to September defendant court during stop. In March the trial evidence obtained traffic interlocutory appeal granted defendant’s motion. The State filed this 604(a)(1) (210 604(a)(1)). Ill. 2d R. pursuant Supreme Court Rule by granting On court erred appeal, State the trial suppress defendant’s motion to the evidence. reverse. We
I. BACKGROUND hearing sup- At the December 2006 on the defendant’s motion to press, Tyler Quincy Officer Mike employed testified he was with police department years. formally for seven He he also noted was trained in proper procedures for search and seizure. July Tyler
On pickup parked observed a truck on defendant, sidewalk. He recognized belonging the truck as whom he had methamphetamines. heard used He watched the truck for IV2 hours approximately p.m., a one-block distance. At 8:15 building defendant and a man came out of apartment put an and garbage bags the bed of the truck. Defendant reentered the apart- ment, truck, seat, returned to the got pulled into the driver’s and off Tyler sidewalk onto the street. her followed vehicle a short distance gas station, to a As pulled up gas Tyler station. defendant turned lights police of his car.
Tyler approached the truck and told defendant her truck was sit- ting hours, on the sidewalk for in violation of the Illinois Vehicle IV2 (625 1303(a)(1)(b) (West 2006)). Code Tyler ILCS explained 5/11 — violation, defendant’s got her insurance and driver’s license informa- tion, and returned to his vehicle to run the through driver’s license system. LEADS
Officer Tyler Darin Kent arrived on the scene while running was license, the driver’s and he asked Tyler up to set the truck for a canine Tyler sniff. up ordered defendant to roll the windows and turn the vents “on high” blowing Tyler any out air. did not illegal observe Max, canine, items in Kent view. then ran his around the truck. Max Tyler alerted on both doors. ordered defendant out of the vehicle Tyler and asked whether anything illegal was the vehicle. sent defendant to the rear of the truck to talk to Kent.
Tyler testified briefly pas- Kent searched both defendant and the senger. Tyler then watched Kent passenger defendant and the while searched the permission cab the truck. Kent did not ask to search the vehicle because the dog had alerted to the vehicle. Kent found a wallet, scale, pen casing in a tinfoil. digital piece and a burnt More burnt tinfoil garbage bags was found inside the the bed of the Officer Darla Pullins arrived and
truck. Defendant was arrested. police headquarters, then drove her to searched defendant and attorney, rights. her Defendant asked for an defendant was read Tyler question did not her. parked the truck on the
Tyler stated when he first noticed viola- responsible who for the vehicle sidewalk he did not know was plate, Tyler became interested up tion. After he looked the license Kent he was wait- drug sniff and alerted conducting a traffic minutes estimated Kent arrived within three ing Tyler for the driver. stop. of the traffic car, up to set he
Tyler testified when he ordered defendant high vents on all the windows and turn the up directed her to roll through the set he directs the blowing Tyler goes air. said when he go says, you and then “Can put auxiliary power driver the car on your high.” turn blowers on your close all windows and [and] ahead taught is one at the canine Tyler set-up procedure also testified the for a sniff. prepare officers do so to academy prefers and Kent technique forces air out of a vehicle. This Quincy police employed he was as a Officer Darin Kent testified handler for the street- years and had been a canine officer for IOV2 Max, and Max was a unit since 2002. His canine’s name crimes detection, tracking, article drug trained in full-service canine training initially took a 10-week searches, searches. Kent and area *3 course, independent evaluator and he and Max recertified with an techniques trained in advance six months. Kent had also been every an instructor for new canine and later became for canine SWAT Illinois State Police. through handlers the sniff, he the Kent stated directed Immediately before a canine off, auxiliary, to turn the blower engine key the turn the driver to turn drug odors windows, the doors to force high, roll and close up on specifically are trained through the seams of the vehicles. Canines comply with the they drivers need to a vehicle’s seams. Kent tells sniff complying. them into but he does not threaten up, set case, the exterior Kent conducted During the traffic this passenger on both the driver of the vehicle. Max alerted sniff odor, breathed alerted, body his squared Max he sides. When squad out, Kent returned Max and barked. rapidly, put paw his end casing with a burnt pen He found a the vehicle. car and searched tinfoil, inside, strips burnt on the several substance powder and a digital and a scale. Illinois technique by the taught set-up also said he was
Kent same. Drivers are taught officers the and he in turn State Police up. set Kent testi- the vehicle request officers given warning before he would regarding probable fied to avoid issues a search before cause auxiliary power not reach his own hand into a vehicle to turn on the or blower.
