*1 5,§ Aсt eff. June as a new enactment.” Pub. 92— 12, 2002, 735 ILCS 12—903. amending 5/9 — CONCLUSION sum, may we that a condominium unit owner hold exemption contained section not assert homestead to a as an affirmative defense 12— 901 of Code entry and condominium association’s action forcible brought nonpay- the unit owner’s detainer because of find Accordingly, we ment of maintenance assessments. judgment properly posses- that the trial court entered judg- therefore reverse the plaintiff. sion favor We judgment and affirm the appellate ment of the the trial court. reversed;
Appellate court judgment court judgment circuit affirmed. (No. 90759. ILLINOIS, THE OF Appel-
THE STATE PEOPLE OF COX, lant, F. Appellee. v. ANNE Opinion December 2002. filed *2 THOMAS, J., joined JJ., by GARMAN, and FITZGERALD dis senting. Ryan, General, E. Attorney
James of and Springfield, (Joel Kakac, Attorney, Kevin State’s D. Ber- Fairfield tocchi, General, Solicitor William L. Browers Lisa and Hoffman, Anne General, Chicago, Assistant Attorneys Goetten, J. Stephen Norbert E. Norris and Patrick D. Daly, of Office of the Attorneys Appellate State’s Anthony Vernon, counsel,
Prosecutor, of Mt. student), Heary, People. law for the Deputy Kirwan, Defender, Daniel M. and Dan W Ap- Defender, Evers, of the of the Assistant Office State pellate appellee. Defender, Vernon, of Mt. opinion
JUSTICE FREEMAN delivered court: suppress
Defendant, Cox, motion to Anne F. filed a during personnel evidence seized law enforcement person following stop. search of her car and her a traffic Wayne County granted The circuit court of the motion. appellate App. The granted Ill. 3d 161. We court affirmed. 318 (177 appeal petition Ill. for leave to State’s 315(a)). follow, 2d R. For the reasons that we affirm judgment appellate court.
BACKGROUND July approximately 18, 1998, a.m., Officer On 2:21 police department Matt McCormick of the Fairfield *3 stopped it did not have a defendant’s vehicle because registration light. stop, rear At Officer the time of Deputy him to called Dave Zola and McCormick asked bring Tango, canine, to the his scene. OfficerMcCormick vehicle, did he did not smell defendant’s nor cannabis request Deputy have Zola’sassistance other reasons to the scene. approximately
Deputy later, Zola minutes arrived writing was the traffic ticket. while Officer McCormick Deputy Tango vehicle, Zola walked around defendant’s presence drugs. Tango officers alerted to step OfficerMcCormick had defendant vehicle. out “possible cannabis seeds searched the vehicle and found Deputy then floorboard. Zola and residue” “pat found search of defendant and conducted down” person. defendant on her The officers arrested cannabis possession grams less than 2.5 of a substance containing cannabis.
Defendant filed motion to suppress evidence. argued Defendant that the officers did not probable sniff, cause to conduct the canine and that stоp for a minor traffic violation unnecessarily and illegally long. The trial court granted motion, stating: case,
“In the instant the officer made a traffic based upon an observed testimony traffic violation. There was no from the arresting officer past record, that Defendant had a had been involved in drug related activities or that either Defendant or the interior of the vehicle smelled of mari- juana any or other controlled substance. The [re] was no outstanding warrant for Defendant’s arrest. The officer did not state that the search general was the result of plan or random pattern of canine searches during traffic stops. short, testimony officer’s revealed no reasonable basis which would justify the Moreover, walk around. if the walk invalid, around was then the officers had no basis for a pat Defendant; down search of she would have been released without arrest on the traffic ticket.” On appeal, the appellate court affirmed the trial court’s suppression order. App. 3d 161. The ap pellate court observed: case,
“In this the officer lacked suspicion reasonable sufficient to call the canine unit. At the motion-to-suppress hearing, Officer point McCormick could to no fact that aroused suspicion. his Terry progeny and its clearly establish that when an officer investigates based on reason able suspicion, he must be able point to articulable facts gave suspicion.” rise to said 318 App. Ill. 3d at 167. This court granted the petition State’s for leave to appeal.
