THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL P. COSBY, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HUGO MENDOZA, Appellee.
No. 100681, No. 102584
Supreme Court of Illinois
September 18, 2008
Rehearing denied November 24, 2008
Appellate court judgments reversed; circuit court judgment affirmed.
Michael J. Pelletier, State Appellate Defender, Robert Agostinelli, Deputy Defender, and Verlin R. Meinz and Thomas A. Karalis, Assistant Deputy Defenders, of the Office of the State Appellate Defender, of Ottawa, for appellee.
No appearance for appellee.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Thomas and Karmeier concurred in the judgment and opinion.
Justice Freeman concurred in part and dissented in part, with opinion, joined by Justices Kilbride and Burke.
OPINION
These consolidated cases involve unrelated traffic stops of vehicles driven by defendants Cosby and Mendoza.
BACKGROUND
Michael Cosby
The State initially charged Cosby with unlawful possession of drug paraphernalia (
The trial court denied the motion to suppress, but did not explain its reasoning.
At Cosby‘s trial, Kaus testified that at approximately 1:30 a.m. on July 12, 2001, he stopped Cosby‘s car for having no rear license plate light. Cosby handed him a speeding ticket and an insurance card. Kaus went back to his squad car, where he called for backup in anticipation of requesting Cosby‘s consent to search his car. About five minutes later, the backup officer arrived. Kaus went back to Cosby‘s car, returned the speeding ticket and insurance card, and gave Cosby a written warning about the rear registration light. Kaus then asked Cosby for consent to search his car, which Cosby gave. Prior to searching the car, Kaus asked for and received consent from Cosby to search his person. Cosby removed all items from his pockets, Kaus inspected them, and Cosby replaced the items in his pockets. Kaus then proceeded to search Cosby‘s car. Kaus found a crack pipe in the car‘s center console. He placed Cosby under arrest and
The jury convicted Cosby of the possession charge and, following a sentencing hearing, the trial court sentenced Cosby to 24 months of probation, six months in the county jail, and payment of fines. Trial counsel filed a motion to reconsider sentence, which was denied. Counsel did not file a posttrial motion.
Cosby appealed, arguing that the trial court erred in denying his motion to suppress evidence. The appellate court first addressed Cosby‘s forfeiture of his argument on appeal, noting that Cosby had failed to preserve the issue in a posttrial motion. However, the appellate court elected to consider the issue, “[b]ased on the constitutional nature and underlying implication of the alleged error.” Relying on this court‘s decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), the appellate court held that Kaus’ questioning of Cosby and his search of Cosby‘s car were unrelated to the circumstances justifying the stop, that Kaus lacked any reasonable, articulable suspicion that would support his further detention and questioning of Cosby, and that Kaus’ actions impermissibly prolonged Cosby‘s detention and changed the fundamental nature of the stop. Accordingly, the appellate court held that the motion to suppress should have been granted. Cosby, No. 3-03-0681 (unpublished order under Supreme Court Rule 23).
Justice Schmidt dissented, arguing that Gonzalez has been implicitly overruled by the United States Supreme Court‘s decision in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005). Relying on other decisions of this court and the Supreme Court, Justice
We granted the State‘s petition for leave to appeal (
Hugo Mendoza
Mendoza was charged in the circuit court of Kane County with unlawful use of a weapon (
After determining that the license and insurance card were valid and that Mendoza had no outstanding warrants, the officers decided to ask Mendoza for permission to search his car. In explaining this decision, Wiencek, who had been a gang investigator for seven years, testified that the neighborhood was known for its gang activity. Although Wiencek did not know whether Mendoza was a gang member, he knew from covert surveillance, police reports, and interviewing people that Mendoza was an “affiliate” of the Vice Lords. Mendoza had been seen in the presence of gang members. The bandana hanging from Mendoza‘s rearview mirror was red, which was one of the colors used by the Vice Lords. Using the bandana was one way of signifying affiliation with the
Meanwhile, Wiencek, who was standing on the passenger side of the car, shined his flashlight inside the car and saw the butt of a gun sticking out from under the driver‘s seat between Mendoza‘s feet. Not wanting to create a hostile situation by drawing his gun on Mendoza, Wiencek tried to surreptitiously signal Weber to the presence of the gun. However, Weber was talking to Mendoza and Wiencek could not get Weber‘s attention. After Mendoza refused consent to search his car, Weber told him he was free to leave. Mendoza started to drive away and Wiencek told Weber about the gun. Weber yelled at Mendoza to stop, but he did not. The two officers got into their squad car and drove after Mendoza. Wiencek could see Mendoza‘s head and shoulders moving, but could not tell what he was doing. Weber did not notice any movement. The officers pulled Mendoza over again. They ordered Mendoza to exit the car. They handcuffed him and patted him down. Wiencek searched the car. Although Wiencek did not find a gun under the driver‘s seat, he found a handgun underneath a plastic tray in the center console of Mendoza‘s car.
