FIRST DIVISION September 30, 2010
No. 1-05-0599
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 03 CR 19807 ) OMAR AL BUREI, ) ) Honorable Defendant-Appellee. ) David P. Sterba, ) Judge Presiding.
JUSTICE HALL delivered the opinion of the court:
Pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d R.
604(a)(1), the Attorney General appealed from the granting of
defendant Omar Al Burei's motion to suppress evidence. As the
defendant did not file a brief, the appeal was taken on the
Attorney General's brief only. On December 5, 2006, this court
affirmed the granting of the defendant's motion to suppress in an
order pursuant to Supreme Court Rule 23 (Official Reports Advance
Sheet No. 15 (July 16, 2008), R. 23, eff. May 30, 2008). People
v. Al Burei, No. 1-05-0559 (2006) (unpublished order under
Supreme Court Rule 23). The Attorney General filed a petition
for leave to appeal.
On November 26, 2008, our supreme court denied leave to
appeal but issued a supervisory order directing this court to vacate and reconsider its judgment in light of People v. Cosby,
231 Ill. 2d 262, 898 N.E.2d 603 (2008). Accordingly, we vacated
our judgment in Al Burei and considered whether Cosby required a
different result. After finding Cosby distinguishable on its
facts from the present case, we affirmed the granting of the
motion to suppress. See People v. Al Burei, 391 Ill. App. 3d 1,
908 N.E.2d 538 (2009) (Al Burei II). The Attorney General filed
a petition for leave to appeal.
On May 26, 2010, our supreme court denied the petition for
leave to appeal but issued a supervisory order directing this
court to vacate and reconsider its judgment in light of People v.
Oliver, 236 Ill. 2d 448, 925 N.E.2d 1107 (2010). In accordance
with the supervisory order, we vacate our judgment in Al Bueri II
and consider whether the decision in Oliver requires a different
result. We conclude it does not and affirm the granting of the
motion to suppress. The pertinent facts are set forth below.
The defendant was indicted and charged with the following
offenses: transportation of unstamped cigarettes with intent to
evade the cigarette tax (35 ILCS 130/9c (West 2002));
transportation of unstamped cigarettes without a permit (35 ILCS
130/9c (West 2002)); and possession of unstamped cigarettes with
intent to sell (35 ILCS 130/24(a) (West 2002)). The defendant
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filed a motion to suppress evidence. At the hearing on the
motion, the following evidence was presented.
BACKGROUND
I. The Defendant
Shortly after 1 p.m. on July 11, 2003, the defendant was a
passenger in a minivan driven by his friend, Majdi Ghaban. The
car was owned by the defendant. Mr. Ghaban was driving because
the defendant's driver's license was suspended. The two men were
on their way to get something to eat when the minivan was stopped
by a police officer. The officer spoke to Mr. Ghaban, advised
him that he had almost hit a bus and ordered him out of the
minivan. After speaking with Mr. Ghaban for about three minutes,
the officer approached the defendant and asked for his driver's
license. After the defendant tendered his license to the
officer, the officer ordered the defendant to exit the car. The
officer then began to search the interior of the car. He opened
the glove compartment and removed whatever was inside. The
officer then informed the defendant that he was under arrest.
The officer also searched the back of the minivan but did not
remove anything. The officer did not show the defendant any
warrants for his arrest, any search warrants and he did not ask
3 No. 1-05-0599
the defendant's permission to search the minivan. The defendant
was then taken to the police station.
On cross-examination, the defendant acknowledged that there
were boxes of cigarettes in the back of the minivan. He further
acknowledged that he told the officer that the cigarettes were
his. Questioned as to whether the officer asked if he could take
a look in the minivan, the defendant testified, "He stood by the
window on the right side."
II. Officer Glenn Tienstra
Shortly after 1 p.m. on July 11, 2003, while on routine
patrol, Officer Tienstra observed a white minivan make a U-turn
in front of a Pace bus. The minivan also had a cracked
windshield. Officer Tienstra conducted a traffic stop of the
minivan. He asked the driver, Mr. Ghaban, for his license. Mr.
Ghaban displayed nervous behavior and kept looking at his
passenger. Concerned for his safety, Officer Tienstra asked Mr.
Ghaban to exit the minivan and step to the back of the vehicle.
When questioned why he appeared nervous, Mr. Ghaban stated that
this was the first time he had ever been stopped by the police.
When Officer Tienstra asked if there was anything illegal inside
the minivan, Mr. Ghaban responded that he did not know and that
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the minivan belonged to his passenger, the defendant.