ANALYSIS above, As noted granted circuit court defendant’s motion to suppress evidence recovered during the search of her vehicle and *4 person her following the traffic stop. Generally, a motion suppress to presents evidence mixed
466 weighs court first of law and fact: the trial
questions surrounding facts and determines evidence whether, as conduct, it decides after which complained-of unconstitutional law, constitute an these facts a matter Thomas, 103, (2001); 2d 108 v. 198 Ill. People seizure. (1997). 519, A 524 review Shapiro, v. 177 Ill. 2d People findings to the factual deference ing great court accords Thomas, However, at 108. 198 Ill. 2d the trial court. nova the trial court’s considers de reviewing defendant’s deny or grant determination ultimate 108; People v. Thomas, 198 Ill. 2d at suppress. motion to (2001). Sorenson, 196 Ill. 2d 425, 431 United States Consti to the The fourth amendment to be secure people of the “right guarantees tution effects, against houses, papers, persons, their Const., amend. and seizures.” unreasonable searches person, to all seizures applies provision IV. This brief detention including seizures involve v. Brignoni United States traditional arrest. short of 614, 607, Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d Smithers, 430, Ill. 2d v. 83 People 2574, (1975); (1980). amend the fourth under 433-34 Reasonableness by probable supported a warrant requires generally ment (1997); Flowers, 2d v. cause. Ill. 2d People Long, 88 S. Ohio, 392 U.S. L. Ed. Terry Supreme Court (1968), United States
Ct. 1868 probable the traditional exception a limited recognized officer, a police held that The Court requirement. cause detain a circumstances, may briefly appropriate under reasonably believes if the officer questioning person commit, a committed, is about or the person 906-07, 88 S. Ed. 2d at 20 L. Terry, crime. Smithers, Ill. Flowers, 179 Ill. 2d 262; 1880; Ct. at 2d at 434. Terry must under constituting
The conduct
467
Thomas,
Ill. 2d
at its
198
justified
inception.
have been
whether,
A
considers
based
objectively
at 109.
officer,
action
police
to the
police
the facts available
justify
in
To
detaining
appropriate.
the defendant was
intrusion,
able to
police
point
officer must be
which,
together
and articulable facts
taken
with
specific
therefrom,
reasonably warrant
rational
inferences
Terry,
20-21,
intrusion.
The standard for determining the reasonableness of a
Terry investigatory
codified in
been
our Code of
(725
(West
Criminal Procedure of 1963
ILCS 5/107—14
1998)). Thomas,
109; Brownlee,
103 Ill. 2d 241-45 unreasonable searches and seizures under the Illinois are Constitution is measured the same standards as defining protections used in contained in the fourth Constitution). United amendment to the States officer observes a driver commit a traf When violation, briefly justified detaining fic the officer is Sorenson, Ill. investigate the driver to the violation. 433; Brownlee, may Ill. 2d at The officer 2d 517. license, initial check the perform inquiries, some driver’s Ortiz, speedy People conduct warrant check. (2000); App. Easley, Ill. *6 (1997); Koutsakis, 3d 272 Ill. App. 3d If no further App. suspicion following inquiries, aroused in the officer these the traf Ortiz, stop go App. fic should no further. 3d at 220; 491; Koutsakis, Ill. Ill. Easley, App. warning 3d at 163. The officer should issue a ticket App. citation, and to leave. appropriate, or a as allow driver Koutsakis, 272 Ill. 3d at 164. App. case, nоtes that Of-
Turning present to the the State stopped ficer McCormick defendant’s vehicle because The maintains registration light. did not have a rear State justified initiating that Officer McCormick was dog also maintains that sniff stop. traffic State Zola and proper Deputy of defendant’s vehicle was since Tango, arrived at the scene while Officer McCor- dog, his mick the traffic ticket. writing called