The trial court, relying on Gonzalez, granted Mendoza‘s motion, concluding that Weber‘s questions to Mendoza after the traffic stop was concluded were neither related to the traffic stop nor justified by a reasonable suspicion of additional criminal activity. Since the gun was not discovered until the officers had already violated
The appellate court rejected the trial court‘s reliance on Gonzalez. However, the court nonetheless affirmed the trial court‘s grant of Mendoza‘s motion to suppress. The court reasoned that Gonzalez only applies to traffic stops that are still ongoing. Once Weber returned Mendoza‘s driver‘s license and insurance card to him, the traffic stop concluded and Mendoza was free to leave. Thus, the proper inquiry is whether Weber‘s questioning amounted to a second seizure. Questioning constitutes a seizure if, in light of the circumstances, a reasonable person would not have felt free to leave. If there is a seizure, the fourth amendment is violated if there is no constitutional justification for it. The appellate court concluded that Mendoza was seized, noting the presence of more than one officer, that Mendoza was not told he was free to leave, that the officers used a “flanking maneuver” in which one officer stood on each side of the car, and that Wiencek shined a flashlight into the car. The court further found that the officers lacked either probable cause or a reasonable articulable suspicion that Mendoza had committed or was about to commit a crime. The court noted that Wiencek did not see the gun until after Mendoza was seized. Thus, this fact could not support the seizure of Mendoza once the traffic stop was concluded. Mendoza, 364 Ill. App. 3d 564, 581 (2006). We allowed the State‘s petition for leave to appeal (
ANALYSIS
Standard of Review
This court recently set forth the applicable principles in People v. Luedemann, 222 Ill. 2d 530 (2006):
“In reviewing a trial court‘s ruling on a motion to suppress evidence, we apply the two-part standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Under this standard, a trial court‘s findings of historical fact should be reviewed only for clear error, and a reviewing court must give due weight to any inferences drawn from those facts by the fact finder. Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663. In other words, we give great deference to the trial court‘s factual findings, and we will reverse those findings only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding what relief should be granted. People v. Pitman, 211 Ill. 2d 502, 512 (2004). Accordingly, we review de novo the trial court‘s ultimate legal ruling as to whether suppression is warranted. Ornelas, 517 U.S. at 699, 134 L. Ed. 2d at 920, 116 S. Ct. at 1663; Pitman, 211 Ill. 2d at 512; Sorenson, 196 Ill. 2d at 431.” Luedemann, 222 Ill. 2d at 542-43.
People v. Cosby, No. 100681
Initially, we note that Cosby failed to file a posttrial motion raising the issue of the trial court‘s denial of his motion to suppress evidence. Instead, his trial counsel filed only a motion to reconsider sentence. The State argues that Cosby has therefore forfeited any argument that the trial court erred in denying his motion to suppress. It also argues that the appellate court should not have addressed Cosby‘s argument.
To preserve an alleged error for review, a defendant must raise a timely objection at trial and raise the error in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). This long-standing rule is consistent with
“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”
The appellate court did not engage in plain-error review. Instead, the court reviewed Cosby‘s forfeited argument “[b]ased on the constitutional nature and underlying implication of the alleged error.”
This court conducted an extensive review of the plain-error rule in People v. Herron, 215 Ill. 2d 167 (2005), where we stated:
“The plain-error doctrine, as it has developed in Illinois, allows a reviewing court to reach a forfeited error affecting substantial rights in two circumstances. First, where the evidence in a case is so closely balanced that the jury‘s guilty verdict may have resulted from the error and not the evidence, a reviewing court may consider a forfeited error in order to preclude an argument that an innocent person was wrongly convicted. [Citation.] Second, where the error is so serious that the defendant was denied a substantial right, and thus a fair trial, a reviewing court may consider a forfeited error in order to preserve the integrity of the judicial process. [Citations.] This so-called disjunctive test does not offer two divergent interpretations of plain error, but instead two different ways to ensure the same thing—namely, a fair trial.” Herron, 215 Ill. 2d at 178-79.
The appellate court emphasized the constitutional nature of the alleged error in deciding to review Cosby‘s argument despite his forfeiture. However, the mere fact that an alleged error affects a constitutional right does
However, we note that the first step in plain-error review is to determine whether error occurred. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (“the first step is to determine whether error occurred in the giving of the instruction“). Absent reversible error, there can be no plain error. Herron, 215 Ill. 2d at 187; People v. Williams, 193 Ill. 2d 306, 349 (2000). Accordingly, we first determine whether any error occurred in Cosby‘s case.
The
Initially, we must determine the proper framework for our analysis. The United States Supreme Court has characterized the detention by police of individuals during a traffic stop as a “seizure” of “persons” within the meaning of the fourth amendment. Berkemer v. McCarty, 468 U.S. 420, 436-37, 82 L. Ed. 2d 317, 332-33, 104 S. Ct. 3138, 3148 (1984), citing Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396 (1979). A person is seized when, by means of physical force or a show of authority, the person‘s freedom of movement is restrained. United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). The Supreme Court further elaborated on that point:
“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled.” Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.
