*1 reasons, or- foregoing For the of the circuit court’s portion 1992, finding mortgage der of that the extension and mod- June ification is a continuation of the agreement “present mortgage,” 7, 1986, (c) such term is used in of the order of paragraph January to the trial reversed, this cause is remanded with directions of child Danny’s obligation court to hold a to determine hearing 20% of his net income as de- support August being as of 1992) (for- (750 (West fined section 505 of the Act ILCS 5/505 505)), support Stat. ch. to state merly рar. Rev. 1992) (750 5/505(5) (West (formerly level dollar amounts ILCS arrear- 505(5))), any ch. and to determine par. Rev. Stat. to enter ages judg- for child consistent with this order and support ment for Virginia. thereon
The remainder of order is affirmed. Affirmed in reversed in and remanded with direc- part; part tions.
CHAPMAN, P.J., LEWIS, J., concur. ILLINOIS, Plaintiff-Appellant, THE PEOPLE THE STATE OF OF HAMILTON, Defendant-Appellee. DAVID Fifth District No. 5 — 92—0684 26, 1993. Opinion filed October J., WELCH, dissenting. *2 Haida, Goetten, Attorney, (Norbert J. State’s Belleville
Robert Norris, Mary Doyle, Attorneys Appellate all Stephen E. and H. of State’s Office, counsel), People. Prosecutor’s for Fowler, Gandy Appellate Daniel M. Kirwan and Janet both of State De- Office, Vernon, appellee. fender’s of Mt. of the court: opinion
JUSTICE LEWIS delivered defendant’s, granting The the circuit court’s order appeals State Hamilton’s, and evidence. quash suppress David motion arrest set forth We affirm for the reasons below. evidence, suppress
At on defendant’s motion to hearing defendant that on he was a in his April testifiеd date, car, being Bryant. own which was driven Neon On that a Bryant officer the car and informed defendant police stopped of their car had matching description reported that a car been identification, Bryant stolen. The officer asked defendant gave and defendant said he the officer identification himself identification, for his car. The officer ran a check on his check came clear. back out of the car and did Bryant get
The officer had defendant and the car for 10 to They a search of them. had been outside on there was an Bryant 15 minutes when the check revealed officer on Defendant stated: outstanding Bryant. warrant “[The he cleaner jar gold looked in seen full then] [the car] was, The officer defendant what my gold tooth.” asked The offi- him cleaner for his tooth. gold defendant told it was cer officers to come to the scene. called other officer in a car while another squad
Defendant was placed he nor Defendant that neither jar. tested the contents of Subsequently, the car. an gave permission Bryant anyone dog, and the officer searched with a with officer arrived hood of defendant’s gun revealed under the under arrest at that time. placed and defendant was cross-examination, defendant admitted that his front wind- On He the plates cracked. further admitted that shield on his car was (the a Renault car here was an belonged on the involved car he Classic), but stated that he was in the Caprice Chevrolet transferred. testified that having plates Defendant process time at the under arrest check revealed placed outstanding warrant. had an was in stated that the cleaner bottle with pill Defendant Defendant on it that stated cleaner.” described label gold cleaner as a white powder. Chris testified he had been a Trooper
Illinois State on duty April for three and that he was on 1992. trooper years, evening, At 6:30 that he heard an ISPERN broadcast 1980’s, during stolen Chevy, there was a blue armed rob- early bery. Chevy proceeding saw defendant’s blue west- thought description the car matched on the erly Highway broadcast, and turned around and followed defendant’s car. Trooper a check on the of defendant’s car plates ran license even a different than plates reported were number those the ISPERN The check of the license came back plates broadcast. *3 Rеnault, to being registered leading Trooper as to a believe Tracy also noted that plates Trooper Tracy been switched. defendant’s car had a shattered windshield. that he to
Trooper Tracy police headquarters going notified car, defendant’s which he did. After defendant’s car was asked defendant and over his stopped, Trooper Tracy Bryant public address to raise their hands where he could see them. speaker he in the car treating рersons as to though they passenger were armed. then came side of Tracy get car and had defendant out of the car. con- Tracy defendant’s and asked defendant to pat-down step ducted a search defendant in front of the car. side of the
Tracy Bryant passenger then had slide over get Bryant. car and out. also conducted a search Tracy pat-down to defend- explained During Bryant, Tracy of the possibility ant and that he had them because Bryant stоpped belonged told that the car being Tracy car stolen. Defendant not disclose of the two men did Tracy’s pat-down him. any weapons. got
After both defendant and out of the no- Bryant Tracy lying ticed a bottle on the front seat. prescription Tracy picked up bottle, the bottle. could see Tracy through and he powder. saw that the contents were a white Tracy stated that label on the container said tooth polish.” Tracy asked defend- container, аnt about and told Tracy defendant the bottle said, contained gold what the label tooth powder. identification,
When asked defendant and Tracy Bryant nei- ther had their ID’s with them told Tracy but both names and dates of went to Tracy squad gave birth. car and the names to to run a check on dispatcher them. Defendant’s check came clear, i.e., back he had a valid driver’s license and had no outstand- ing warrants for his arrest. check Bryant’s came back as record file, which indicated that did not Bryant have a driver’s license. This fact Tracy led to believe that Bryant lying who he was, confronted Bryant Bryant about this. then told name, his true name Bryant’s was checked the sec- ond it was revealed that there was an outstanding warrant Sangamon arrest out of Bryant’s County for offense of criminal sexual assault. The record does not reflect whether Bryant license; however, had a valid driver’s was not Bryant issued a ticket having not a driver’s license. Tracy placed Bryant under arrest at about 6:45 p.m., again because of the warrant. Tracy searched Bryant after the arrest and found two rock-like substances on were, Bryant’s person. When asked what Bryant substances told that the soap rocks were also teeth. Tracy found explanation be suspicious.