Defendant notes that Officer McCormick at the time that Officer McCor- Deputy Zola to the scene did not stop. mick initiated the traffic Officer McCormick vehicle reason to believe that defendant’s any have defendant, According to contained a controlled substance. Officer McCor- because dog impermissible sniff was not to call Zola to the scene was Deputy mick’s decision suspicion that on a reasonable and articulable based a controlled substance. vehicle contained defendant’s present failed to notes that the State Defendant also reliability. regarding Tango’s training evidence dog alert a trained maintains an Defendant Defendant cause to search vehicle. probable constitutes by Tango provide that an alert could concludes her vehicle. with cause to search probable officers that Of- agree we with the State’s contention While the traffic we properly stop, ficer McCormick initiated dog further contention that the disagree with the State’s note that justified. sniff of defendant’s vehicle was We marijuana in defen- Officer McCormick did not smell any dant’s vehicle. Officer McCormick did not have suspect reason to that defendant’s vehicle contained a sum, controlled substance. In Officer McCormick did not any request Deputy reason to Zola’s assistance at conducting inquiry Rather than an into the scene. violation, issuing circumstances of the traffic citatiоn, warning defendant a ticket or Officer McCor- scope mick broadened the of the traffic to include a drug investigation. maintains, however, dog
The State sniff of justified Deputy defendant’s vehicle was because Zola ar- writing rived at the scene while Officer McCormick was disagree. Deputy traffic ticket. We note that Zola We arrived at the scene after the approximately minutes *7 a stop. impose rigid initial traffic While we will not time limitation on are stop, the duration of traffic we concerned the duration of the traffic in the stop with present case. See United States v. Sharpe, (1985) 605, 615, 2d 84 L. Ed. (“While it clear that brevity ‘the of the invasion of the Fourth important individual’s Amendment interests is an factor in determining minimally whether the seizure is so justifiable suspicion,’ intrusive as to be on reasonable Place, supra, emphasized United States v. we have the need to consider the law enforcement to be purposes stop reasonably served as well as the time needed to effectuate those purposes”). We examined the record and find that it is devoid of circumstances which justify length Rather, would of the detention. record leads us to conclude a routine traffic stop, this was which should have in a correspondingly resulted abbrevi Luna, People App. ated detention. See v. 322 Ill. 3d (2001) (“An may officer not stall at the scene of a traffic until a stop drug-sniffing dog arrives creates probable vehicle”); cause to conduct a search of a People (2000); Smith, 315 Ill. Ruffin, App. (2000); Ill. App. Koutsakis, 3d 772 3d at App. (“An authority officer’s a traffic investigate viola may tion not subterfuge become order to obtain other evidence merely suspicion”). based the officer’s Officer McCormick should have a traffic citation issued warning expeditiously. or ticket to defendant Had he done so, defendant would have left the scene of the traffic stop to thе of the canine prior arrival unit.
Moreover, accept were we to the State’s contention dog-sniff permissible, test was we would be endorsing drug-sniff every test at for a traffic viola- tion. Again, we note that Officer McCormick called Zola to the scene Officer Deputy when McCormick first time, stop. initiated the traffic At that Officer McCor- any Deputy mick did not have reason to call Zola to the testify scene. Officer McCormick did not that he smelled did marijuana the vehicle. Officer McCormick not testify any object that he saw in the vehicle that led him suspect possessed defendant a controlled substance. ap- that defendant testify Officer McCormick did peared questions nervous or that defendant’s answers sum, he posed suspicions. aroused his Officer McCor- which, “specific mick did not have and articulable facts therefrom,” together taken with rational inferences *8 detention of defen- an extended rеasonably warranted He did vehicle, drug-sniff test. ensuing and the dant’s in engaged was even hunch defendant not have Deputy to Zola. Given activity support the call criminal to Officer McCormick circumstances, if we held that these unit, clearly the we would calling canine justified was to the use officers can resort police the view that support every stop. units at traffic of canine of the test defendant’s dog-sniff conclude that We McCormick did not Officer impermissible. vehicle was justifying the call “specific and articulable facts” subsequent dog-sniff Zola for assistance and the Deputy Further, defendant’s deten- test of defendant’s vehicle. the tion, scope purpose light considered we that the overly long. Accordingly, find stop, traffic recovered suppressed the evidence properly circuit by police. the resolution,
Because of
need not consider
our
we
by
alert
did not
argument
Tango
defendant’s
the
the
to search defendant’s
give
police probable cause
(the
(1977)
Ill. 2d
People Campbell,
vehicle. See
v.