This court adopted the Mendenhall factors in People v. Murray, 137 Ill. 2d 382, 390 (1990).
In Berkemer, a case involving the application of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), to traffic stops, the Supreme Court observed that the “usual traffic stop” is more analogous to a so-called Terry stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to a formal arrest. Berkemer, 468 U.S. at 439, 82 L. Ed. 2d at 334, 104 S. Ct. at 3150. However, the Court cautioned in a footnote that “[n]o more is implied by this analogy than that most traffic stops resemble, in duration and atmosphere, the kind of brief detention authorized in Terry. We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” Berkemer, 468 U.S. at 439 n.29, 82 L. Ed. 2d at 334 n.29, 104 S. Ct. at 3150 n.29.
Nonetheless, this court and many other courts have analyzed traffic stops under Terry principles, regardless of whether the initial stop was supported by probable cause or reasonable suspicion. See, e.g., People v. Gonzalez, 204 Ill. 2d 220 (2003) (and cases cited therein); People v. Bunch, 207 Ill. 2d 7 (2003).
The State argues that this case is not controlled by Gonzalez. Alternatively, the State also argues that if this court finds that a Gonzalez analysis is required, we should reconsider Gonzalez and overrule it as inconsistent with fourth amendment jurisprudence. The State also contends that Gonzalez has been implicitly overruled by
We have very recently held in People v. Harris, 228 Ill. 2d 222, 240 (2008), that our decision in Gonzalez has been “unequivocally overruled” by the United States Supreme Court‘s decision in Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005). As we noted in Harris, Muehler makes clear that the Court, in Caballes, rejected the reasoning that led to this court‘s adoption of the ” ‘fundamental alteration of the nature of the stop’ ” portion of the ” ‘scope’ ” prong of Gonzalez and that all that remains of the scope prong is the “duration” portion of that analysis. Harris, 228 Ill. 2d at 242. Thus we overruled Gonzalez to the extent it holds that the reasonableness of a traffic stop must be judged by whether the officer‘s conduct altered the fundamental nature of the stop. Harris, 228 Ill. 2d at 244.
The appellate court in Cosby‘s case found that the traffic stop was unreasonably prolonged. While Cosby argues before this court that there was no break between the conclusion of the traffic stop and the officer‘s request for consent to search, we conclude that the record does not support such an argument. The requests for consent to search in both of the instant cases followed the officers’ returning of the defendants’ paperwork. At that point, the traffic stops came to an end. The relevant question is whether the officers’ actions after the initial traffic stops had concluded constituted a second seizure of either defendant.
Thus, the question before us in Cosby‘s case is whether Kaus’ request to search Cosby‘s car after the traffic stop had ended constituted a new seizure for fourth amendment purposes. We analyze this question under the principles set forth in Brownlee and Mendenhall.
The trial court granted the defendant‘s motion to quash her arrest and suppress evidence; the appellate court reversed and remanded. Applying Terry principles to the officers’ actions following the conclusion of the traffic stop, this court concluded that the officers effected a seizure of the car‘s occupants by flanking the car while saying nothing for a period of two minutes. Citing Mendenhall, we noted that a person is seized when, in view of all the facts and circumstances, the person would not feel free to leave. Brownlee, 186 Ill. 2d at 517. Because the officers had no probable cause or reasonable suspicion to detain the occupants, this show of authority constituted an illegal seizure in violation of the fourth amendment. Under the circumstances, this court found that a reasonable person would have concluded that he or she was not free to leave. Brownlee, 186 Ill. 2d at 520.
We do not find the presence of any of the Mendenhall
There is no indication in the record that either of the officers touched Cosby‘s person, that they displayed their guns, or that Kaus used language or a tone of voice indicating to Cosby that he had no choice but to consent to the search of his car. Cosby emphasizes that Kaus did not tell him that he was free to leave prior to requesting consent to search. However, while this is a factor to consider, the Supreme Court has held that such advice is not required. See Ohio v. Robinette, 519 U.S. 33, 35, 136 L. Ed. 2d 347, 352, 117 S. Ct. 417, 419 (1996).
Cosby also argues that he did not feel free to leave because Kaus treated the request to search as if it were part of the traffic stop. Cosby maintains that the officer asked for consent to search “in the same breath” as he explained the warning and returned Cosby‘s paperwork to him. According to Cosby, this made it less likely that he would feel free to leave. However, the appellate court‘s recitation of the stipulated police report that formed the basis of the suppression hearing does not support this argument. In addition, at Cosby‘s trial, Kaus simply testified that he “explained the nature of the written warn-
Cosby further argues that all of the circumstances of the traffic stop, taken together, strongly suggest that he was not free to leave at the time Kaus requested consent to search. Cosby highlights the following: (1) the presence of two officers; (2) the stop took place in the early morning hours in a deserted and poorly lit locale; and (3) the officers’ “double teaming” of Cosby at his car at the time of the request. Cosby asserts that the two officers were standing on either side of his car at the time Kaus requested to search the car. However, the record contains no suggestion that the officers surrounded the car, as Cosby claims. Thus, Cosby‘s citation of this court‘s decision in People v. Gherna, 203 Ill. 2d 165 (2003), is unavailing. There, two police officers on bicycles positioned themselves on either side of the defendant‘s truck, questioned the defendant and her daughter about their identities, and eventually asked the defendant to exit the vehicle for further questioning. This court held that, under the totality of the circumstances, these actions constituted a show of authority to which a reasonable person would feel compelled to submit. We noted that the positioning of the officers and their bicycles prevented the defendant from either exiting her vehicle or driving away. Gherna, 203 Ill. 2d at 180.