After arresting called Bryant, Tracy police headquarters told them he had also custody. Tracy asked a canine unit and someone with a field test kit come to his location. Tracy рlaced stated that he this call at 7:05 p.m. Tracy explained about that he wanted the white in the prescription bottle tested to see if it was wanted the unit to see if there drugs'in were other
Trooper Kimble was the first officer to in response arrive Tracy’s defendant, call for assistance. Tracy place had Kimble who handcuffed, Next, in the car. squad Sergeant back Kimble’s Master Runyon Bramlett arrived at 7:15 or 7:20 evening. did a field test of the Runyon *4 substances, the rock-like negative and the test came back for co- caine. Bramlett wait for the advised canine unit before he Tracy did else. anything at about dog with a arrived that Parker testified
Tracy car, and al- the inside dog placed the At that p.m. 7:40 any- not “alert” interest, dog the did great exhibited car, the exterior of the then walked around dog thing. hood of the car. The area of right grill front on the where alerted behind discovered revolver was and a loaded opened, the car was defendant and check on a criminal Tracy ran battery. the car’s Tracy placed 8 p.m., At felon. found that he was a convicted felon. weapon by use of a arrest for unlawful defendant under he had no court, admitted that the Tracy questioned When arrest warrant car, he had no for the search warrant Further, impounding he was not defendant, and that vehicle, and defendant for a stolen not under arrest defendant was also told Tracy tooth powder.” his “gold not under arrest he rеgistered properly car was the court that defendant’s a traffic citation defendant. did not issue test came back the field he held defendant after reason might be the white thought Bramlett was because All hidden in the car. cocaine might and that there be cutting agent also They tooth story.” of the officers disbelieved as a look-like to be sold going rock-like substances were thought for crack cocaine. Police confirmed Illinois State John Runyon car in of defendant’s he came to the scene testimony that
Tracy’s he field test on ran a Tracy’s April call on response cocaine, and that presence negative finding. test resulted in a brought dog his Parker testified that
Trooper Lynn Tracy’s request. April scene of car on defendant’s but passenger compartment, search the initially dog Parker alerts, the dog that when explained not alert. Parker dog did more rapidly, and he breathing changes breathes pattern his or either sсratches dog and the bites dog “perpendicular,” becomes dog His of an illicit substance. to indicate the presence area heroin, methampheta- cannabis, detect the odor of was trained to mine, nitrates, gun including powder. car, Parker asked the interior of searching
After found, nothing him that what would now. told happen then walked defendant. Parker to release the car to he would have alerted on the outside dog around opened of the cаr was The hood right grill. side of the front *5 660 gun found. Parker conducted his of the car at night.