investigative technique
dogs
follow-up
use of trained
as a
a permis
corroborate information received is
partially
alerts
procedure,
ensuing
dogs,
and the
sible
gave
police
light
police,
information available to
defendants). Also,
arrest
we have
probable cause to
dog-sniff
in this
in terms
analyzed
issues
case
that defendant was
test of defendant’s vehicle. We note
dog-
time
conducted the
police
in the vehicle at the
from
police
test and that the
cannabis
sniff
recovered
Again,
from
person,
defendant’s
not
the vehicle.
because
cause,
need
consider
of our resolution of this
we
it was
for the
conduct
appropriate
whether
dog-sniff test
defendant
inside
vehicle. See
with
simply
Fondia,
App.
3d 966
We
factor in
may
note that other considerаtions
a search
driver’s
as
to a
person
opposed
search of the driver’s
Di Re,
United States v.
vehicle.
332 U.S.
92 L.
Cf.
(1948) (search
Ed.
CONCLUSION reasons, For the judgment aforementioned the of the appellate court is affirmed.
Appellate court judgment affirmed. THOMAS, dissenting: JUSTICE strongly I disagree the majority’s with conclusion subjected defendant was to an detention. illegal fact, majority’s the length entire discussion of the of the detention is inappropriate. by The issue raised the the State —and issue which we upon granted the State’s PLA —is whether sniff of lawfully canine detained vehicle is a “search” under the Illinois Constitution. The affirms the majority appellate basis, court not on this but majority’s on spontaneous the the realization 15- minute traffic stop unnecessarily illegally long.
Although the is never principle opinion, stated in the majority apparently relying is on that a the rule court affirm by rеcord, review can basis any supported given of the regardless by reasons the trial court. See (1999). Buss, People v. My response 187 Ill. 2d is First, pursued twofold. defendant has never properly theory. did not She raise the issue in her motion to sup press. only The issue in the was that raised motion search her illegal vehicle was because the officer had drugs no to believe that defendant had or weap reason Accordingly, ons. the issue whether defendant was People an See subjected illegal to detention is waived. (1989) (issues Coleman, 129 Ill. 2d not raised in waived). to suppress the motion are time that argu closing was mentioned was defendant’s the issue suppress. motion to the trial court on the ment specifically reach Nevertheless, declined to trial court in either did raise the issue issue, and defendant upon ground appellate or this court as a which ap could sustained. As the trial court’s decision be supreme pellee appellate court, in the court and the any arguments sup defendant was entitled raise they judgment, port if were not of the trial court’s even directly upon Monroe, ruled the court. raise Defendant did an alterna Ill. judgment, argument support the trial court’s but tive illegal-detention did not raise the issue. Whether this meritless is not clear. because issue is waived or is possible However, it did not that defendant raise part argument the second because she is aware of any points rule, Monroe holds that which advanced support ruling have a the trial court’s must sufficient Monroe, basis the trial See factual before court.
2d at 300. my brings point. me to There is no
This second upon majority the factual basis in the record which could illegal conclude defendant an detention. that suffered sup proof Defendant the burden of on motion to alleges illegal press that an search or seizure. attorney
Williams, 1, 164 Ill. 2d Defendant’s testimony showing any not elicit that defendant was did necessary unlawfully longer process than was to detained length question the of a traffic ticket. The about attorney stops was traffic came when defendant’s questioning a different traffic Officer McCormick about stop. suppress the motion to was heard at Defendant’s suppress raising the time another motion to same as attorney The issue in a different same same case. represented defendant and the other defendant. both questioning about the other Officer McCormick When stop, attorney long normally traffic the asked him how it response took him to write ticket. OfficerMcCormick’s average, was, varies; “it 12 minutes, 10 to 15 min- attorney any ques- utes.” The did not ask him further attorney why tions. The process did varied, not ask it the what long part process involved, took, how each interrupted writing or whether the officer was when out of either at issue. In case, tickets defendant’s Officer ap- McCormick testified that the unit сanine arrived proximately stop commenced, 15 minutes after the traffic writing simply while he was Thus, still the ticket. there is no basis in the legally to record that il- conclude defendant was longer necessary process than
detained was only way Indeed, ticket. to reach such a conclusion is majority sponte for the determine sua that Mc- Officer lying. apparently majority Cormick was This is what the has done when it asserts: maintains, however,
“The State
dog
sniff
justified
defendant’s vehicle was
ar
Deputy
because
Zola
rived at
writing
the scene while Officer McCormick was
disagree.”
the traffic
We
ticket.