In his partial concurrence and partial dissent, Justice Freeman accuses the majority of relying exclusively on the factors set forth in the Mendenhall decision in determining that Cosby was not seized when he was asked for consent to search his car. The dissent quotes our decision in Luedemann, where we said that the Mendenhall factors ” ‘are not exhaustive and that a seizure
The additional factors, however, only apply to situations where police approach a parked vehicle, which was the case in Luedemann. The fact that Cosby‘s car was parked on the side of the road after Kaus effected a traffic stop does not make the additional factors applicable. However, even were those factors to be applied, it is clear that only one of them—flashing lights—is present in Cosby‘s case. The officers here did not box Cosby‘s car in; both officers’ cars were located behind Cosby‘s car. His car was not approached on all sides and there were two officers, not many. There is no evidence that either officer pointed a gun at Cosby and no evidence that Cosby was ordered to place his hands on the steering wheel.
The dissent complains that, by focusing on the Mendenhall factors and by not considering the additional factors set forth in Luedemann, the majority leaves the impression that the Mendenhall factors are the exhaustive factors for determining whether a person is seized within the meaning of the fourth amendment. The dissent is concerned that our reliance upon the Mendenhall
“Indeed, Mendenhall itself used an analysis based on the absence of Mendenhall factors. The lead opinion listed the four factors, noted their absence, and then concluded that no seizure had occurred. [Citation.] From the very minute the Mendenhall factors were created, courts have used their absence to determine that seizures had not occurred.
Even in the absence of cases such as Mendenhall, Murray, and Smith, it would seem self-evident that the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive. If those factors are absent, that means that only one or two officers approached the defendant, they displayed no weapons, they did not touch the defendant, and they did not use any language or tone of voice indicating that compliance with their requests was compelled. Obviously, a seizure is much less likely to be found when officers approach a person in such an inoffensive manner.” (Emphasis in original.) Luedemann, 222 Ill. 2d at 554.
Despite the absence of any of the Mendenhall factors in Cosby‘s case, the dissent expresses the belief that we
“The appellate court believed that, because Mendenhall stated that courts should look to the totality of the circumstances in determining whether a seizure had occurred, the court must conduct a ‘practical, realistic’ inquiry to determine if a reasonable person would have felt free to leave and that the court should not focus on rigid, technical rules such as the Mendenhall factors. [Citation.] The problem with this view is that, immediately after Mendenhall said that a person is seized if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave’ [citation], it elaborated on how courts are to make that determination. The lead opinion listed several factors that are generally indicative of a seizure, said that in the absence of some such evidence otherwise inoffensive contact between a member of the public and the police is not a seizure, and then concluded that no seizure had occurred because those factors were not present. [Citation.] This court expressly adopted those factors in Murray. The ‘in view of all the circumstances’ language must be read in concert with, not in opposition to, the factors. [Citation.] The factors illustrate what type of police conduct would give a reasonable person an objective reason to believe that he or she was not free to leave or was not free to decline an officer‘s requests.” Luedemann, 222 Ill. 2d at 554-55.
The reality in Cosby‘s case is that none of the Mendenhall factors are present. Therefore, the dissent‘s insistence that Cosby was seized is not supported by the record.
The dissent faults the majority for not citing this court‘s decision in Bunch, which the dissent views as similar to Cosby‘s situation. However, in Bunch, the defendant was removed from the car and directed to stand at the rear of the car alongside the handcuffed
The dissent also cites this court‘s decision in Brownlee, which it contends supports its conclusion. However, Brownlee is no more applicable than Bunch. In Brownlee, after the driver had been handed back his paperwork by one of the two officers and had been told that no ticket would be issued, both officers, who were on opposite sides of the vehicle, stood at their stations, saying nothing. After about two minutes had elapsed, the officer standing next to the driver‘s door asked for permission to search the vehicle. After asking whether he had a choice, the driver consented. This court held that the officers’ actions constituted a show of authority and that a reasonable person in the driver‘s position would not have felt free to leave. Thus, the driver and his passengers were subjected to a seizure. Brownlee, 186 Ill. 2d at 520-21.
Here, the record shows only that Officer Kaus approached Cosby‘s vehicle, returned his paperwork and asked for consent to search. There is no indication in the record that Kaus waited for any particular period of time before asking for consent. Thus, Brownlee is not analogous for two reasons—the record does not support any inference that both officers flanked Cosby‘s vehicle and there was no show of authority like that in Brownlee, where both officers flanked the vehicle and waited for two minutes before asking for consent to search.
