People v. Kendricks

2023 IL App (4th) 230179, 243 N.E.3d 211

• Court: Appellate Court of Illinois
• Decided: December 19, 2023
• Docket: 4-23-0179
• Status: Published

Opinion

2023 IL App (4th) 230179 FILED NO. 4-23-0179 December 19, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Henry County JAMES H. KENDRICKS, ) No. 20CF32 Defendant-Appellant. ) ) Honorable ) Terence M. Patton, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Turner and Zenoff concurred in the judgment and opinion.

OPINION ¶1 In the Henry County circuit court, a jury found defendant, James H. Kendricks,

guilty of unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2020)), unlawful possession

of cannabis with the intent to deliver (id. § 5(f)), and unlawful possession of cannabis (id. § 4(f)).

The court sentenced him to imprisonment for 10 years.

¶2 Defendant appeals, claiming the circuit court erred by denying his motion for the

suppression of evidence. Specifically, he makes two arguments. First, he argues that an Illinois

state trooper temporarily seized his car without reasonable, articulable suspicion to justify the

seizure. Second, defendant argues that, without probable cause, a drug detection dog trespassed on

the exterior of his car, thereby subjecting his car to an unreasonable search.

¶3 We hold, first, that the trooper could honestly rely on Illinois case law that a dog

sniff of the exterior of a car parked in a public place is neither a search nor a seizure within the meaning of the fourth amendment (U.S. Const., amend. IV). Second, we hold that, as soon as the

trained, certified drug detection dog went “into odor” two seconds after approaching defendant’s

car, the trooper could honestly believe he had probable cause to search the car—before the dog

touched the car. Therefore, under the good-faith exception to the exclusionary rule, we affirm the

circuit court’s judgment.

¶4 I. BACKGROUND

¶5 At the hearing on the motion for suppression, an Illinois state trooper, Andrew

Scott, testified that in 2019 he took a K-9 training course at the Illinois State Police Academy in

Springfield, Illinois. It was a 320-hour, 10-week course accredited by the Illinois Law Enforcement

Standards Board. Scott completed the course and received a certification in narcotics detection.

The certification testing included a dog, which had to detect, with 100% accuracy, the odors of

methamphetamine, cocaine, and heroin. The dog was trained to give a final alert when it located

the area where the drug odor was most intense. This final alert was a passive alert: the dog sat or

lay down with its nose close to the source of the strongest odor.

¶6 On January 24, 2020, with the dog kenneled in his squad car, Scott passed a red Kia

automobile with Alabama license plates. He turned around and followed the Kia to a gas station

in Geneseo, Illinois. He parked on the opposite side of the pump as the Kia and went into the gas

station. He asked the man who had been driving the Kia, defendant, if he would consent to a dog

sniff of the car. Scott knew he did not need consent to do an exterior dog sniff in a public place.

Nevertheless, he liked to find out if the person maybe had something to hide. Defendant answered

that he did not consent. Scott exited the gas station and ran the dog around the Kia anyway. The

dog sniff was videoed by the surveillance system of the gas station. The video was played in the

suppression hearing.

-2- ¶7 After playing the video, the prosecutor asked Scott questions about it. Scott testified

that a mere “two seconds after starting the sniff,” the dog “went into odor.” The passive alert, Scott

explained, was only the final alert, signifying that the dog had found the area of the Kia where the

odor was strongest. Initially, however, before giving the passive alert, the dog went into odor,

“show[ing] the distinct change of behavior at the driver’s door, a quick head snap.” “Once he goes

into odor,” Scott explained, “he’s trying to find the source of that odor.” So, as soon as the dog

perked up and became interested—or went into odor—Scott inferred that the dog had detected the

smell of methamphetamine, cocaine, or heroin seeping out of the Kia. Then the only remaining

question was specifically where in the car the contraband was located, a question that ultimately

would be addressed, supposedly, by the passive alert. After going into odor, the dog was occupied

with “detailing,” trying to find where on the Kia the odor was most intense. In Scott’s description

of this detailing, the dog

“[b]egan sniffing the rear door and made his way back to the trunk. Same thing,

detailing the trunk, came back around to the driver—or to the front bumper and he

pulled me right to that driver’s door. Pressed his nose against the door handle. Put

his paws up on the door and passenger door, detailed the scene, lowered into a sit.”

After the dog had almost instantaneously picked up a scent and was going at the unoccupied car

this way to find out where the scent was most powerful, defendant and his brother, Fred Kendricks,

came out of the gas station. They protested. Defendant demanded that Scott state his badge number.

Scott replied he would give them his badge number as soon as he was finished with the dog sniff.

¶8 The prosecutor asked Scott:

“Q. You had not told the Kendricks[es] they were not free to leave until the

very end of the footage that was previously played by defense counsel?