The trial he would questioned get court then Kent about how typically consent to search a vehicle. Kent testified officers “finish a *** traffic stop, completely stop, [and] release them from the traffic they us[,] then ask if have time speak with at which time we will then ask they up for consent to search the vehicle.” set a vehicle When dog sniff, for a says, your the officer roll “[Y]ou need to windows your high.” and turn vents on present option Kent does not it as an occupants of the vehicle. counsel, Upon arguments conclusion of granted the trial court evidence, suppress reasoning motion to as follows: probable “The officers had no cause to enter the vehicle before By defendant, consent, Max requiring alerted. without her close the doors and windows and turn the blower on high, the offic ers in effect moved and manipulated the air within the vehicle that subject would not otherwise have been to their view or smell. Max lawfully could not be lawfully where the officers could not be. lawfully vehicle, The officers could not be in the and therefore Max lawfully could not be in the In ‘plain vehicle. order for the view’ or ‘plain smell’ applicable, officer, doctrines to be and in this case Max, had to in place they lawfully they be could be before lawfully could view or recognizes smell. The court that Max was alerted, still outside the defendant’s truck when he analogy but the (M.D. Hutchinson[, [United States v.] 471 F. Pa. 2007)], applicable logical. effect, seems placed Max was inside the Applying vehicle the officers. logic, Hutchinson court finds that the directing of the defendant to close the truck’s windows and door and to turn on high the blower on turned the dog sniff into an unreasonable search under the fourth amend ment.”
II. ANALYSIS
This court
ruling
will reverse a trial court’s
sup
a motion to
press where it involves credibility assessments or factual determina
tions only
against
if it is
weight
manifest
of the evidence. People v.
(2006).
Driggers,
222 Ill. 2d
A reviewing
N.E.2d
court examines de
ruling granting
denying
novo the ultimate
or
*4
motion
suppress.
70,
to
222
Driggers,
Ill. 2d at
At the arguments appeal we note the are limited to the set-up technique employed by police prior dog sniff and no other portion of the is question at issue. The is whether police order to defendant to her up roll windows and turn the blower
1032 interest and constituted a upon legitimate privacy intruded high the fourth amendment.
search under decision should be reversed argues The State the trial court’s the nature change the vehicle did not Tyler’s because orders to set (1) Max remained outside unlawful search because of the sniff to an (2) privacy legitimate expectation had no the vehicle and defendant lawfully her emanating odors potentially incriminating in the vehicle. stopped society that is expectation privacy when an
“A ‘search’ occurs
v. Jacob
infringed.” United States
consider reasonable is
prepared to
1652,
S. Ct.
1656
sen,
109, 113, 80 L. Ed. 2d
466 U.S.
(1984).
revealing
possibility
that has a remote
A field test
“actually compromise any
unlikely to
highly
noncriminal
fact is
be characterized as a search
privacy”
interest in
and cannot
legitimate
124,
Ed.
Jacobsen,
The State than luggage for a sniff agents propping compared government precedent Federal in its interior. or a container opening a vehicle the fourth amendment agents do not violate suggests government sniff for a canine luggage defendant’s to facilitate they prepare a when 1981) (5th 509, Cir. Viera, 644 F.2d 510-11 See United States v. drugs. bags by pressing agents prepare government that where (holding air, this does slowly circulating the the hands and lightly with Lovell, 910, 915 849 F.2d search); see also United States constitute a (DEA) (5th 1988) Administration (noting Drug Enforcement Cir. bags to force defendant’s the sides of compressed agents touched to a sniff, did not amount canine this to facilitate a air out of them search). by the trial court relied on argues the decisions The State also set-up make the by analogy suppress do not motion to grant 324-25, 321, 94 L. Hicks, 480 U.S. See Arizona technique a search. (1987) (noting plain-view 353-54, 107 S. Ct. Ed. 2d then further seize an item and does not allow exception view). Guided are not parts the item’s investigate 2d at stated Hutchinson, 471 F. Hicks, the court
1033 “ ” where an officer application doctrine should have no ‘plain smell’ detecting the vehicle or other container to assist a canine “opens a contraband, already the canine has not presence of and where of it detected the scent positively alerted or indicated that has contrast, plain-sniff In “the rule contraband within the container.” interven- by not aided in its sniff an apply dog would because the it in an area in which was ing dog officer and the detected the odor 510; United lawfully present.” Hutchinson, Supp. 471 F. 2d at see also (10th 1998) 1328, (suppress- v. 140 F.3d 1329 Winningham, States Cir. ing sliding evidence the van’s door patrol agents opened where border vehicle). dog’s entry to allow the into the
The street public State further contends the driver of a car on a legitimate has no air from his expectation privacy of the ambient vehicle, if the lawfully Specifically, detained. the order to turn on blower did not upon legitimate privacy not intrude interest and was equivalent case, the of a In physical entry into the vehicle. this Max’s nose did not intrude constitutionally protected into the area of the truck, defendant’s truck. Max’s sniff was limited to the exterior of the be, right where he had a incriminating and the odors from the methamphetamine were expelled public outside into the air. The canine sniff was focused only to reveal or absence of contraband and thus was not a fourth-amendment search.