Accordingly, applying the principles of Brownlee and
People v. Mendoza, No. 102584
Initially, we note that Mendoza has not filed an appellee‘s brief in this court. Nonetheless, we will decide the merits of this appeal under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (where the record is simple and the claimed errors are such that the reviewing court can decide them without the assistance of an appellee‘s brief, the court should address the merits of the appeal).
The trial court here applied the Gonzalez analysis to the facts surrounding the traffic stop of Mendoza‘s car and granted Mendoza‘s motion to suppress. While the appellate court agreed with the result reached by the trial court, the appellate court disagreed as to the application of Gonzalez to the facts of the case. The appellate court concluded that, by its very terms, Gonzalez applies only to police questioning during a traffic stop. The court noted that Gonzalez involved police questioning of a passenger during the traffic stop, whereas in the present case, the traffic stop had concluded prior to Weber‘s asking Mendoza for permission to search his car. Thus, according to the appellate court, the proper inquiry is whether Weber‘s questions amounted to a second seizure. The court opined that the proper analysis to apply to that inquiry is the one set forth by this court in Brownlee. The court then concluded that Mendoza was seized and the evidence recovered from his car must be suppressed. Mendoza, 364 Ill. App. 3d at 574.
It is clear that the traffic stop of Mendoza‘s car had
The State argues that Mendoza was not seized when Weber asked him if he had anything illegal in his car and requested consent to search. According to the State, the traffic stop ended when Weber returned Mendoza‘s driver‘s license and insurance card to him and gave him a verbal warning. At that point, Mendoza was no longer seized and he was free to leave. The State notes Mendoza‘s refusal to consent to a search of his car in support of its argument that Mendoza was not restrained by Weber‘s questions. The State further notes the absence of any of the Mendenhall factors as support for its argument.
There is no question that the initial stop of Mendoza‘s vehicle was supported by probable cause. The officers observed that Mendoza‘s car had a tinted rear license plate cover and a bandana hanging from the rearview mirror, which the officers believed obstructed Mendoza‘s view. As noted by the appellate court, these are violations of the traffic laws. Once Weber returned Mendoza‘s driver‘s license and insurance card to him, the purpose of the traffic stop was concluded. At that point, Weber asked Mendoza if there was anything illegal in his car, to which Mendoza replied that there was not. Weber then requested consent to search Mendoza‘s car. Mendoza refused. Weber then advised Mendoza that he was free to leave.
The appellate court, in finding that Mendoza was seized, focused on the following factors: (1) it was late at night; (2) the officers used a flanking maneuver in approaching Mendoza‘s car the second time; (3) the officers were dressed in dark, special operations uniforms with
As we have noted, the Supreme Court set forth in Mendenhall certain factors the presence of which would tend to indicate that a seizure had occurred. None of these factors are present in Mendoza‘s case. Again, these factors are: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer‘s request might be compelled. Mendenhall, 446 U.S. at 554.
Here, there were only two officers present, not several. The appellate court noted that the officers’ guns were visible. However, it is well known that police officers carry guns. The mere fact that they do so does not mean that they have thereby displayed the guns in the manner contemplated by Mendenhall. In any event, we note that Wiencek testified he did unholster his gun when he thought he saw the butt of a gun on the floorboard of Mendoza‘s car. However, he testified that he did not display the gun to Mendoza. Neither officer testified to any physical touching of Mendoza‘s person. Finally, there is no suggestion that either officer spoke to Mendoza in such a manner as to convey to him the need for compliance with Weber‘s request to search the car. The absence of this last factor is buttressed by the fact that Mendoza refused Weber‘s request to search, indicating that Mendoza did not feel the need to comply with that request. The absence of all the Mendenhall factors strongly suggests that Mendoza was not seized for fourth amendment purposes.
We reject the appellate court‘s conclusion that Mendoza was seized by the officers’ words and actions following the return of his driver‘s license and insurance card. Accordingly, the subsequent discovery of the gun, the second stopping of Mendoza‘s car, and the officers’ search of the car did not violate Mendoza‘s
CONCLUSION
For the reasons stated, in the matter of People v. Cosby, No. 100681, we reverse the judgment of the appellate court and affirm the judgment of the circuit court. In the matter of People v. Mendoza, No. 102584, we reverse the judgment of the appellate court, vacate the order of the circuit court, and remand the cause to the circuit court for further proceedings.
No. 100681—Appellate court judgment reversed; circuit court judgment affirmed.
No. 102584—Appellate court judgment reversed; circuit court order vacated; cause remanded.