-3- A. That is correct.

Q. And that occurred after you were putting the K-9 back into your squad

car?

A. Yes, ma’am. Once I put [the dog] back in his kennel, I closed the door

and walked around the pump to address both the Kendricks brothers. ***

Q. At any point while you were conducting the free-air sniff, did you ever

tell either of the subjects that they couldn’t get into their vehicle or couldn’t leave?

***

A. While I was doing the free-air sniff? No.

Q. Did they ever make any attempt to get in the vehicle at that point?

A. No, ma’am.”

Scott testified, however, that as far as he was concerned, as soon as the dog went into odor two

seconds after beginning the sniff, defendant and his brother were “not free to leave” (although

Scott had not yet told them so).

¶9 As it turned out, methamphetamine, cocaine, or heroin was not found in the Kia.

Instead, 10 pounds of marijuana was found in the trunk.

¶ 10 II. ANALYSIS

¶ 11 On appeal, defendant makes essentially two arguments.

¶ 12 First, defendant argues that the dog sniff was an unconstitutional seizure of the Kia,

a car that was in his possession. The fourth amendment (U.S. Const., amend. IV) allowed Scott to

seize the car for a brief investigation only if he were aware of “specific articulable facts” that would

justify a suspicion that the car contained narcotics. See United States v. Place, 462 U.S. 696, 706

(1983). The dog sniff itself, defendant argues, was such a seizure—and it was an unreasonable

-4- seizure, he continues, a seizure unsupported by specific, articulable facts to justify an inference

that the car contained narcotics. The fourth amendment prohibits unreasonable searches and

seizures (see U.S. Const., amend. IV), as does the Illinois Constitution (Ill. Const. 1970, art. I, § 6).

¶ 13 Second, defendant argues that because the dog placed its paws on his car and its

snout underneath his car in an attempt to find drugs, the dog sniff was a trespass upon his car and

therefore an unconstitutional search of his car: a warrantless search unsupported by probable cause.

See People v. Mallery, 2023 IL App (4th) 220528, ¶ 21 (holding that “[a]lthough a police officer

may search a vehicle without a warrant, the officer’s search must still be supported by probable

cause”).

¶ 14 If we can avoid these constitutional questions by applying the judicially created,

nonconstitutional good-faith exception, we should do so. See People v. Parlier, 2023 IL App (4th)

220091, ¶ 32; see also People v. White, 2011 IL 109689, ¶ 148 (“Certainly, it is a fundamental rule

of judicial restraint that a court not reach constitutional questions in advance of the necessity of

deciding them.” (Emphasis in original.)). When “the police conduct a warrantless search under an

objectively reasonable belief that their actions were sanctioned by ‘binding appellate precedent’

in existence at the time,” there is a “good-faith exception to the exclusionary rule.” People v. Potts,

2021 IL App (1st) 161219, ¶ 113. Thus, even though Scott lacked a warrant to search the Kia, the

evidence should not be suppressed if he had an objectively reasonable belief that binding appellate

case law supported his actions. We decide de novo whether this case falls into the good-faith

exception. See id. ¶ 109.

¶ 15 Corresponding to the two issues that defendant raises on appeal, the good-faith

question is twofold. First, on the basis of binding appellate precedent, could Scott have believed,

in good faith, that a dog sniff of the exterior of a car parked in a public place was neither a search

-5- nor a seizure? Second, on the basis of binding appellate precedent, could Scott have believed, in

good faith, that the dog’s going into odor upon approaching the car—before making any physical

contact with the car—created probable cause to search the car? As we will explain, the answer to

both of those questions is yes.

¶ 16 Let us begin with the first question. At the time Scott ran the dog around the Kia,

there were decisions by the Illinois Appellate Court holding that a canine sniff of the exterior of a

motor vehicle parked in a public place was neither a search (People v. Ortiz, 317 Ill. App. 3d 212,

223 (2000)) nor a seizure (People v. Thomas, 2018 IL App (4th) 170440, ¶ 60). Therefore, even

though defendant claims that by subjecting the Kia to an exterior dog sniff, Scott temporarily

detained the Kia, Scott had a good-faith basis for thinking otherwise. Before conducting the dog

sniff and while conducting it, Scott did not detain defendant or his car “by means of physical force

or a show of authority.” (Internal quotation marks omitted.) See People v. Bujari, 2020 IL App

(3d) 190028, ¶ 47. As the appellate court put it in Bujari:

“[P]olice must have reasonable suspicion to justify detaining someone for the

purpose of performing a dog sniff. [Citations.] However, police officers do not need

independent reasonable articulable suspicion of drug-related activity to perform a

dog sniff because a dog sniff is not, in itself, either a search or a seizure within the

meaning of the fourth amendment.” (Emphasis in original.) Id. ¶ 49.