Within five minutes of the stop, Officer Beckwith arrived on
the scene. He waited with Mr. Ghaban while Officer Tienstra
spoke with the defendant. Again for safety concerns, Officer
Tienstra had the defendant step out of the minivan and identify
himself. The defendant did not produce a driver's license but
did identify himself to the officer. Officer Tienstra asked the
defendant why Mr. Ghaban was so nervous and why the defendant was
not driving. The defendant told him that he was not driving
because he was busy on his cell phone. When Officer Tienstra
asked if there was anything illegal in the minivan, the defendant
stated not that he knew of and gave Officer Tienstra permission
to search the minivan. Officer Tienstra instructed the defendant
to go to the back of the minivan with Officer Beckwith, while he
looked inside the vehicle. Officer Tienstra searched the entire
minivan and located five cardboard boxes filled with cartons of
cigarettes. Questioned about the cigarettes, the defendant
stated that he purchases cigarettes in Kentucky and sells them in
Illinois and Indiana. Officer Tienstra opened some of the boxes
and ascertained that the cigarettes in those boxes had Kentucky
stamps but not Illinois stamps.
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On cross-examination, Officer Tienstra stated that he issued
Mr. Ghaban a citation for the cracked windshield and a verbal
warning for the U-turn. He issued the ticket at the police
station.1 Officer Tienstra requested that the defendant exit the
minivan due to safety concerns, even though the traffic stop was
made across the street from the police station and another
officer was then on the scene. The time between the stop and the
defendant exiting the vehicle was approximately five minutes at
the most. The defendant did not appear nervous and was not
committing any crimes. His statements were not inconsistent with
those of Mr. Ghaban. Officer Tienstra denied that he had not
asked the defendant's permission to search the minivan.
Questioned by the court, Officer Tienstra testified that
approximately five minutes elapsed between the time of the stop
and the search of the minivan.
In ruling on the motion to suppress, the court found that
1 Officer Tienstra testified that the driver, Mr. Ghaban,
drove the vehicle across the street to the police station. The
officer did not testify whether he ordered Mr. Ghaban to drive to
the police station or suggested to him that he do so.
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Officer Tienstra was justified in stopping the minivan. The
court further found that Officer Tienstra asked for and received
the defendant's consent to search the minivan. However, the
court further found that the officer's questioning of the
defendant "was completely unrelated to the initial purpose of the
stop." The circuit court granted the motion to suppress. The
Attorney General filed a certificate of impairment and timely
appealed the circuit court's order.
ANALYSIS
The sole issue on appeal is whether the circuit court erred
in granting the motion to suppress evidence.
I. Standard of Review
Where a motion to suppress involves credibility assessments
or factual determinations, a reviewing court will reverse a trial
court's ruling only if it is manifestly erroneous. People v.
Driggers, 222 Ill. 2d 65, 70, 853 N.E.2d 414 (2006). Where, as
here, the appeal concerns the trial court's ultimate ruling on
the defendant's motion to suppress, our review is de novo.
Driggers, 222 Ill. 2d at 70.
II. Discussion
"When a police officer observes a driver commit a traffic
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violation, the officer is justified in briefly detaining the
driver to investigate the violation." People v. Ramsey, 362 Ill.
App. 3d 610, 614, 839 N.E.2d 1093 (2005). "A temporary detention
of an individual during a vehicle stop constitutes a seizure of
his person within the fourth amendment, even if the stop is brief
and for a limited purpose." Ramsey, 362 Ill. App. 3d at 614.
The Supreme Court recently confirmed that in a traffic stop, a
passenger as well as the driver is "seized." See Arizona v.
Johnson, 555 U.S. ___, ___, 172 L. Ed. 2d 694, 703, 129 S. Ct.
781, 787 (2009).
As a general rule, a fourth amendment challenge to the
reasonableness of a traffic stop is analyzed under the principles
set forth in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.
Ct. 1868 (1968). People v. Gonzalez, 204 Ill. 2d 220, 226, 789
N.E.2d 260 (2003), abrogated on other grounds by People v.
Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006)2 (Terry
2 Luedemann held that cases such as Gonzales, stating that
"community caretaking" was a label to describe consensual
encounters, should no longer be followed on those specific
points. Luedemann, 222 Ill. 2d at 548.
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analysis applies even though the vehicle stop was supported by
probable cause). A Terry analysis includes a dual inquiry: (1)
"'whether the officer's action was justified at its inception,'
and (2) 'whether it was reasonably related in scope to the
circumstances which justified the interference in the first
place." Gonzales, 204 Ill. 2d at 228, quoting Terry, 392 U.S. at
19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.