7:45 that motion, In his arguing police defendant conceded that the had suspicion justify stopping his that searches permissible, pill were bottle was plain However, view. defendant contended that after the field test of the came back at 7:20 p.m., police reason any to detain him and the warrantless subsequent search of his car by illegal. Therefore, unit was since he was illegally test, detained aftеr the of the field completion gun which was found as a result of the illegal search was inadmissible. agreed The court and granted defendant’s motion to suppress evidence of the gun. appeals. The State argues
On the State the court appeal, found defendant’s detention illegal from the time of the initial and stop presents its arguments as to the defendant was not detained. why illegally agree held, We do not that the court so even if that was the but determination, court’s wе the court’s may uphold judgment any ground regardless warranted of upon by whether was relied of regardless reasoning court and whether the court’s was correct. (1985), 290, v. 131 Ill. (People Holloway App. 915.) 3d 475 N.E.2d event, In we our case in accord any analysis will this with the State’s arguments. with the State that the agree stop
We
initial
of defendant’s car
was a permissible investigatory stop
Terry
(1968),
under
v. Ohio
1,
889,
392
L.
Terry,
U.S.
20
Ed. 2d
Similarly, properly Trooper to the Bryant upon stopping was entitled frisk both defendant and robbery car. was that an armed had com- Tracy’s information been mitted, the officer the reasonably which would lead to believe of the car armed. occupants may be contain- regard
With the evidence the bottle prescription substаnce, a the of this was le- ing white seizure evidence powdery gal seat of the as the vial was in view the front plain 120, 1.) 130 N.E.2d (People (1985), App. car. v. Sturlic Ill. 3d 474 the At this in trial court could find from ev- point justifiably defendant, Trooper idence that had cause to Tracy probable and defendant’s car. Bryant, the in is whether the warrant- problem
Where arises this case time less search of car was at the of the search. legal defendant’s 3d pointed People (1991), App. As this court out in v. Smith 939, 566 the of the is an factor brevity stop important N.E.2d in the Terry stop determining whether is unreasonable. hour, Here the detained for least one while the of- defendant was at called Trooper requested ficer his allayed suspicions. Once pow- field test of the he found in the car. the white substance had proba- der tested 662 cause or even a reasonable suspicion
ble believe that defendant suspicion “Mere possessed controlled substance. or is not curiosity enough to Ill. justify (Stewart, a search.” 242 App. 3d at 610 trial 202.) N.E.2d at find that court We cannot was manifestly erroneous it was determined that defendant illegally detained after the field completion of test and search of his car illegal. that, law is well to conduct a settled order warrantless vehicle, of a the circumstances fall within an exception must warrant requirement. (People Kolody (1990), v. 200 Ill. App. 589.) 3d 558 A N.E.2d warrantless search is if an permissible probable officer has cause to believe there contraband in the car. 869; v. Clark Ill. 2d v. People Ko- lody (1990), App. 3d In determining search, probable exists of the cir- totality cumstances known to officer at the time the search must be People Kolody considered. N.E.2d 589.
In the case we judice, sub cannot errone- say manifestly ous to find trial court did not Trooper prob- have cause to able believe that there contraband in car defendant’s time of the search. Tracy initially stopped defend- ant’s vehicle thought because was stolen during armed rob- bery. This would not person information lead a reasonable to believe car contained contraband. the discovery While of a white may give powdery rise to a reasonable belief that there contraband contained that belief was dispelled upon testing nega- the substance and results tests being Thus, tive since Trooper dispelled cocaine. reason any *7 detain to defendant to the time of arrival of the there prior dog, no or probable was cause to suspicion justify detaining defendant a further search. v. Stewart 3d 197.) as to App. Trooper Tracy’s explanations N.E.2d they detained defendant after the field test were hunches why mere not suspicions. Citizens should be handcuffed and detained the police police purpose cars after the have effectuated of the “in- there is vestigatory stop,” probable unless cause or a reasonable Thе suspicion believe that the citizen has committed a crime. trial court’s determinations that defendant was detained illegally the his car order illegal search of was court’s mani- granting defendant’s motion to evidence were not suppress festly erroneous. reasons, of of the the circuit court judgment
For the foregoing is affirmed. County St. Clair
Affirmed.
GOLDENHERSH, J., concurs. WELCH, dissenting:
JUSTICE that, after I conclusion agree majority’s do not with field tested con- that defendant’s vehicle believe probable that, I given totality believe contrary, tained contraband. To cause to be- circumstances, Trooper Tracy probable did have even after lieve that defendant’s vehicle contained contraband test, defendant and negative field further detention search were therefore valid. canine if an officer has
A of a permissible warrantless vehicle in the car. (People there is probable cause believe contraband 589, 593.) Kolody App. when, of the circum considering the totality Probable cause exists search, rea time of the stances to the officer at the known in the present would that contraband was person sonable believe In 134-35, (Kolody, vehicle. 3d at offi case, the known totality the instant circumstances cers at the time of the car a reasonable would person believing that contraband search of Mr.