Granted, Bujari was issued the month after the canine sniff of the Kia. Even so, if the appellate

court could arrive at the above-quoted conclusions in Bujari, Scott could have legitimately arrived

at the same conclusions. He did not detain defendant or his car for the purpose of performing a

dog sniff. See Rodriguez v. United States, 575 U.S. 348, 355 (2015). Nor, before conducting the

dog sniff, did he carry away defendant’s personal property and keep it for a long time as in Place,

-6- 462 U.S. at 699. While avoiding the pitfalls in Rodriguez and Place, Scott could have honestly

relied on Ortiz and Thomas, which were “ ‘binding appellate precedent[s].’ ” Potts, 2021 IL App

(1st) 161219, ¶ 113.

¶ 17 It is true that, after Thomas and Ortiz, the United States Supreme Court issued a

decision holding that “physically entering and occupying” the home—including its curtilage,

which was “part of the home itself”—to conduct a canine sniff was a search within the meaning

of the fourth amendment. Florida v. Jardines, 569 U.S. 1, 5-6 (2013). The Kia, however, was not

defendant’s home—what the Supreme Court characterized as the “first among equals” for

purposes of the fourth amendment (id. at 6). Nor was the Kia parked at defendant’s home; rather,

it was parked at a gas station. See People v. Burns, 2016 IL 118973, ¶ 55 (agreeing with the

appellate court that “use of a drug-detection dog to sniff a home in the hopes of discovering

incriminating evidence presents a very different issue than use of drug-detection dogs on

automobiles during a lawful traffic stop and in public areas”). Nor did Scott, merely by running

his dog around the Kia, “physically enter[ ] and occupy[ ]” the Kia. See Jardines, 569 U.S. at 6.

Therefore, Scott could have reasonably regarded Jardines as distinguishable for multiple reasons,

and he could have reasonably regarded Ortiz as still the applicable law.

¶ 18 To be sure, another decision by the United States Supreme Court, United States v.

Jones, 565 U.S. 400 (2012), was somewhat closer to Scott’s circumstances in that Jones at least

involved a motor vehicle. See id. at 402. On the other hand, however, Jones was farther from his

circumstances in that it involved the installation of Global Positioning System (GPS) tracking

device on the vehicle instead of a dog sniff of the vehicle’s exterior. See id.

¶ 19 In Jones, the defendant appealed his conviction of conspiracy to distribute cocaine.

Id. at 403-04. He claimed a violation of the fourth amendment in that, without a search warrant,

-7- the police had attached a GPS tracking device to the undercarriage of his Jeep while his Jeep was

parked in a public parking lot. Id. at 403. The United States Court of Appeals for the District of

Columbia reversed the conviction, holding that the “admission of the evidence obtained by

warrantless use of the GPS device” had “violated the Fourth Amendment.” Id. at 404. Agreeing

with that holding, the Supreme Court remarked, “It is important to be clear about what occurred

in this case: The Government physically occupied private property for the purpose of obtaining

information. We have no doubt that such a physical intrusion would have been considered a

‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 404-05. Until

the second half of the twentieth century, the Supreme Court noted, “our Fourth Amendment

jurisprudence was tied to common-law trespass.” Id. at 405. The fourth amendment “was

understood to embody a particular concern for government trespass upon the areas (‘persons,

houses, papers, and effects’) it enumerates.” Id. at 406. The Supreme Court concluded that

“[w]here, as here, the Government obtains information by physically intruding on a

constitutionally protected area, such a search has undoubtedly occurred.” Id. at 406 n.3.

¶ 20 Defendant complains that, in the present case, the dog “put his paws on the trunk

of the vehicle and on either the driver’s door or the driver’s side front fender.” Because this

trespass, as defendant terms it, was “for the purpose of obtaining information” (id. at 404), the Kia

was subjected to a search, by defendant’s reasoning (see id. at 408 n.5)—and he characterizes the

search as unreasonable, a violation of the fourth amendment, because, in his view, the search was

unsupported by probable cause (see Mallery, 2023 IL App (4th) 220528, ¶ 21). According to the

State, however, “the evidence establishes that [the dog] alerted to the presence of narcotics before

he ever put his paws on the vehicle, rendering any later contact immaterial.” Defendant does not

appear to disagree that before laying a paw on the Kia, the dog went into odor. The dog smelled

-8- drugs almost instantaneously upon approaching the car, and the subsequent actions of the dog in

putting its paws on the car were merely “detailing,” the dog’s attempt to find exactly where in the

car the drugs (apparently inferred to exist) were located.

