No. 3--04--0427
_________________________________________________________________ Filed January 20, 2009 IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 02--CF--326 ) ANTHONY P. OLIVER, ) Honorable ) Ted J. Hamer, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE McDADE delivered the opinion of the court: _________________________________________________________________
The defendant, Anthony P. Oliver, was charged with unlawful
possession of a controlled substance with intent to deliver (720
ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of a
controlled substance (720 ILCS 570/402(a)(2)(B) (West 2002)). He
filed pretrial motions to suppress his confession and to quash
his arrest, which the circuit court denied. After a bench trial,
the court found the defendant guilty on both counts, but that the
latter count would merge into the former count. The court
sentenced the defendant to 10 years of imprisonment on the former
count. On appeal, the defendant argued that the arresting
officer illegally detained him following a traffic stop, thereby
tainting the subsequent search that resulted in the discovery of
cocaine in the trunk of the vehicle. The defendant also argued, in the alternative, that he was entitled to $65 credit against
his fines for presentence incarceration. In prior decisions, we
reversed and remanded. The Illinois Supreme Court has entered a
supervisory order directing this court to vacate our judgment and
reconsider our decision in light of People v. Cosby, 231 Ill. 2d
262 (2008). After reconsideration, we reverse and remand.
FACTS
At the suppression hearing, Henry County Deputy Sheriff
Glenn Hampton testified that, during the early morning hours of
November 14, 2002, he observed a vehicle following another
vehicle too closely on Interstate 80. Hampton initiated a
traffic stop of the offending vehicle.
Hampton approached the driver's side of the vehicle, where
he found the defendant in the driver's seat and Orlando James in
the passenger's seat. Hampton asked for the defendant's license;
however, the defendant gave Hampton a state identification card.
Hampton placed the defendant in the passenger's seat of the squad
car while he ran the defendant's card. The dispatcher informed
Hampton that the defendant did not have a valid driver's license. In response to Hampton's inquiry, the defendant stated that
he had problems with his license due to an error attributable to
the Secretary of State. Hampton did not arrest the defendant; he
merely stated that the defendant needed to resolve that
situation.
At some point while the defendant was in the squad car,
Hampton approached James to make sure he had a valid driver's
2 license. The dispatcher informed Hampton that James was on
mandatory supervised release from the Department of Corrections,
although Hampton was not told for what James had been
incarcerated. After Hampton received the information regarding
the defendant, the vehicle, and James, Hampton returned the
defendant's card and informed the defendant that he was "free to
go" as long as James drove.
At that time, Hampton asked the defendant if there were any
weapons or contraband in the vehicle. Hampton testified that he
was suspicious of "a very strong smell of an aroma, of some sort
of fragrance, real strong," coming from inside the vehicle.
Hampton stated that vehicles transporting contraband sometimes
use strong fragrances as masking agents.
The defendant answered that there were no weapons or
contraband in the vehicle. In response, Hampton asked the
defendant if he was certain of that. The defendant said yes, he
was certain, but also told Hampton that he could search the
vehicle if he wanted. Hampton took the defendant's statement as
consent to search the vehicle. Hampton next approached the passenger's side of the vehicle
and asked James to exit the vehicle. Hampton informed James that
the defendant consented to a search of the vehicle and asked
James for consent to search. James consented. After placing
James near the rear of the vehicle and the defendant at the front
of the vehicle, Hampton began his search. The only item Hampton
found in the vehicle's interior was a liquor bottle containing
3 the same fragrance emanating from the vehicle.
Hampton then asked James for consent to search the trunk.
James consented. Hampton also asked the defendant for consent to
search the trunk. The defendant also consented. During his
search of the trunk, Hampton found a plastic baggie containing
cocaine in the wheel well of the vehicle.
The defendant later gave a voluntary written statement to
Hampton, stating that he was taking the cocaine to a party, but
that he was not intending to sell the cocaine. He also stated
that he was "ready to leave the streets" and give up using drugs.
The defendant testified that he was driving a vehicle west
on Interstate 80 on the morning in question. James was in the
passenger's seat. The vehicle belonged to James' wife. The
defendant stated that he was in the left lane, passing a truck
that was in the right lane. Hampton's squad car was turning
around in a u-turn area on the interstate. The defendant passed
Hampton, and Hampton began following the defendant. Hampton then
pulled the defendant over.
Hampton approached the driver's side and asked the defendant for his license. The defendant responded that he only had a
state identification card because someone in Connecticut had been
using his name. Hampton then placed the defendant in the squad
car.