In these consolidated cases, defendants were initially stopped by law enforcement officers for minor traffic law infractions. At certain points during their encounters with the officers, however, defendants were asked to consent to having their vehicles searched for contraband, and, in the case of defendant Cosby, to additionally agree to a search of his person. In both cases, the majority holds that the defendants were not seized by law enforcement officers at the time they were requested to consent to a search and, therefore, the provisions of the
I. BACKGROUND
I begin my separate opinion with a short recitation of key background facts gleaned from the record in People v. Cosby, No. 100681. I am compelled to do so because
Cosby filed a motion to suppress evidence and, at the suppression hearing, both the prosecutor and defense counsel stipulated to the admission of the police report written by Plainfield police officer Steven Kaus. Although counsel at the hearing described this report as being two pages in length, the majority correctly observes that it is not contained in the record on appeal. However, the transcript of proceedings at the suppression hearing sheds light on the content of this report through the arguments made by both parties on the motion. Defense counsel noted that the report indicated that Officer Kaus stopped defendant for having a burned-out rear registration light. Defendant produced a speeding ticket in lieu of a license, as well as an insurance card. Kaus returned to his squad car, found that defendant‘s license and insurance were valid, confirmed there were no outstanding warrants for defendant‘s arrest, and radioed for a backup unit to come to the scene. Defense counsel stated that “[i]n his report [Kaus] indicates that he did that [called for backup] for a possible consent search.” When the second officer arrived at the scene of the stop, Kaus returned to defendant his ticket and insurance card and gave defendant a written warning citation. Defense counsel noted that “now [defendant] has two police vehicles there.” Kaus then asked for and received consent to search defendant‘s car and discovered what he believed to be drug paraphernalia.
The prosecutor did not quarrel with defense counsel‘s recitation of the facts as set forth in the police report. The prosecutor did further stipulate, however, that “the report will indicate to the court the officer asked for consent and got the consent almost immediately as he is handing the citation to the defendant.” The trial court subsequently denied defendant‘s motion to suppress; no
Defendant‘s case proceeded to trial, where Officer Kaus provided testimony that offered additional details about his encounter with defendant. Kaus testified that he was on patrol around 1:30 a.m. and was alone in a marked squad car when he observed defendant driving with a burned-out rear registration light. He stopped defendant on the shoulder of a two-lane road, which had little or no traffic, as well as poor lighting conditions with no overhead lights. Kaus stated that during the entire time of the stop, his squad car not only had its overhead flashing blue and red lights activated, but he also had his spotlight turned on and directed at defendant‘s car. He approached the vehicle and asked defendant for his driver‘s license and proof of insurance. Defendant complied. Kaus returned to his squad car and radioed for a backup officer to come to the scene because Kaus thought there would be a possible consent search. It was Kaus’ custom to stay in his vehicle until the backup officer arrived. It took approximately two minutes for him to check defendant‘s identification and insurance and to call for backup, and he waited approximately an extra five minutes for his backup to arrive. The second officer—Officer Klima—pulled his squad car behind Kaus’ car. It was only after Klima arrived at the scene that Kaus then exited his vehicle and reapproached defendant‘s car. Kaus handed defendant‘s documents back to him and asked defendant for consent to search his vehicle. Defendant agreed, and Kaus directed him to
Kaus testified that he then proceeded to conduct a search of defendant‘s vehicle. According to Kaus, defendant remained near the rear passenger side of the car in the company of Officer Klima while Kaus searched the vehicle. Kaus found what he believed to be a crack pipe in the car‘s middle console. Defendant was placed under arrest for possession of drug paraphernalia and transported to the police station. There, Cosby again emptied his pockets—including the cigarettes—and placed them in a tray. At the time Cosby was to post bond and leave the station, Kaus completed an evidence report of Cosby‘s personal items and found four rocks of crack cocaine in the cigarette pack. Defendant was then charged with unlawful possession of a controlled substance, an offense of which he was subsequently found guilty by a jury.
The appellate court, in an order unpublished under our Rule 23, reversed the judgment of the trial court and vacated defendant‘s conviction. The court held, inter alia, that pursuant to this court‘s decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), Kaus’ questioning of defendant with respect to the consent searches unreasonably prolonged the duration of the stop and resulted in defendant‘s being illegally detained at the time he provided consent to the search. In turn, the court held that the consent, the resulting search and the subsequent arrest were tainted, and the fruits should have been suppressed.
II. ANALYSIS
The facts presented in these consolidated cases give
A. Principles of Analysis
It is well settled that in reviewing a trial court‘s ruling on a motion to suppress evidence, we apply the two-part standard of review set forth by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Luedemann, 222 Ill. 2d 530, 542 (2006). Accordingly, a trial court‘s findings of historical fact should be reviewed only for clear error, and a reviewing court must give due weight to any inferences drawn from those facts by the fact finder. Luedemann, 222 Ill. 2d at 542. In other words, great deference is afforded to the factual findings made by the trial court, and, accordingly, they will be reversed only if they are against the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001). A reviewing court, however, remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding the proper relief to be granted. Luedemann, 222 Ill. 2d at 542. Therefore, the trial court‘s ultimate legal ruling as to whether suppression is warranted is reviewed de novo. Luedemann, 222 Ill. 2d at 542-43.