Just before conducted the Trooper on the front Bryant, noticed the bottle prescription seat. He it picked up and saw thаt contained white The asked the defendant polish.” trooper was labelled tooth soap. tooth was, what and the defendant stated that it was Mr. their Bryant then trooper asked defendant them so the officer identification. Neither had driver’s licenses with record The defendant’s used names to check their records. Al- license. came back clear showed that he had a valid driver’s li- clear, record it did not list driver’s Bryant’s Mr. Mr. cense, lying. trooper Bryant which indicated out troоper found Bryant identity, After Mr. his true revealed as- sexual Sangamon County that he wanted in criminal on the under arrest based Tracy placed sault. Mr. him. search of thorough warrant and conducted more outstanding search, rock-like substances During this found two trooper *8 plastic in in Mr. front wrapped Bryant’s pocket. trooper again gold was told that tooth polish. point, Trooper
At this had two different substances which gold polish, the defendant and Mr. claimed to be tooth one a рowder white and the other a rock-like substance. The claim that gold both these substances were tooth led powder reasonably powder believe that the in the prescription white bot- cocaine, tle was so called testing field kit and the canine Sergeant Sergeant unit. When Master Bramlett arrived with Run- Sergeant field yon, Runyon tested the rock- like substances. Both the the rock-like powder and substances negative tested cocaine. argued, agreed,
The defendant and the below trial court that at this point, the substances tested search should have ended and the detention and further the defendant and his car no Although were unreasonable. there is talismanic time which an un beyond any investigatory stop becomes seizure, brevity stop important reasonable is an factor in However, whether the determining stop is unreasonable. review ing court must also consider whether the acted diligently pursuing 208 Ill. investigation. (1991), Smith 44, 50, 939, 943; 566 N.E.2d United v. Place States 696, 709, 110, 122, U.S. 77 L. Ed. 2d S. Ct. 2645-46.) Furthermorе, inquiries during answers initial an investigatory questions mind, in an dispel stop may go officer’s no fur However, ther may and the individual be detained. if the inquiries arouse further suspicion, stop may prolonged be the scope expanded. (People v. Smith 208 Ill. App. 3d if an officer’s are not Finally, suspicions allayed within a he must either make an arrest or Smith, allow the individual to leave. at App. 3d N.E.2d at 943. bar,
In the the negative dispel case field test results did not suspicions, especially the officers’ light defеndant’s and Mr. Bryant’s story powder, that both substances were tooth packaged rock-like substances were manner as same crack is packaged reasonably cocaine and sold. The officers believed powder might cutting be a substance and the rock-like sub- might stances be off crack passed (See cocaine. Rev. Stat. 56V2, Therefore, or- par. 1404.) Sergeant ch. Master Bramlett Furthermore, dered everyone wait the canine unit. Runyon stated that could bеen some other con- have give for the test kit possible that it is trolled substance and dispel not the officers’ sus- negative. Because the field test did false of the car. for them to continue the search picions, it was proper *9 Further, investigation in pursuing acted diligently the officers half. an hour and a nearly fact that detention lasted despite the to the amount large part in of the was due length The detention exception scene. With the the officers to arrive at the time it took 15 to 20 minutes arrive unit, took the officers of the all canine minutes to arrive. unit 30 to 35 It the canine scene. took to the call assistance. responded immediately Each officer diligence to tactics or lack of improper delaying record reveals of the officers. get part scene cause to con- case, did have probable In the the officers present tested the fact investigation tinue the substance despite earliеr, cause to search probable cocaine. As stated negative for totality of the circumstances known automobile exists when the would a reasonable the officers at the time in the automobile. present in that contraband was person believing 130, 134-35, 558 (People Kolody tested 593.) Even substances present that contraband was person a would believe reasonable different confronted with two the automobile. The officers were gold tooth cleaner. substances, purported of which were to be both vial, other a in a medicine One substance was white testified wrapped plastic. Trooper was rock-like and the manner that crack co- packaged the rock-like substance Bramlett told him that caine is sold and that Master the rock-like cutting powder could have been substance Further, been off as crack cocaine. passed substance could have some could have been Sergеant Runyon In kit tested for cocaine. only other controlled as the test test, addition, kit field was not as accurate as lab test given negative. kit could have Faced with these circum- false stances, justified in person believing would be therefore, and, probable in the car contraband was car. I believe existed for the further search of the defendant’s suppress. court erred in the defendant’s motion to granting below I the order of circuit Accordingly, would have reversed I therefore manifestly court erroneous. suppressing weapon dissent. respectfully