People v. McQuown

Opinion

NO. 4-10-0297 Opinion Filed 2/16/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Macon County ABBY G. McQUOWN, ) No. 09CF1255 Defendant-Appellee. ) ) Honorable ) Timothy J. Steadman, ) Judge Presiding. ________________________________________________________________

JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Pope concurred in the judgment and opinion.

OPINION

In August 2009, the State charged defendant, Abby G.

McQuown, with the offenses of unlawful possession of a controlled

substance with intent to deliver, unlawful possession of a

controlled substance, and unlawful possession of cannabis. In

October 2009, defendant filed a motion to suppress evidence,

which the trial court granted.

On appeal, the State argues the trial court erred in

granting the motion to suppress. We affirm.

I. BACKGROUND

In August 2009, the State charged defendant with three

drug-related offenses. In count I, the State charged her with

the offense of unlawful possession of a controlled substance with

intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2008)),

alleging she knowingly and unlawfully possessed with intent to deliver 100 grams or more but less than 400 grams of a substance

containing cocaine. In count II, the State charged her with the

offense of unlawful possession of a controlled substance (720

ILCS 570/402(a)(2)(B) (West 2008)), alleging she knowingly and

unlawfully had in her possession 100 grams or more but less than

400 grams of a substance containing cocaine. In count III, the

State charged her with the offense of unlawful possession of

cannabis (720 ILCS 550/4(b) (West 2008)), alleging she knowingly

and unlawfully had in her possession more than 2.5 grams but less

than 10 grams of a substance containing cannabis. Defendant

pleaded not guilty.

In October 2009, defendant filed a motion to suppress

evidence. Defendant alleged she was pulled over on Interstate 72

for having an obstructed view. After issuing her a written

warning, Officer Chad Larner continued questioning her. Defen-

dant declined the officer's request to consent, and the officer

told her she would have to wait for the canine unit to arrive.

Defendant claimed her arrest was unlawful and the contraband

found in her vehicle should be suppressed.

In March 2010, the trial court conducted a hearing on

the motion to suppress. Defendant testified she was pulled over

on Interstate 72 at approximately 3 p.m. on August 10, 2009. The

police officer approached from the passenger side and asked for

her driver's license, registration, and proof of insurance. The

officer indicated defendant had been stopped for having an

obstructed windshield based on air fresheners hanging on the

- 2 - rearview mirror. After taking her documents, the officer asked

her to step out of her car. He then gave her a warning citation,

which indicated it was completed at 3:12 p.m. Thereafter, the

officer asked for permission to search the vehicle "quite a few

times," but defendant declined. Defendant stated a second

officer arrived "probably 30 minutes later." She also stated a

canine unit arrived 15 to 20 minutes later. She estimated the

traffic stop had taken "at least 45 minutes" before the canine

unit arrived.

On cross-examination, defendant testified she had three

air fresheners hanging from the rearview mirror. She also had a

spray air freshener in the car.

Decatur police officer Chad Larner testified he was

conducting patrol operations on Interstate 72 in Macon County on

August 10, 2009. Larner initiated a traffic stop for an ob-

structed windshield and asked defendant for her driver's license

and proof of insurance. He then issued her a written warning

citation, which indicated the arrival time as being 3:01 p.m. and

the time of completion as 3:12 p.m. After giving defendant a

copy of the warning, Larner requested permission to search the

car. Defendant refused. At approximately 3:25 p.m., Larner

requested other officers to come to the scene. Larner testified

the canine unit arrived on the scene less than 30 minutes after

the stop occurred.

On cross-examination, Officer Larner testified he

initially decided to follow defendant's car after noticing the

- 3 - obstructed windshield caused by objects suspended from the

rearview mirror. Thereafter, defendant made "an exaggerated lane

change" without using a turn signal. When Larner pulled up

alongside her, defendant's car "quickly decreased" its speed down

to approximately 43 miles per hour, "which is a couple of miles

below the posted minimum speed." Larner stated he could see

defendant "staring" at him in her rearview mirror. When he

pulled up alongside her, "she refused to make eye contact" with

him. He found this behavior inconsistent "with the general

motoring public." Larner also said defendant "ran her fingers

through her hair pretty frequently," which he characterized as a

"grooming gesture" that could be an indicator of nervous behav-

ior.

After stopping defendant's car, Officer Larner ap-

proached the passenger side. When defendant rolled down the

window, Larner stated he was "greeted with the overwhelming smell

of an artificial air freshener." He stated the scent was va-

nilla. He noticed at least three air fresheners hanging down

from the rearview mirror. Larner also saw air fresheners "sus-

pended from the turn signal" and clipped to the air vents. A

large spray bottle of air freshener rested on the front passenger

seat. Larner stated drug traffickers often try to overwhelm the

vehicle's interior with an artificial air freshener to prevent a

drug canine from detecting the odor of contraband.