As stated, in the matter at bar, although the trial court denied Cosby‘s suppression motion, it failed to make any specific factual findings or credibility determinations in support of this legal holding. Instead, the trial
“for [the Ornelas two-part] standard of review to function as it is intended, trial courts must exercise their responsibility to make factual findings when ruling on motions to suppress. Reviewing courts should not be required to surmise what factual findings that the trial court made. Instead, the trial court should make clear any factual findings upon which it is relying. It is only through this synergy between the trial and reviewing courts that appellate courts can develop a uniform body of precedent to guide law enforcement officers in their determination of whether their actions may violate the constitution.” In re G.O., 191 Ill. 2d 37, 50 (2000).
Here, it is apparent that the trial court did not heed our admonishment in G.O. with respect to setting forth the factual findings supporting its decision on defendant‘s motion to suppress. It is therefore unclear upon what factual basis the trial court made the legal determination that defendant‘s suppression motion should be denied. I note that in upholding the trial court‘s judgment, the majority relies upon certain aspects of the factual record—facts not specifically set forth by the trial court in its ruling on the suppression motion—to conclude that Cosby was not seized at the time Officer Kaus asked him to consent to a search. I am in disagreement with this conclusion based upon my view that the record fairly and reasonably leads to the contrary legal conclusion that Cosby was unlawfully seized at the moment Kaus requested that defendant allow a consent search.
It is well settled that a person is seized by the police and entitled to challenge the actions of the officers under the protections of the
As stated, in conducting this inquiry, the United States Supreme Court has reaffirmed that a court must consider ” ‘all of the circumstances surrounding the incident’ ” (Brendlin, 551 U.S. at 255, quoting Mendenhall, 446 U.S. at
It is well settled that a traffic stop entails a seizure within the meaning of the
In the matters at bar, no issue exists concerning the lawfulness of the initial stops of the vehicles. Rather, these appeals concern the constitutional propriety of the conduct of the officers following the initial stops. Where an officer asks a motorist questions about contraband or consent to search the vehicle after a valid detention, the inquiry is whether the consent to search was valid, which, in turn, rests upon whether the consent was voluntary. Ohio v. Robinette, 519 U.S. 33, 40 (1996). ” ‘[V]oluntariness is a question of fact to be determined, from all of the circumstances.’ ” Robinette, 519 U.S. at 40, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973). This inquiry, therefore, dovetails with the question of whether the motorist was seized at the time the officer asked the questions and whether that seizure was reasonable. A consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid search: “statements given during a period of illegal detention are inadmissible, even though voluntarily given, if they are the product of the illegal detention and not the result of an independent act of free will.” Florida v. Royer, 460 U.S. 491, 501 (1983) (plurality op.); see also Bostick, 501 U.S. at 433-34 (if consent was given during the course of an unlawful seizure, the results of the search must be suppressed as tainted fruit).
B. Application to the Cases at Bar
In its opinion, the majority‘s analysis as to both
The majority compounds its analytical errors by rejecting Cosby‘s assertion that his traffic stop violated the scope prong of Terry based upon its unreasonable duration. The majority notes that Cosby maintains that Officer Kaus improperly treated the request to search defendant‘s vehicle as if it were part of the traffic stop, because, in Cosby‘s words, Kaus asked for consent to search “in the same breath” as he explained the warning and returned his paperwork to him, and that this unreasonably prolonged Cosby‘s detention. The majority summarily rejects Cosby‘s assertion, stating that “the record does not support such an argument.” 231 Ill. 2d at 276. I strongly disagree.
The record reflects that defendant Cosby was stopped because he had a burned-out rear registration light. Officer Kaus wrote defendant a warning citation for this minor infraction and had no reasonable suspicion that defendant was involved in any other criminal activity. Nevertheless, Kaus radioed for a backup unit to come to the scene of the stop and waited for Officer Klima to arrive before Kaus returned to defendant‘s vehicle to ask for defendant‘s consent to search his vehicle. Defendant was not only asked for his consent immediately after a second police vehicle arrived at the scene and pulled up behind Kaus’ squad car, which had its flashing emergency lights and spotlight activated throughout the entire encounter,4 but also after the presence of a second officer at the scene was established, and while Kaus was in the
It is well settled that “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500 (plurality op.); Brownlee, 186 Ill. 2d at 519. It is against this
The majority, however, finds that because Kaus returned Cosby‘s paperwork to him, this automatically signaled that the traffic stop “came to an end,” and, therefore, the “relevant” question is whether the actions of the officers after the conclusion of the initial stop constituted a new, second seizure of defendant for purposes of the fourth amendment. 231 Ill. 2d at 276. First, as explained, I disagree with the majority‘s summary finding that the traffic stop had concluded when the request to search defendant‘s vehicle was made. Indeed, I note that the majority contradicts itself on this point within its opinion when, after stating—as noted above—that the traffic stop had come to an end prior to Officer Kaus’ request to defendant to allow a search of his vehicle, it subsequently states that after Kaus returned defendant‘s paperwork, “[t]here is no indication in the record that Kaus waited for any particular period before asking for consent.” 231 Ill. 2d at 283. Second, assuming arguendo that the traffic stop had concluded, the majority still errs by holding that defendant was not subject to a second seizure under the circumstances presented.