Defendant the trial court made the correct decision in granting suppress. the motion to The court looked at the conduct of police after stop validity. to determine its The court distin guished Caballes, 405, 842, this case 543 U.S. 160 L. Ed. 2d 125 834, 65, 414, S. Driggers, Ct. and 222 Ill. 2d 853 N.E.2d because officer ordered the car’s blower turned on. The order turned the law ful dog sniff into an search unreasonable under the fourth amend ment. Hutchinson,
In
the court noted it was not clear the decisions in
Edmond,
32,
333,
City Indianapolis v.
531
148 Ed.
121
U.S.
L.
S.
(2000),
Caballes,
405,
842,
Ct. 447
125
543 U.S.
L. Ed. 2d
S.
834,
support
Ct.
“would
a dog sniff that moves from the exterior of an
Hutchinson,
automobile to the interior of the car.”
471 F.
2d at
(10th
Stone,
359,
1989),
505. In
United States v.
866 F.2d
Cir.
Tenth
opined people
expectation
privacy
Circuit
have a reasonable
automobiles,
in the
their
it
interior sniff as
upheld
interiors of
but
an
jumped though
open
lawful where a canine
an
hatchback and alerted
Stone,
open
on a
bag.
police
duffle
never asked the defendant
jump
into the car.
encourage
hatchback and did
the canine
Stone,
sup-
The trial court here relied on the Hutchinson
The court
found
in the interior of the vehicle
greater expectation
privacy
Further,
set-up
than on the exterior.
sniff was tainted
police
interior of the car via
orders of the
because it invaded the
suspicion
prob-
action and the orders were made before reasonable
or
able cause existed.
Love,
199 Ill. 2d
Defendant
Love,
(2002),
argument. In
officers
support
her fourth-amendment
Ohio,
with
392 U.S.
20 L. Ed. 2d
Terry
made a
accordance
(1968),
observing
appeared
“what
to be a
Defendant order this case was plain interior of the car for the canine’s magnify the odors from the defendant sit- analogous police being sniff and is allowed to order the car to purse in her or other container within ting open vehicle sequence increase view of the interior. Defendant contends alert and satisfy drug-dog the fourth amendment is first a required to orders, impermissible than first permissible requests then or rather by inspection. followed a canine requests or orders illuminates reasonable Supreme A recent decision Court Moore, In Virginia fourth amendment. v. search and seizure under the (2008), 164, 559, S. 1598 the Court 553 U.S. 170 L. Ed. 2d 128 Ct. stated: answer, have history a conclusive we provided has not
“When
light
of traditional standards
analyzed a search or seizure
hand,
which
‘by
degree
one
assessing,
reasonableness
and,
other,
on the
privacy
an individual’s
upon
it intrudes
promotion
legitimate
[to]
which it is needed
degree to
” Moore,
171,
2d at
1035 347, 573, 1536, Vista, 318, 549, 121 1554 532 U.S. 149 L. Ed. 2d S. Ct. (2001).
The Idaho
what is reasonable under
Supreme Court considered
Irwin,
102,
the fourth amendment in State v.