Officer Larner asked defendant if she liked the smell

of vanilla, but she responded in the negative. When defendant

- 4 - handed over her driver's license and proof of insurance, Larner

noticed her "right hand and arm were significantly trembling and

shaking." While a certain level of nervousness is expected

during a traffic stop, Larner stated defendant's nervousness did

not subside but "increasingly grew during the course of the

stop." Larner took the documents back to his squad car.

After preparing a written warning, Officer Larner

returned to defendant's car and asked her to step out to the

front of his car. Larner asked her where she was coming from,

and defendant responded Danville. When asked why she was travel-

ing to Decatur, defendant stated she was going "to visit a friend

named Tommy." She did not know where Tommy lived but stated she

was supposed to call him when she arrived. Larner stated his

suspicions were growing at this time. During this conversation,

Larner noticed defendant looking back over her shoulder several

times toward her vehicle. This also increased Larner's suspi-

cions as people transporting contraband are "very concerned"

about their vehicle. Larner also stated defendant "had a very

difficult time standing still." She even stated she was "cold."

Larner estimated the asphalt to be 115°F on that "very hot summer

day."

Larner then asked defendant to sign the written warn-

ing. When Larner handed her the clipboard, he noticed she was

"trembling and shaking." She then asked if she could sit in his

squad car to sign the warning, which she did. After signing the

warning, Larner asked defendant for consent to search her car.

- 5 - She refused. He stated he asked for consent because "it's more

convenient" than waiting for another officer to arrive at the

scene. Larner then showed her a permission-to-search form.

Defendant requested to use the phone in her car, and Larner

allowed her to do so. She entered her car, retrieved her phone,

and made a call.

At that point, Larner requested a canine unit to come

to the scene. Once the unit arrived, and with defendant standing

behind Larner's vehicle, the dog alerted on her car. A search of

the car revealed cocaine located beneath the driver's seat.

On redirect examination, Officer Larner estimated he

requested a second officer and a canine unit at around 3:25 p.m.

Officer Dailey arrived within 2 to 3 minutes, and the canine unit

arrived within 10 to 15 minutes.

Following arguments on the motion, the trial court made

oral findings. The court found Officer Larner's testimony was

credible and probable cause existed for the traffic stop. The

court also found the stop occurred at 3:01 p.m., the warning

ticket was issued at 3:12 p.m., and the canine unit arrived at

approximately 3:50 p.m. After taking the matter under advise-

ment, the court issued a written order, stating, in part, as

follows:

"There were, generally, no facts which

surfaced at the time of the stop or during

the detention that would lead to a reasonable

belief that the defendant was involved in

- 6 - more serious crimes than routine traffic

offenses. Facts which may arguably have led

to such a belief are: (1) that the defen-

dant's vehicle smelled strongly of air fresh-

ener and (2) that there were three air fresh-

eners hanging from the rearview mirror, a

bottle of air freshener on the front passen-

ger seat, and air fresheners affixed to the

air vents located inside the vehicle. These

facts must be considered in light of Officer

Larner's training suggesting that drug traf-

fickers sometimes attempt to mask the odor of

drug contraband through the use of scents

emitted from air fresheners.

The fact that the presence of, and odor

from, air fresheners may constitute reason-

able suspicion of criminal activity beyond

that of traffic violations does not conclu-

sively resolve the matter. The State bears

the burden of showing that a seizure based on

reasonable suspicion was sufficiently limited

in scope and duration to satisfy the condi-

tions of an investigative seizure. [Cita-

tions.] In the case at bar, the officer

detected the overwhelming odor of air fresh-

ener, and the presence of air fresheners in

- 7 - the defendant's vehicle almost immediately

after effecting the traffic stop. Despite

these observations, several minutes passed

before the canine unit was summoned to the

scene. As mentioned previously, the canine

unit did not arrive until 37 or 38 minutes

after the warning citation was issued. Under

these facts, the court finds that the State

has failed to meet its burden in showing that

the seizure of the defendant was sufficiently

limited in duration."

The court granted the motion to suppress. In April 2010, the

State filed a certificate of impairment. This appeal followed.

II. ANALYSIS

The State argues the trial court erred in granting

defendant's motion to suppress as Officer Larner had reasonable

suspicion to detain her car for a canine sniff. We disagree.