As stated, the majority improperly treats the Mendenhall factors as the exhaustive inquiry in determining whether a seizure has occurred. I further note that in discussing these factors, the court unduly narrows their application by interpreting them in an overly technical manner. For example, the majority notes that one factor to consider under Mendenhall is the presence of “several”
It is my view that this court‘s decisions in Bunch and Brownlee are factually analogous to Cosby‘s case, support his contention that his suppression motion should have been granted, and that the majority‘s attempt to distinguish these cases is unpersuasive. For example, in Bunch, this court found that the officer‘s continued questioning of the defendant after the purpose of the traffic stop had been concluded “prolonged defendant‘s detention beyond the completion of the purpose of the stop.” Bunch, 207 Ill. 2d at 17. Since the officer‘s conduct in Bunch occurred after the justification for the traffic stop ended, this court looked to whether the officer‘s questioning of the defendant was related to the traffic stop or supported by a separate, reasonable, articulable suspicion of criminal conduct. Finding none, the court concluded that defendant had been unreasonably seized by the officer.6 This is similar to the facts in the matter
Similarly, in Brownlee, this court held that the defendant was unlawfully seized after the justification for the traffic stop had ended, where the two officers continued to flank both sides of the vehicle after returning the motorist‘s documents and stating that no citations would be issued, paused for a “couple of minutes,” and then requested that the occupants agree to a consent search. We held that under those circumstances, “the officers’ actions constituted a show of authority,” and that a reasonable person “would likely conclude that, if he or she drove away, then the two officers would soon be in hot pursuit.” Brownlee, 186 Ill. 2d at 520. The majority attempts to distinguish Brownlee on the basis that unlike the couple-minute delay occasioned by the officers in that case, here there “is no indication in the record that Kaus waited for any particular period of time before asking for consent” from Cosby. 231 Ill. 2d at 283. As noted, however, this statement contradicts the position taken by the majority earlier in its opinion, wherein it finds that there was a break between the conclusion of the traffic stop and Kaus’ request to Cosby to allow a search, and rejects precisely the same argument it now embraces, writing: “While Cosby argues before this court that there was no break between the conclusion of the traffic stop and the officer‘s request for consent to search, we conclude that the record does not support such an argument.” 231 Ill. 2d at 276. I submit that the majority cannot have it both ways.
Of course, questioning by law enforcement officers does not alone effectuate a seizure. However, if the circumstances surrounding the questioning “are so
I note two final points with respect to defendant Cosby‘s case. As stated earlier, the majority opinion completely omits a number of key background facts with respect to Cosby‘s case in order to reach its desired legal conclusion. The majority opinion omits from its “Background” that Kaus testified that he stopped defendant on a two-lane road with little or no traffic and poor lighting conditions with no overhead lights. Kaus’ testimony indicates that he had his squad car‘s overhead emergency lights and spotlight activated for the duration of the stop. Kaus also testified that it was his custom to remain in his squad car until the backup officer arrived. After the backup officer—Officer Klima—arrived at the scene, he pulled his car behind Kaus’ vehicle. Kaus testified that it was only then that he reapproached defendant, asked him to consent to search his car, and asked defendant to get out of the car and stand at the rear passenger side of the vehicle. Kaus further testified that when defendant stood at the rear passenger side of his car, defendant was in the presence of Officer Klima and was speaking with him.
Based upon Kaus’ testimony, at the time that Kaus reapproached Cosby‘s car, asked for a consent search, and directed Cosby out of his vehicle, it is apparent that Officer Klima was not only present at the scene, but that he was also standing outside of his own police vehicle at the passenger side of defendant‘s car. It is my view that the only fair and reasonable inference which can be drawn from Officer Kaus’ testimony is that both officers had exited their cars and approached defendant‘s vehicle, with one on each side of his car during this period. It is also fair and reasonable to draw an inference from Kaus’
Second, I note that although Cosby was pulled over for a minor traffic violation and issued a warning citation, Officer Kaus freely admitted that he formulated an intent to ask Cosby for a consent search prior to returning his documents to him. I am troubled by the specter of routine traffic stops being regularly transformed into so-called “consensual” contraband searches where there is no reasonable or articulable basis to suspect criminal wrongdoing. The fourth amendment exists to protect citizens against such an unreasonable interference with their liberty. The majority‘s holding with respect to defendant Cosby stands for the proposition that, following the conclusion of a lawful traffic stop, officers may detain a vehicle absent reasonable suspicion of any illegal activity and for any amount of time, so long as they ultimately request and obtain “voluntary consent” to search the car. As I cannot countenance such a rule, I dissent in part from the opinion of the majority.
The unreasonableness of the police conduct in Cosby‘s case is highlighted by the factual differences between
JUSTICES KILBRIDE and BURKE join in this partial concurrence and partial dissent.