Rather, the Court
must
case-by-case
and must consider whether
pursued
investigation
diligent
and reasonable
their
Sharpe,
686-87, L.
615-
U.S. at
84 Ed. 2d at
manner.
majority
pointed
Here, the
16,
because
had been
the day
stolen
before. The
officer
told her
he
had
story before,
heard that
her, placed
handcuffed
her in
squad car,
and took her
to the police
there,
station. Once
the police took her mug
shot,
possessions,
inventoried
her
and placed her in a jail
cell for an hour before she was taken
magistrate
before a
Atwater,
released on
bond.
532
at
$310
U.S.
149
558-59,
L. Ed. 2d at
121 S.
at
Ct.
1542. Texas
law
authorizes
for
these,
arrests
minor offenses
such as
although the law
provides
also
for
to be
citations
issued
in lieu of arrests. Atwater
42
city
sued the
under
U.S.C.
§ 1983, alleging that
the police had violated her fourth
right
amendment
to be free from unreasonable
seizures.
Atwater,
532
U.S. at
149 L. Ed. 2d at
at 1542. The
granted summary
district
judgment
city,
and the United States Court
Appeals
reversed,
the Fifth Circuit
holding that an arrest
for a
seat
first-time
belt offense was an unreasonable
seizure
under
the fourth amendment.
The United States Su-
certiorari
preme
granted
and,
Court
decision,
a 5-4
that,
reversed
Fifth Circuit. The
held
Court
“[i]f an officer
probable
cause to believe that
an
very
individual has committed even
minor
criminal of-
presence,
fense
his
he may,
violating
without
Atwater,
Fourth Amendment,
arrest
the offender.”
U.S. at
the new 15-minute legality light dubious of Sharpe, it will create problems more than it will solve.
Curiously, affirming after on the basis that defendant unlawfully minutes, detained for 15 the majority on goes to address the canine-sniff The issue. discussion of this issue is dicta majority because the already determined that the evidence needed be suppressed because of an Generally, unlawful seizure. this court will *** not “engage speculative or analysis render an *** advisory where, case, opinion as in the instant such analysis or is not opinion necessary disposition v. Taylor Works, Best Machine the cause.” Ill. 2d However, because there are serious flaws part in this of the majority opinion, and the majority is dicta, never makes clear that its discussion I will ad dress issue too. majority on opinion the canine-sniff issue is law,
based not on following nonlegal but rationale: we to accept “[W]ere the State’s contention permissible, the dog-sniff test was we would be endorsing a drag-sniff every stop test at for a traffic viola tion.” Ill. 2d 470. This is a statement of policy, not *14 of constitutional law. When the issue is within analyzed framework, the proрer legal proper and constitutional the is result obvious. granted
We leave to case appeal this to determine whether the erred appellate concluding that the Illinois Constitution that the requires police have a reasonable, articulable suspicion activity of criminal conducting before a sniff of a lawfully canine detained The appellate vehicle. court based its decision on the Il- linois Constitution because it that the issue recognized by was foreclosed under the fourth amendment the in United States decision Supreme States Court’s United 110, 121, L. 2d 103 S. 696, 707, Ed. Place, In App. 3d 165. See 318 Ill. 2644-45 Ct. sniff is not held that a canine Place, Court the amendment. meaning of the fourth the a search within Constitution believing that the Illinois Apparently the regard, appellate in this protection greater provides requires that Constitution court held that Illinois of criminal suspicion reasonable articulable have a poliсe Ill. sniff. 318 they conduct canine activity may before 3d at 165. App. it never states whether affirming, majority