A. Standard of Review and Burden of Proof

In reviewing a motion to suppress on appeal, we are

presented with mixed questions of law and fact. People v. Terry,

379 Ill. App. 3d 288, 292, 883 N.E.2d 716, 720 (2008). "[The]

trial court's findings of historical fact are reviewed for clear

error, giving due weight to any inferences drawn from those facts

by the [court]." People v. Harris, 228 Ill. 2d 222, 230, 886

N.E.2d 947, 953 (2008). Great deference is accorded a trial

court's factual findings, and those findings will be reversed

- 8 - only if against the manifest weight of the evidence. People v.

Cosby, 231 Ill. 2d 262, 270-71, 898 N.E.2d 603, 609 (2008)

(quoting People v. Luedemann, 222 Ill. 2d 530, 542, 857 N.E.2d

187, 195 (2006)).

"A reviewing court, however, remains free to undertake

its own assessment of the facts in relation to the issues and may

draw its own conclusions when deciding what relief should be

granted." Luedemann, 222 Ill. 2d at 542, 857 N.E.2d at 195.

Thus, we review the trial court's ultimate ruling as to whether

suppression was warranted de novo. People v. Oliver, 236 Ill. 2d

448, 454, 925 N.E.2d 1107, 1110 (2010).

On a motion to suppress evidence, the defendant has the

burden of proving the search and seizure were unlawful. 725 ILCS

5/114-12(b) (West 2008); People v. Barker, 369 Ill. App. 3d 670,

673, 867 N.E.2d 1021, 1023 (2007). "'However, once the defendant

makes a prima facie showing of an illegal search and seizure, the

burden shifts to the State to produce evidence justifying the

intrusion.'" People v. Reatherford, 345 Ill. App. 3d 327, 334,

802 N.E.2d 340, 347-48 (2003) (quoting People v. Ortiz, 317 Ill.

App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000)).

B. The Fourth Amendment

The fourth amendment to the United States Constitution

guarantees "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures." U.S. Const., amend. IV. Similarly, the

Illinois Constitution affords citizens with "the right to be

- 9 - secure in their persons, houses, papers[,] and other possessions

against unreasonable searches[] [and] seizures." Ill. Const.

1970, art. I, §6. Our supreme court has interpreted the search-

and-seizure clause of the Illinois Constitution in a manner

consistent with the United States Supreme Court's fourth-amend-

ment jurisprudence. See People v. Caballes, 221 Ill. 2d 282,

335-36, 851 N.E.2d 26, 57 (2006).

"When a police officer observes a driver commit a

traffic 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, 1097 (2005). A stop of a

vehicle and the detention of its occupants constitutes a "sei-

zure" under the fourth amendment. People v. Jones, 215 Ill. 2d

261, 270, 830 N.E.2d 541, 549 (2005). To be constitutionally

permissible, a vehicle stop must be reasonable under the circum-

stances, and the stop will be deemed reasonable "'where the

police have probable cause to believe that a traffic violation

has occurred.'" Ramsey, 362 Ill. App. 3d at 615, 839 N.E.2d at

1098 (quoting Whren v. United States, 517 U.S. 806, 810 (1996)).

In the case sub judice, Officer Larner initiated a

traffic stop after observing defendant driving a vehicle with an

obstructed windshield. It is a violation of the Illinois Vehicle

Code to "drive a motor vehicle with any objects placed or sus-

pended between the driver and the front windshield *** which

materially obstructs the driver's view." 625 ILCS 5/12-503(c)

(West 2008). Thus, Officer Larner had probable cause to initiate

- 10 - a valid traffic stop here.

In analyzing the conduct of police officers during a

lawful traffic stop, our supreme court has looked to the United

States Supreme Court's decision in Illinois v. Caballes, 543 U.S.

405 (2005). Harris, 228 Ill. 2d at 239, 886 N.E.2d at 958.

"First, a seizure that is lawful at its in-

ception can become unlawful 'if it is pro-

longed beyond the time reasonably required'

to complete the purpose of the stop.

Caballes, 543 U.S. at 407, 160 L. Ed. 2d at

846, 125 S. Ct. at 837. Second, so long as

the traffic stop is 'otherwise executed in a

reasonable manner,' police conduct does 'not

change the character' of the stop unless the

conduct itself infringes upon the seized

individual's 'constitutionally protected

interest in privacy.' Caballes, 543 U.S. at

408, 160 L. Ed. 2d at 847, 125 S. Ct. at

837." Harris, 228 Ill. 2d at 239, 886 N.E.2d

at 958-59.