143 Idaho
At oral defense counsel conceded that the officer properly could order the driver get essentially out of the truck (2) whenever the officer wished and had the officer waited until the dog was present door, at the through truck’s front which the driver get vehicle, would out of the ordering before (thereby the driver out bringing her), ambient air with then she would have no basis to complain about the light conduct. In of traditional standards of reasonableness, the degree to which this conduct intruded on privacy defendant’s borders on de minimis. The being driver is asked *7 to expose a little more ambient air than would have otherwise been exposed. may The conduct be promotion needed for the of legitimate governmental interests, i.e., detecting illegal drugs in the ambient air of the dog. vehicle’s interior a trained set-up
We find the
technique
practical
to be a
tool of police work
that does not interfere with
expectation
privacy
the reasonable
in
Caballes,
interior of
dog
defendant’s car. Under
sniff
“[a]
during
conducted
a concededly
stop
lawful traffic
that reveals no
information other than the location of a substance that no individual
right
[the]
has
to possess does not violate the [flourth [a]mendment.”
Caballes,
The quick is and it does not stop. It also ensures lengthen the duration of impermissibly sniff, doors as both the during outside the vehicle canine remains balances a practical technique This is a are closed. and windows privacy opportunity with the expectation reasonable defendant’s ferret out crime. No fourth-amendment law enforcement allow traffic viola- lawfully investigating an officer a violation occurs when the blow- the windows and turn on occupant orders the to roll tion dog a sniff. ers to facilitate
III. CONCLUSION stated, judgment sup- the trial court’s For the reasons we reverse proceedings. for further evidence and remand pressing Reversed.
STEIGMANN, J., concurs. COOK, dissenting:
JUSTICE the circuit affirm the decision of I dissent and would respectfully court. for a traffic violation stopped who has a vehicle
A officer chemical tests. to order and conduct authority not have unbridled does vehicle, probable cause or not search the absent may The officer driver, certainly not may not force the consent. The officer test, the driver’s although Breathalyzer to a passengers, to submit People v. prosecution. in a DUI to do so will be admissible failure (2005). However, Jones, 214 Ill. 2d 824 N.E.2d “Plain view” things plain view. required ignore officer is not at the smell” of a “plain be within the includes items that would case, impermissibly the officer present In the exterior of a vehicle. of the occupants view and ordered beyond went what was testing. engage vehicle out its this case and set thought lot of gave
The court circuit carefully written order: reasoning in really issue proper, determined that the
“Having [a]mend- [flourth not the defendant’s down to whether or boils her to close instructing by the officers rights ment were violated high. This the blowers on doors and turn the truck’s windows and for the There was no basis impression. to be a case of first seems There on the truck. Max alerted truck before officersto search the fact, alert, no prior to Max’s consent to search was no officers. by the requested ever the truck was to search consent Max truck before to search the probable cause There was no alerted.
1037
length
the
of the
was not
important
It is
to note that
unreasonably
by
involving the canine officer
extended
virtue of
approximately
Officer Kent arrived with Max within
stop.
this
car,
Tyler
Tyler stopping
minutes of
the
and Officer
three
Officer
on the truck.
writing
parking
was still
the
ticket when Max alerted
(See
(1999),
Brownlee,
501[,
People
556]
v.
Ill. 2d
713 N.E.2d
186
(2003),
Gonzalez,
220[,
and
People
260]
v.
204 Ill. 2d
789 N.E.2d
(2003).)
Bunch,
People
7[,
1024]
207
796 N.E.2d
v.
Ill. 2d
Caballes,
405[,
Illinois v.
543 U.S.
160 L. Ed. 2d
125 S. Ct.
(2005),
dog
drugs
change
that a
sniff for
does not
the
834]
holds
already
dog
and that such a
sniff does
proper stop
character of an
constitutionally
infringe
protected right
privacy.
on a
[fjourth
Therefore,
A
subject
it is not a search
Amendment.
contraband,
drug dog’s
only
people
sniff reveals
and
Thus,
legitimate
have no
interest
contraband.
no
possessing
by
legitimate privacy
compromised
drug dog’s
interest is
sniff.