The first inquiry of the Terry analysis is satisfied as
there is no dispute that Officer Tienstra had probable cause to
stop the minivan. In addition to the abrupt traffic maneuver,
Officer Tienstra observed the minivan's windshield was cracked.
See 625 ILCS 5/12-503(e) (West 2002) (Illinois Vehicle Code
requires that the windshield be unobstructed); see also Ramsey,
362 Ill. App. 3d at 613 (cracked windshield gave officer probable
cause to initiate a valid traffic stop).
Under the scope requirement, if the questioning was
unrelated to the initial justification for the stop, the court
must consider whether the questioning impermissibly prolonged the
detention or changed the fundamental nature of the stop.
Gonzalez, 204 Ill. 2d at 235. Recent case law has modified the
court's considerations in determining whether the scope
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requirement was violated.
In Cosby, our supreme court noted that Gonzales had been
overruled to the extent that it holds that the reasonableness of
a traffic stop must be judged not only by its duration but also
by the additional criterion of whether the actions of the officer
altered the fundamental nature of the stop. Cosby, 231 Ill. 2d
at 276, citing People v. Harris, 228 Ill. 2d 222, 244, 886 N.E.2d
947 (2008). In other words, only the duration portion of the
Gonzales analysis remains. Cosby, 231 Ill. 2d at 276.
In Cosby, two cases were consolidated for review. In both
cases, drivers were lawfully stopped for traffic violations.
After the stops were concluded, the police asked permission to
search the vehicles. Mr. Cosby consented to the search, which
led to the discovery of drug paraphernalia in his car. His
motion to suppress was denied, and he was convicted of possession
of drug paraphernalia. On review by the appellate court, the
court relied on Gonzalez and held that the motion to suppress
should have been granted as the police questioning of Mr. Cosby
and the subsequent search unreasonably prolonged his detention
and changed the fundamental nature of the stop. Cosby, 231 Ill.
2d at 267.
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In the second of the consolidated cases, after he was
stopped for a traffic violation, Mr. Mendoza provided his license
and proof of insurance, which proved to be valid. The police
officers then asked for permission to search his car. Mr.
Mendoza refused. While one of the officers observed a gun under
the driver's seat, the other officer, unaware of the gun, allowed
Mr. Mendoza to drive away. The officers pursued the car and
arrested Mr. Mendoza. Mr. Mendoza's motion to suppress was
granted based on Gonzalez. On review by the appellate court, the
court rejected Gonzalez but determined that once his license and
insurance card had been returned to him, the traffic stop ended.
The appellate court concluded that a second seizure had occurred
when the officer questioned Mr. Mendoza, asking permission to
search his car. Because there were two officers flanking his car
and because he was not told he was free to leave, the appellate
court concluded that Mr. Mendoza would not have felt free to
leave. Since the gun was not detected until after he was seized
a second time, there was no basis for the second seizure. Cosby,
231 Ill. 2d at 270.
The supreme court noted that "[t]he requests for consent
to search in both of the instant cases followed the officers'
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returning of the defendants' paperwork. At that point, the
traffic stops came to an end. The relevant question then [was]
whether the officers' actions after the initial traffic stops had
concluded constituted a second seizure of either defendant."
Cosby, 231 Ill. 2d at 276. In Mr. Cosby's case, the supreme
court determined that the request to search his car occurred
after the traffic stop had been concluded and thus did not
constitute a new seizure for fourth amendment purposes. The
court rejected Mr. Cosby's argument that the request to search
was part of the traffic stop. Based on the record, the court
found that the request to search occurred shortly after the
return of the paperwork to Mr. Cosby and not simultaneously as
Mr. Cosby contended. The court then addressed whether Mr. Cosby
had been seized a second time. Applying the factors in United
States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct.
1870 (1980), the court determined that Mr. Cosby was not seized
at the time he consented to the search and, therefore, his
consent to search was voluntary. Cosby, 231 Ill. 2d at 284-85.
Likewise, in the case of Mr. Mendoza, the supreme court
applied the Mendendall factors and concluded that Mr. Mendoza was
not seized by the officers' words and actions following the
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return of his driver's license and insurance card. Cosby, 231
Ill. 2d at 282. There was no evidence to indicate that Mr.
Mendoza felt compelled to comply with the officer's request to
search his car, especially in light of Mr. Mendoza's refusal to
consent to the search. Therefore, "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 fourth amendment
rights." Cosby, 231 Ill. 2d at 288.