In The majority appellate analysis. with the court’s agrees Terry stops general boilerplate language cites some United Illinois and mentions both the States if hold However, it never makes clear its Constitutions. fact, analytical the one ing is based on either or both. contains paragraph majority opinion of this section of law Ill. at 471. no whatsoever. See 202 single in a majority’s para The rationale stated it does and does graph that is remarkable both what say. says holding entirely not is that the is driven What by only insight majority’s result. into the desired The thinking nonlegal that, explanation “[W]ere is the we that was accept dog-sniff the State’s contention test test at permissible, endorsing drug-sniff we would be for a traffic 202 Ill. 2d After every stop violation.” 470. that the stating premise, majority explains police suspicion did not articulable reasonable activity. defendant in criminal engaging was What majority how say does arrived®at paragraph analytical this lone majority this result. concludes “if held Of again explaining, once we paragraph unit, the canine justified calling ficer McCormick officers can clearly support we would the view that every stop.” units at traffic resort the use canine 471. 2d at *15 The majority fails to address crucial threshold question of sniff whether a canine is a search. This ques- must tion be answered if a because canine sniff is not a search, authority then what require police would to have either probable cause or a suspicion reasonable activity conducting criminal before one? Critiquing the majority’s analysis is difficult because there no analysis is critique. majority given Because no reasons decision, for portion its this of the dissent will focus on what I the proper analysis believe be under Also, relevant case law. I will address the defendant’s arguments and explain why the appellate analysis court’s is flawed. I
First, will note is briefly what not at issue case. There is no question that the detention of defen- dant’s vehicle was proper. The officer observed defendant committing a violation, traffic a therefore had lawful Pennsylvania Mimms, basis to detain her. 331, 336, L. Ed.
What
is at issue
during
here
whether
police,
a
course of
lawful traffic stop, may conduct a canine sniff
of the vehicle to detect the
presence
narcotics.
important
question
threshold
whether
canine sniff is a search under the fourth amendment was
Place,
Court United
States
by
answered
(1983).1
2d 110,
77 L. Ed.
“We have affirmed that a
possesses
privacy
inter-
personal
luggage
by
est in the
protected
contents
notably
majority opinion.
1This case is
absent from the
sniff
A ‘canine
[Citation.]
Amendment.
the Fourth
however,
dog,
does not
detection
well-trained narcotics
expose noncontra-
luggage.
It does not
require opening
*16
hidden from
would remain
band
that otherwise
items
does,
rummaging
view,
example, an officer’s
public
as
Thus,
in
luggage.
the manner
of the
through the contents
investigative
through this
information is obtained
which
typical
a
search.
much
intrusive than
technique is
less
or
Moreover,
only
absence
presence
the sniff discloses
the
Thus,
the
that
narcotics,
despite
fact
of
a contraband item.
the
something about
contents
the sniff tells the authorities
This
is limited.
luggage,
of
the information obtained
the
the
that
the owner of
disclosure
ensures
limited
also
to the embarrassment
and
property
subjected
is not
mоre
in less
and
entailed
discriminate
inconvenience
investigative methods.
intrusive
generis.
respects,
sniff
sui
We are
these
the canine
investigative procedure that is so limited
aware of no other
the
both in the manner in which
information
obtained
and
content
the
revealed
the
in the
of
information
Therefore,
particular
procedure.
we conclude that
investigation
agents
to pursue
that the
intended
course
was
exposure
respondent’s luggage,
which
located
here —
place,
in a
to trained
not constitute a
public
canine —did
meaning
of the Fourth Amendment.”