¶ 21 We acknowledge that, ultimately, in the search of the car’s interior, the police found

cannabis instead of methamphetamine, cocaine, or heroin. However, we assess probable cause on

the basis of what Scott knew at the time. See People v. Flora, 2023 IL App (4th) 220926-U, ¶ 13

(“An officer has probable cause when the totality of the facts and circumstances known to the

officer at the time of the search would justify a reasonable person in believing the vehicle contains

contraband or evidence of criminal activity.”). Scott knew at the time that a dog trained and

certified to detect methamphetamine, cocaine, and heroin with 100% accuracy went into odor

when approaching the Kia.

¶ 22 The positive behavior of a drug sniffing dog preceding its passive alert—its visible

act of going into odor before pinpointing where in the car the drugs are located—has been held to

create probable cause to believe that drugs are in the car. See Steck v. State, 197 A.3d 531, 543-44

(Md. Ct. Spec. App. 2018) (despite the lack of a final, trained alert, the police had probable cause

to believe that the vehicle contained drugs because the dog went into odor); United States v.

Parada, 577 F.3d 1275, 1282 (10th Cir. 2009) (a general alert is enough to provide probable cause,

and it is unnecessary for “the dog to give a final indication before probable cause is established”).

We do not mean to suggest it was the responsibility of a reasonable Illinois state trooper to know

Steck, Parada, and other fourth amendment precedents from foreign jurisdictions. We merely

suggest that if Steck and Parada could conclude that a dog’s giving a general alert, or going into

odor, was enough to create probable cause, a reasonable police officer in Scott’s circumstances

-9- could have likewise so concluded. (Otherwise, Steck and Parada would have to be dismissed as

products of bad faith.) The United States Supreme Court has held:

“[E]vidence of a dog’s satisfactory performance in a certification or training

program can itself provide sufficient reason to trust his alert. If a bona fide

organization has certified a dog after testing his reliability in a controlled setting, a

court can presume (subject to any conflicting evidence offered) that the dog’s alert

provides probable cause to search.” Florida v. Harris, 568 U.S. 237, 246-47 (2013).

If a court can make that presumption, so can a police officer. An alert from a certified dog, such

as the dog in this case, can be reasonably trusted—and it can be a general alert, a going into odor.

Trooper Scott was able to describe how the dog acted when it went into odor, and we will “ ‘not

engage *** in the evaluation of whether [the dog] should have used an alternative means to indicate

the presence of drugs.’ ” McKinney v. State, 212 N.E.3d 697, 706 (Ind. Ct. App. 2023).

¶ 23 In sum, then, binding appellate precedent, such as Ortiz, 317 Ill. App. 3d at 223,

and Thomas, 2018 IL App (4th) 170440, ¶ 60, informed Scott that a canine sniff of the exterior of

a motor vehicle parked in a public place was neither a search nor a seizure within the meaning of

the fourth amendment. Thomas likewise informed him that “[i]f a dog smells drugs in a vehicle,

the police have probable cause to search the vehicle.” Id. ¶ 74. Thomas did not say that if a dog

gave a final alert, the police had probable cause to search the vehicle. Rather, Thomas said that

“[i]f a dog smells drugs in a vehicle, the police have probable cause to search the vehicle.” Id. We

could not fairly blame a police officer for taking Thomas precisely at its word. Going into odor

means smelling drugs in the vehicle. Two seconds after the dog sniff of the Kia began, the dog

visibly went into odor, thereby signifying it smelled the odor of drugs emanating from the car’s

interior. At that point, before either he or the dog touched the car, Scott could honestly believe he

- 10 - had probable cause to detain and search the car. He could reasonably believe he had a privilege to

commit what otherwise might have been a trespass to chattels. See Restatement (Second) of Torts

§ 10(2)(b), (c) (1965). Arguably, a privilege meant there was no trespass and, hence, no search

within the meaning of Jones. See Jones, 565 U.S. at 408 n.5 (trespass “conjoined with *** an

attempt to find something or to obtain information” is a search).

¶ 24 The upshot is this: on the undisputed material facts of this case, we see no police

misconduct to deter. Therefore, we agree with the denial of defendant’s motion for the suppression

of evidence. See Potts, 2021 IL App (1st) 161219, ¶ 113; People v. McDonough, 395 Ill. App. 3d

194, 199 (2009).

¶ 25 III. CONCLUSION

¶ 26 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 27 Affirmed.

- 11 - People v. Kendricks, 2023 IL App (4th) 230179

Decision Under Review: Appeal from the Circuit Court of Henry County, No. 20-CF-32; the Hon. Terence M. Patton, Judge, presiding.

Attorneys Omer Jaleel, of Rolling Meadows, for appellant. for Appellant:

Attorneys Catherine L. Runty, State’s Attorney, of Cambridge (Patrick for Delfino, Thomas D. Arado, and Justin A. Nicolosi, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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