In granting the motion to suppress in this case, the trial
court ruled as follows:
"A review of the totality of the circumstances reveals
that after the initial stop of the vehicle the officer
lacked a reasonable articulable suspicion of any other
illegal activity. The initial purpose of the traffic stop
was satisfied, but the officer continued to detain and
question the Defendant in violation of fourth amendment
principals [sic]. Defendant's subsequent consent to search
the vehicle was thus tainted as the product of that unlawful
detention so as to render said consent invalid."
It is the return of the paperwork that signals the end of a
traffic stop. Cosby, 231 Ill. 2d at 276. There is no mention in
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the record that Mr. Ghaban received his license back. The
officer did not issue a ticket at the scene. Rather, Mr. Ghaban
was issued a ticket at the police station.3
We find the facts in the present case distinguish it from
the two consolidated cases in Cosby. In both cases in Cosby, the
court determined that the initial lawful traffic stops had come
to an end prior to the requests to search. The court rejected
the arguments based on the detention prong. See Cosby, 231 Ill.
2d at 284, 286. In the present case, the traffic stop had not
yet been completed prior to the request to search. We do not
reach the question of whether a second seizure took place because
the initial seizure of the defendant had not been concluded at
the time Officer Tienstra made the request to search the minivan.
Unlike Cosby, the pivotal question in this case is whether the
officers' actions violated the duration prong by prolonging the
traffic stop beyond its lawful purpose.
There is no dispute that the stop of the minivan for routine
3 Although Officer Tienstra issued a verbal warning as to the
cracked windshield, the record does not indicate clearly where
that verbal warning was issued.
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traffic violations was lawful. Officer Tienstra asked and
received a driver's license from Mr. Ghaban, the driver. When
the officer questioned Mr. Ghaban as to why he was nervous, the
driver responded with the perfectly plausible answer that it was
the first time he had been stopped by the police. That should
have ended the conversation, and the officer should have
proceeded to issue the appropriate traffic citations. Instead,
upon the arrival of Officer Beckwith, Officer Tienstra
concentrated on questioning the defendant while Officer Beckwith
detained Mr. Ghaban.
There is no evidence that either Officer Tienstra or Officer
Beckworth ever returned Mr. Ghaban's driver's license to him.
Morever, there is no evidence that Officer Beckwith issued the
appropriate traffic citations to Mr. Ghaban while Officer
Tienstra was questioning the defendant. In fact, the traffic
citation was issued at the police station and only after the
search of the minivan and the discovery of the contraband.
Like Cosby, Oliver involved a request to search after the
traffic stop had ended. See Oliver, 236 Ill. 2d at 455 (it was
undisputed that the traffic stop was a constitutionally
permissible seizure, and the parties agreed that the initial
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traffic-stop seizure ended before the police officer sought the
consent to search). The issue in Oliver was whether there was a
second seizure. In the present case there was no issue as to a
second seizure because the traffic stop had not come to an end
and therefore, the defendant was still "seized" when Officer
Tienstra made the request to search.
We conclude that, like Cosby, Oliver is distinguishable on
its facts and does not require a different result in this case.
While the initial seizure of the defendant in this case was
lawful, it became unlawful when it was prolonged beyond the time
reasonably required to complete its purpose, namely, to issue the
appropriate traffic citations. Long after the detention should
have ended, Officer Tienstra continued to question the defendant
during which time he consented to the search. While contrary to
the defendant's assertion, the trial court found that he
consented to the search, and the court further found and, we
agree, that the defendant's consent to search was tainted by the
unlawful detention.
The State argues that Officer Tienstra's questioning of the
defendant and the obtaining of his consent to search was proper
under Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct.
16 No. 1-05-0599
1465 (2005), and Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d
389, 111 S. Ct. 2382 (1991). While "mere police questioning does
not constitute a seizure" (Bostick, 501 U.S. at 434, 115 L. Ed.
2d at 398, 111 S. Ct. at 2386), here, the defendant was already
"seized" as a result of the traffic stop. In Muehler, the court
held that the plaintiff was properly detained as she was on the
premises subject to the search warrant. Questions as to her
immigration status did not prolong her detention and, therefore,
there was no additional seizure within the meaning of the fourth
amendment. Muehler, 544 U.S. at 100-01, 161 L. Ed. 2d at 308-09,
125 S. Ct. at 1471-72. Moreover, in Muehler, the Court chose not
to address Ms. Mena's alternative argument, pertinent to this
case, that her detention extended beyond the time the police
completed the tasks incident to the search, because the court of
appeals had not addressed it. Muehler, 544 U.S. at 102, 161 L.