Hampton ran the defendant's card, which came back as
suspended. Hampton exited the squad car and approached James,
who gave Hampton his information verbally because he did not have
4 his license on him. Hampton returned to the squad car and ran
James's license. The dispatcher told Hampton that James was on
parole. Hampton then returned the defendant's card and told him
that he was free to go. The defendant admitted that he felt free
to go at that point.
Hampton next informed the defendant that he was going to
search the vehicle, and that, if there was nothing in the
vehicle, James would have to drive. Hampton then asked the
defendant if there were guns or drugs in the vehicle. The
defendant said Hampton never asked him whether Hampton could
search the vehicle. The defendant stated that his door was
locked and that he no longer felt free to leave after Hampton
said he was going to search the vehicle.
Hampton exited the squad car and approached James, whom he
had exit the vehicle. Hampton returned and had the defendant
exit the squad car. Hampton placed the defendant at the front of
the vehicle and James at the rear. Hampton then began to search
the vehicle.
After Hampton searched the interior, he opened the trunk and began to search it. The defendant stated that Hampton did not
ask him for consent to search the trunk and that he did not hear
Hampton ask James for consent to search the trunk.
During his search of the trunk, Hampton rose up with his gun
drawn and told the defendant to "freeze" and to put his hands on
his head. Hampton then made the defendant walk around to the
back of the vehicle, where he cuffed the defendant and James.
5 The defendant stated that his written statement was untrue.
He stated that Hampton told the defendant what to write because
the defendant had to "impress the State" in order to get the
intent charge dropped. Additionally, the defendant stated that
Hampton encouraged him to talk to James regarding the incident to
ensure they had the same version of what happened. On recall,
Hampton denied telling the defendant what to write and denied
encouraging the defendant to talk to James regarding the
incident.
Orlando James testified that, on the morning in question, he
was the passenger in his wife's vehicle. The defendant was
driving. Hampton pulled them over and approached the driver's
side of the vehicle. The defendant rolled the window down, and
Hampton said he pulled the defendant over for following another
vehicle too closely.
The defendant gave Hampton a state identification card, and
Hampton took the defendant back to the squad car while he ran the
defendant's card. About 10 minutes later, Hampton approached
James. He asked for James' license. James said that he had a license, but that he did not have it on him. James then gave
Hampton his personal information, and Hampton returned to the
squad car.
Hampton returned about 10 minutes later with the defendant
walking slightly behind him. Hampton asked James to exit the
vehicle and told the defendant to go to the front of the vehicle.
Hampton then asked James if he had any contraband on him, to
6 which James said no. Hampton asked for and received James's
consent to search James' person. Hampton then placed James at
the rear of the vehicle.
Hampton then began searching the vehicle's interior. James
stated that Hampton never asked if he could search the vehicle
and that he never heard Hampton ask the defendant if he could
search the vehicle. After searching the interior, Hampton began
searching the trunk. He opened the trunk with the key. Again,
James stated that Hampton did not ask for consent to search the
trunk and that he did not hear Hampton ask the defendant for
consent to search the trunk.
With regard to the alleged events surrounding the
defendant's written statement, James stated that Hampton told him
that Hampton knew the State's Attorney personally and that
Hampton was going to try to help them out by getting the intent
charge dropped. James also stated that Hampton told him that he
needed to "follow up" with the defendant's version of what
happened in order to convince the State's Attorney to drop the
intent charge, and that Hampton actually told him several parts of the defendant's version. James stated that Hampton placed him
in the same room with the defendant for five minutes to "talk it
over."
On April 4, 2003, the circuit court denied the defendant's
motions to suppress. The court found that the defendant and
James felt that they were free to go when Hampton made the
request to search the vehicle, and that Hampton did not illegally
7 detain them prior to requesting consent to search. Accordingly,
the court held that the defendant and James voluntarily consented
to the search.
At the bench trial, Hampton and the defendant offered
testimony similar to their testimony from the suppression
hearing. At the conclusion of the bench trial, the court found
the defendant guilty on both counts.
On appeal, the defendant argued that Hampton illegally
detained him following the traffic stop, thereby tainting the
subsequent search that resulted in the discovery of cocaine in
the trunk of the vehicle. This court agreed, and we reversed the
circuit court's judgment. The State appealed.
In a supervisory order issued on November 26, 2008, the
Illinois Supreme Court denied the State's petition for leave to
appeal but remanded the case to this court for reconsideration in
light of People v. Cosby, 231 Ill. 2d 262 (2008).