Caballes,
408[,
It seems to note that in and v. Caballes gers, 65[, (2006), 222 Ill. 2d drug dog 414] 853 N.E.2d another case [fjourth in which the sniff implicate was not found to Amend ment, the sniffs occurred on the exterior of the vehicle. In the case hand, at Max alerted on the defendant’s truck from the outside of truck, but he had help. drug-tainted some The air from the interior being by forced out of the truck turned-up blow by defendant, only ers. The blowers were upon turned but the demand of the argue officers. The State would that since the defendant constitutionally protected does not have a interest odor, contraband or its the distinction makes no substantive differ The ence. State that right since the had the to direct get truck, the defendant to out of her then the air inside is exposed by opening of the If door. Max had alerted on the truck from door,
the exterior of the through open truck then Caballes Driggers clearly However, apply. would hap that is not all that pened in this case.
While, again, exactly there appear point, does not to be a case the court finds the case of [United States] v. Hutchinson, [471] F. [497] (M.D. Pa. [2007]), to be helpful addressing the is sue. Hutchinson contains line thorough a rather discussion of a drug cases that holds that an dog through when a enters a vehicle already accord, by opened door or window of its own driven its instincts, entry natural dog’s into the vehicle does (Among invalidate an otherwise lawful sniff. the cases cited are two Stone, supplied by in this [United States] case the defense: 866 ([10th 1989), Winningham, Cir.] F.2d 359 [United States] 1998).) ([10th Winningham, drug dog alerted Cir.] F.3d defendant at entering through opened after the van a door The held making stop. the direction of the officer a lawful court consent for the to enter the given that the defendant had not *9 van, discovery in violation resulting drugs and therefore the was [ajmendment. [Qourth used the of the The court Hutchinson analysis impact smell’ doctrines in its of the ‘plain ‘plain view’ entry legality into a vehicle to determine the of the drug dog’s *** majority have concluded that ‘[T]he seizure. of federal courts law of the interior of a vehicle or other container are canine sniffs ful, may constitution suggest but that such interior sniffs become accomplished interior sniff is or ally infirm in the event that the [Hutchinson, Supp. 2d] 417 F. at by facilitated the officer-handler.’ ‘Notably, has held that where an officer Supreme [508]. the Court lawfully location moves or present particular [a] is at who view, the officer has object plain an seen in and where manipulates item, moving or to search the the act of probable no cause under object constitutes an unreasonable search manipulating the [fjourth subject plain[-]view is not [a]mendment the that [Hutchinson, [509]. at The court Supp. 2d] doctrine.’ 471 F. opens officer a vehicle goes on to hold that ‘Where an Hutchinson detecting to assist a canine in or other container contraband, already positively alerted and where the canine has not within the it has detected the scent of contraband or indicated that container, “plain to conclude that smell” logical it seems positive sniff that application, should have no since doctrine by of impermissibly presumably aided or achieved results was [Hutchinson, F. 2d container.’ manipulation ficer’s of the ruled, consistent states have at in at least two other 510]. Courts drug dog encourages when an officer reasoning, with this that alerted on the vehicle’s when it had not first enter a vehicle (See search. exterior, dog’s constituted an unlawful that the actions [12,] 139[, (1997), and Warsaw, 143] 956 P.2d 125 N.M. State 1219[, 852, [860,] Freel, 1225] 32 P.3d App. 29 Kan. State (2001).) logic ap- Hutchinson seems directly point, again not While probable had no cause to hand. The officers plicable to the case at defendant, By requiring Max alerted. enter the vehicle before turn the consent, and windows and her to close the doors without manipulated in effect moved and high, the officers blower on subject have been not otherwise the vehicle that would air within lawfully not be where smell. Max could to their view or lawfully be in could not lawfully be. The officers officers could not lawfully in the vehicle. be vehicle, Max could and therefore ap- to be smell’ doctrines ‘plain view’ or ‘plain In order for the officer, Max, plicable, place and in this case had to be in a they lawfully they lawfully view or could be before could smell. The court Max still outside the recognizes alerted, defendant’s truck Hutchin- analogy when he but the effect, applicable logical. placed son seems Max was inside Applying logic, the vehicle the officers. the Hutchinson the court finds that the directing of the defendant to close the truck’s high windows and doors and to turn the blower on turned the [fjourth sniff [a]mendment. into an unreasonable search under the Therefore, the court grants suppress the defendant’s motion to evidence, and all evidence seized from the defendant’s truck is hereby suppressed.”
We should affirm. *10 ILLINOIS,
THE PEOPLE OF THE STATE Plaintiff-Appellee, OF v. AARON BEASLEY,Defendant-Appellant. M.
Fourth District No. 4 — 07—0474
Opinion August filed 2008.