‘search’ within
Place,
120-21,
462 U.S. at
L. Ed.
at
The Place dispositive court found the is- appellate amendment, fourth held that sniff sue under the but court, The under Illinois was search Constitution. however, explain why did not construed our state greater as in this providing protection constitution regard. are court is correct that we free appellate greater state providing
construe our constitution as provisions than federal protection comparable Mitchell, Ill. 2d 217 People constitution. v. 165 (1995). Nevertheless, ignored appellate analysis determining have set forth for when we will we As depart “lockstep” from a construction. we stated, repeatedly must find in language “[w]e of our constitution, or in the debates and the committee reports convention, constitutional something which will indicate the provisions of our constitution are intended to differently be construed than are similar provisions in the Federal Constitution ***.” People v. Tisler, 103 Ill. 2d We extensively analyzed this issue in both Mitchell and Tisler concluded that search seizure provision of our state constitution was not intended to be broader than Mitchell, the fourth amendment. See 165 Ill. 2d 217-22; Tisler, Ill. 2d 241-45.2
Our
recent
from
departure
lockstep
construc
tion of our search and
provision
seizure
Krueger, (1996),
Ill. 2d
in which
held
we
that we
Krull,
would not
Illinois
holding
extend the
(1987),
94 L. Ed. 2d
2The it when cites Tisler explains protection against that “the unreasonable searches and seizures under the Constitution measured Illinois defining same protections standards as are used in contained in the fourth amendment to the United States Constitution.” 202 forgotten principle Ill. 2d at 468. This as soon as is cited. Ill. 2d Krueger, it. construed always as we have 74-75. from depart us to caused
Here,
concerns that
nor has defendant
present,
are not
Krueger
in
lockstep
analysis
why
explained
majority
or the
Mitchell/Tisler
argues
Rather, defendant
to this case.
apply
would
out-of-
following
correct
that
the Fifth District
Place
follow
declined to
the courts
cases which
state
their
under
searches
canine sniffs were
held that
Pellicci, 133 N.H.
State v.
See
constitutions.
state
19, 564
Dunn,
N.Y.2d
v.
(1990); People
sniff held that a canine sniff noted, Place constitution. As is not a search. airport at an luggage detained lawfully holding in the Place Court reaffirmed 109, 122-24, 80 L. Ed. Jacobsen, 466 U.S. United States (1984), and 1652, 1661-62 100-01, Ct. 104 S. investiga- it as broadly providing construed *18 or absence presence that disclose tory methods amendment. the fourth implicate do not of contraband a canine held that Place, already court had Prior to the fourth implicate an did not baggage airport of at sniff a justifiable have cannot people amendment because 484
expectation of in the of privacy smell contraband in a public. People cоntainer to the Campbell, exposed (1977).3 Ill.
Recently, the United States Court has specifically that a of a stated canine sniff vehicle is a not Edmond, a search. In City Indianapolis v. (2000),
148 L. Ed. 2d the Supreme Court held a checkpoint invalid that procedure had its as primary purpose the detection of narcotics. The Supreme Court held that the detentions violated the fourth amend- ment because their primary purpose was to uncover ordinary criminal wrongdoing. City Indi- evidence of anapolis, 347-48, 148 L. Ed. 2d at S. Ct. at Importantly, however, 458. the Court specifically held that use canines to sniff vehicles at the checkpoints did not turn the unlawful seizures into unlawful searches:
“It
is well established that a
highway
vehicle
at a
checkpoint effectuates a seizure
the meaning
within
Fourth
[Citation.]
Amendment.
The fact that officers walk
dog
a narcotics-detection
around the exterior of each car at
the Indianapolis
checkрoints
does
transform the
Place,
seizure
[Citation.]
into a search.
Just as in
an
require entry
exterior sniff of an automobile does not
into
designed
the car
any
and is not
to disclose
information
other than
or
presence
[Citation.]
absence of narcotics.
Place,
Like
dog
dog
sniff
simply
sniff
walks
car
around a
is ‘much less intrusive than a typical
Rather,
[Citations.]
search.’
principally distinguishes
what
checkpoints
previously approved
these
from those we have
primary
City
Indianapolis,
is their
purpose.”