Ed. 2d at 309, 125 S. Ct. at 1472. Under the facts of the
present case, the officer's actions impermissibly prolonged the
stop rendering the initial lawful seizure unlawful.
The State's reliance on Illinois v. Caballes, 543 U.S. 405,
160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), is likewise misplaced.
In Caballes, the United States Supreme Court held that a dog
17 No. 1-05-0599
sniff of a vehicle in the absence of a reasonable articulable
suspicion of any other illegal activity did not change the
character of the traffic stop that was lawful in its inception
and otherwise conducted in a reasonable manner, unless the dog
sniff itself infringed on the defendant's constitutionally
protected interest in privacy. Caballes, 543 U.S. at 408, 160 L.
Ed. 2d at 847, 125 S. Ct. at 837. The Court pointed out that as
there is no legitimate interest in possessing contraband,
governmental conduct that only reveals the possession of
contraband "'compromises no legitimate privacy interest.'"
Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at
837, quoting United States v. Jacobsen, 466 U.S. 109, 123, 80 L.
Ed. 2d 85, 101, 104 S. Ct. 1652, 1662 (1984).
The Court noted that a dog sniff is "sui generis," because
it "'discloses only the presence or absence of narcotics, a
contraband item.'" Caballes, 543 U.S. at 409, 160 L. Ed. 2d at
847, 125 S. Ct. at 838, quoting United States v. Place, 462 U.S.
696, 707, 77 L. Ed. 2d 110, 121, 103 S. Ct. 2637, 2644 (1983).
The Court found that use of a dog sniff, which did not expose
noncontraband items that would otherwise remain hidden from
public view, during a lawful traffic stop, generally did not
18 No. 1-05-0599
implicate any legitimate privacy interests. Where the dog sniff
was performed on the exterior of the defendant's car while he was
lawfully stopped for a traffic offense, it did not rise to the
level of a constitutionally cognizable infringement. Caballes,
543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838.4
Caballes reaffirmed the survival of the duration prong of
the Gonzalez analysis. See Caballes, 543 U.S. at 407, 160 L. Ed.
2d at 846, 125 S. Ct. at 837 ("A seizure that is justified solely
by the interest in issuing a warning ticket to the driver can
become unlawful if it is prolonged beyond the time reasonably
required to complete [the] mission"). The second principle
stated in Caballes is that a police officer's actions do not
change the character of a traffic stop that is lawful to begin
with and otherwise executed in a reasonable manner unless the
actions infringe upon the defendant's constitutionally protected
interest in privacy. Caballes, 543 U.S. at 408, 160 L. Ed. 2d at
846, 125 S. Ct. at 837; but see Harris, 228 Ill. 2d at 240 (while
4 On remand, our supreme court held that the dog-sniff
evidence was properly admitted at the defendant's trial. People
v. Caballes, 221 Ill. 2d 282, 336, 851 N.E.2d 26 (2006).
19 No. 1-05-0599
Caballes may be read to preserve some role for the "fundamental
nature of the stop" prong of the Terry/Gonzalez inquiry, the
court in Harris did not resolve that question because Muehler
"unequivocally" overruled Gonzalez).5
Not only did Officer Tienstra's questioning of the defendant
impermissibly prolong the detention, but under Caballes, his
request to search the minivan also changed the fundamental nature
of the traffic stop because it infringed upon the defendant's
legitimate interest in privacy. In this case, the defendant was
"seized" as a result of the traffic stop. Under Caballes, the
search would have been proper if it had been limited to revealing
only items of a contraband nature. Unlike the "dog sniff," which
was conducted on the outside of the vehicle and which could only
detect contraband, the search conducted in this case was not
limited to revealing contraband items. The search was conducted
5 Nonetheless, the court in Harris concluded that a warrant
check did not implicate any legitimate privacy interests because
it did not reveal any legitimately private activity or
information, or result in physical contact with a person or his
property. Harris, 228 Ill. 2d at 237.
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on the interior of the minivan where the defendant had a
legitimate privacy interest in items of a noncontraband nature.
We conclude that the initial lawful seizure was rendered
unlawful by the actions of the police officers in impermissibly
prolonging the traffic stop and that the search of the minivan
infringed upon the defendant's constitutionally protected privacy
rights. The search violated the defendant's fourth amendment
rights, and therefore, we affirm the granting of the defendant's
motion to suppress.
Affirmed.
PATTI and LAMPKIN, JJ., concur.