"Thus, police conduct occurring during an otherwise lawful

seizure does not render the seizure unlawful unless it either

unreasonably prolongs the duration of the detention or independ-

ently triggers the fourth amendment." People v. Baldwin, 388

Ill. App. 3d 1028, 1033, 904 N.E.2d 1193, 1198 (2009).

The central issue in this case revolves around the

- 11 - duration principle. In looking at the length of the stop, no

bright-line rule has been adopted to indicate when a stop has

been unreasonably prolonged. Baldwin, 388 Ill. App. 3d at 1034,

904 N.E.2d at 1199. Instead, the duration of the stop must be

justified by the nature of the offense and "the ordinary inqui-

ries incident to such a stop." Caballes, 543 U.S. at 408; People

v. Driggers, 222 Ill. 2d 65, 73, 853 N.E.2d 414, 419 (2006);

People v. Koutsakis, 272 Ill. App. 3d 159, 164, 649 N.E.2d 605,

609 (1995) ("Courts must consider the purpose to be served by the

stop as well as the time reasonably needed to effectuate those

purposes."). Courts "employ a contextual, totality of the

circumstances analysis that includes consideration of the brevity

of the stop and whether the police acted diligently during the

stop." Baldwin, 388 Ill. App. 3d at 1034, 904 N.E.2d at 1199.

In this case, Officer Larner stopped defendant's

vehicle after observing an obstructed windshield. The trial

court found the stop occurred at 3:01 p.m., as noted on the

written warning. After asking defendant for her driver's license

and proof of insurance, Larner completed the warning citation at

3:12 p.m. Defendant signed the citation, but nothing indicates

Officer Larner returned her driver's license and proof of insur-

ance with the citation. Between 3:12 p.m. and 3:25 p.m., Larner

requested permission to search, but defendant refused. He called

for the canine unit at 3:25 p.m. and it arrived at approximately

3:50 p.m.

We hold the traffic stop was unduly prolonged in this

- 12 - case. The "business portion" of the stop took a little over 10

minutes, but Officer Larner did not ask for a canine unit until

13 minutes after the initial purpose of the stop had ended.

Then, the canine unit did not arrive until 25 minutes later. See

Baldwin, 388 Ill. App. 3d at 1035, 904 N.E.2d at 1199 (finding

14-minute stop was unreasonably prolonged when the initial

purpose of the stop concluded after 4.5 minutes); People v.

Ruffin, 315 Ill. App. 3d 744, 749-50, 734 N.E.2d 507, 511 (2000)

(finding the 22-minute stop was unreasonably prolonged when the

business portion took only 10 minutes). Thus, the duration of

the detention was prolonged beyond the time reasonably required

to complete the traffic stop.

The State, however, argues the evidence justified

Officer Larner's reasonable suspicion that defendant's vehicle

contained contraband, thereby allowing for further detention to

await the canine unit. The State points out the overwhelming

smell of vanilla air freshener, defendant's nervousness, her

inability to state exactly where she was heading, her frequent

looks back to her vehicle, and the fact that Interstate 72 is

known as a drug corridor.

"'The State bears the burden of showing

that a seizure based on reasonable suspicion

was sufficiently limited in scope and dura-

tion' [citation], and 'in assessing whether a

detention is too long in duration to be jus-

tified as an investigatory stop, we must

- 13 - consider whether the police diligently pur-

sued a means of investigation that was likely

to confirm or dispel their suspicions

quickly.' [Citations.]" People v. O'Dell,

392 Ill. App. 3d 979, 986, 913 N.E.2d 107,

113 (2009).

Here, the bulk of the factors supporting Officer

Larner's reasonable suspicion were known early on in the stop.

He smelled the abundance of air freshener as soon as defendant

rolled down her window. Three air fresheners were hanging down

from the rearview mirror and more were suspended from the turn

signal and clipped to the air vents. A large spray bottle of air

freshener rested on the front passenger seat. Larner also

noticed defendant was shaking and trembling when she handed over

her driver's license and proof of insurance. Yet Larner did not

request a canine unit. After he filled out the warning citation,

Larner asked defendant where she was going. She stated she was

going to meet with Tommy but was not sure where he lived.

Defendant also stated she was cold on that hot summer day and

kept looking back over her shoulder at her car. After asking

defendant to sign the citation, Larner stated she was "trembling

and shaking" in trying to do so. Still, Larner did not call for

the canine unit. Instead, he attempted to obtain defendant's

consent for approximately the next 13 minutes. It was only after

that length of time that Larner called for the canine unit, and

even then, the unit did not arrive for another 25 minutes or so.

- 14 - The length of the stop was unreasonable in this case, and the

trial court did not err in granting the motion to suppress.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

- 15 -