914 F.2d at roadblock were lawfully detained a vehicles sniffs of the exterior of was of case, the sniff In that not searches. highway. on a lawfully public detained a that vehicle of expectation there is lesser noted that The court first bodily home or one’s than in a in a vehicle privacy Martinez-Fuerte, 428 U.S. States v. United integrity. See 3074, 3084 1116, 1130, 96 S. Ct. 2d 543, 561, 49 L. Ed. odor of that, when the explained The court then vehicle, does not society from escapes narcotics airspace in the interest privacy a reasonable recognize Morales-Zamora, 914 incriminating odor. containing $404,905.00 in v. also, United States e.g., 205. See F.2d at (canine 1999) (8th 643, 647 Cir. 182 F.3d Currency, search); not a United speeding stopped of U-Haul sniff 1998) (11th 1245, Cir. Glinton, 154 F.3d States (canine search); not a lawfully sniff of detained vehicle 1993) (5th Seals, 1102, 1106 Cir. 987 F.2d United States (canine search; vehicle not a lawfully sniff of detained drug-related activity thus, suspicion individualized required). rejected courts have
For the reasons that these same lawfully of a detained that a canine sniff argument amendment, the fourth not a search under vehiсle is that the canine reject argument defendant’s court should I, section of our violated article sniff of her vehicle expectation an A search occurs when state constitution. reasonable to consider society prepared that is privacy L. Ed. 2d Jacobsen, 466 U.S. at infringed. justifiable cannot have a person at 1656. A from his emanating in the privacy odors expectation (Morales-Zamora, 914 F.2d highway public car on a odor of contraband 205), the desire to conceal the (Campbell, expectation privacy not a protectable 316). search, not a we a canine sniff is 2d at Because court’s conclusion reject appellate should police need a reasonable suspicion of criminal activity before they may conduct a canine sniff of a lawfully Instead, detained vehicle. the majority affirms the appel- late court decision without giving single defensible legal rationale for its decision. argues
Defendant
the Supreme Court’s recent
decision in Kyllo v.
States,
United
150 L. Ed.
(2001),
S. Ct. 2038
mandates an affirmance in
this case.
I disagree.
In Kyllo, agents of the federal
*20
government
believed that
the defendant was growing
marijuana in his home. Indoor marijuana growth requires
the use of high-intensity
heat
lamps. The agents used a
thermal
imaging device to scan the defendant’s home to
determine
the amount of heat
in
parts
different
house. The device detects infrared radiation emitted from
the house. The agents studied the scan and noted that
the roof over
garage
defendant’s
was noticeably warmer
than the rest of the
agents
house. The
acquired a search
warrant
and discovered a marijuana-growing
operation
involving more than 100 plants. Kyllo,
29-30,
The Supreme Court held that
the use of the thermal
imaging device
awas
search under
the fourth amend-
ment and was thus presumptively unreasonable withоut
a warrant. Kyllo,
40,
487
100, 121 Ct. at
31,
Ed. 2d at
S.
U.S. at
150 L.
(Kyllo, 533
States, 365 U.S.
2041-42,
Silverman v. United
quoting
679,
(1961)),
734, 739,
2d
81 S. Ct.
505, 511, 5 L. Ed.
the fourth amendment
by stating
and concluded
” (Kyllo,
the house’
‘a firm fine at the entrance to
“draws
106,
2046,
40,
2d at
I disagree appellate holding also with the court’s *21 majority’s apparent implied holding) that canine limited investigatory stops sniffs should be considered 889, by Ohio, 1, 20 L. Ed. 2d governed Terry 392 U.S. (1968). briefly Ct. 1868 allows the to Terry police 88 S. detain an individual when the officer “observes unusual reasonably light conduct which leads him to conclude experience activity may of his that criminal be afoot.” 30, 911, 20 2d at Terry, 392 U.S. L. Ed. 88 S. Ct. allowed, Additionally, the a war 1884. officer without rant, person conduct a careful limited of the to search reasonably lead him to believe when his observations weapon. purpose that the be a person might carrying police, safety of the “frisk” is to allow the for their own 488 others, sаfety
and the
to determine if
person
27,
Terry,
909,
armed.
question, because an answer cannot lead to its result. Instead, majority has issued a policy decision with no foundation in the majority law. The bases its opinion solely on its desire not to see canine sniffs allowed every lawful traffic Such an stop. analysis begs ques- tion of whether either the United States or Illinois Constitution forbids canine of lawfully sniffs detained vehicles. Because the United States Court has search, held that a canine sniff is not a and we have construed the search and seizure of our state provision in lockstep counterpart, constitution with its federal I am unable see how either constitution would forbid a canine sniff of a detained lawfully Unfortunately, vehicle. explanation majority is nowhere to be found opinion. join
JUSTICES FITZGERALD GAEMAN dissent.