ANALYSIS
On appeal, the defendant argues that the circuit court erred
when it denied his motion to suppress. Specifically, the defendant argues that he was illegally seized after the traffic
stop had ended, thereby tainting the evidence found in the trunk
of the vehicle.
The ruling of a trial court on a motion to suppress evidence
frequently presents mixed questions of fact and of law. People
v. Smith, 214 Ill. 2d 338, 827 N.E.2d 444 (2005). Because the
trier of fact is in the best position to review the evidence and
8 weigh the credibility of the witnesses, the findings of fact of
the trial court will not be disturbed unless they are manifestly
erroneous. People v. Anthony, 198 Ill. 2d 194, 761 N.E.2d 1188
(2001). However, the circuit court's ultimate determination of
whether the evidence should be suppressed is subject to de novo
review. See People v. Gipson, 203 Ill. 2d 298, 786 N.E.2d 540
(2003).
The fourth amendment of the United States Constitution
guarantees the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures." U.S. Const., amend. IV. Likewise,
article I, section 6, of the Illinois Constitution provides
similar protections. Ill. Const. 1970, art. I, §6.
In Cosby, the supreme court emphasized that, once a traffic
stop has come to an end, an officer's subsequent request to
search the vehicle raises the question of whether a new seizure
has occurred for fourth amendment purposes. People v. Cosby, 231
Ill. 2d 262 (2008). The analysis applicable to this type of
situation is found in United States v. Mendenhall, 446 U.S. 544,
64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee,
186 Ill. 2d 501, 713 N.E.2d 556 (1999).
In Mendenhall, the Supreme Court held that a seizure occurs
when an individual's movement is restrained by physical force or
a show of authority. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497,
100 S. Ct. 1870. Furthermore, the Court held:
?[A]person has been 'seized' within the meaning of the
9 Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable
person would have believed that he was not free to
leave. Examples of circumstances that might indicate a
seizure, even where the person did not attempt to
leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the
use of language or tone of voice indicating that
compliance with the officer's request might be
compelled." Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d
at 509, 100 S. Ct. at 1877.
The Mendenhall factors do not constitute an exhaustive list; a
seizure may be based on other coercive police conduct similar to
these factors. People v. Cosby, 231 Ill. 2d 262 (2008).
In Brownlee, our supreme court followed these principles and
emphasized that an individual may not be lawfully seized absent
reasonable, objective grounds supporting the seizure. Brownlee,
186 Ill. 2d 501, 713 N.E.2d 556. In Brownlee, two officers flanked the front doors of a vehicle after a traffic stop ended,
said nothing for approximately two minutes, then requested
consent to search the vehicle despite having no probable cause or
reasonable suspicion of criminal activity to detain the vehicle's
occupants. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. In such a
situation, our supreme court found that a reasonable individual
in the occupants' situation would not feel free to leave and held
10 that the officers' show of authority constituted an illegal
seizure. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.
In this case, there is no question with regard to the
validity of the initial traffic stop or Hampton's search of the
vehicle's interior. The question we must address is whether
Hampton's request for consent to search the trunk constituted a
new seizure of the defendant. See People v. Cosby, 231 Ill. 2d
262 (2008).
At the time Hampton requested consent to search the trunk,
the defendant and James were still standing at the front and rear
of the vehicle, respectively, pursuant to Hampton's earlier
directive. Despite having found nothing illegal in the vehicle's
interior, Hampton requested consent from James and the defendant
to search the trunk. It is reasonable for one in the position of
the defendant and James to conclude that: (1) had the defendant
and James ignored Hampton's request and made efforts to leave the
scene, Hampton would not have simply allowed them to leave; and
(2) given the ongoing directive to stand at opposite ends of the
vehicle, compliance with the request to search the trunk was compelled. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100
S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. Under
these circumstances, we find that a reasonable person in the
defendant's position would not feel free to leave at the time
Hampton made his request. Thus, the defendant and James were
subjected to a seizure. See Brownlee, 186 Ill. 2d 501, 713
N.E.2d 556.
11 As previously noted, Hampton, who testified that he was
suspicious of the strong fragrance emanating from the vehicle,
did not find any contraband in the vehicle's interior. The only
item of some note he found was a bottle containing a fragrant
liquid. However, the presence of a strong fragrance, without
more, is insufficient to establish probable cause or a
reasonable, articulable suspicion of criminal conduct. See
Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. We also note that
Hampton knew James was on mandatory supervised release. However,
Hampton did not know why James had been incarcerated. The
knowledge of James' parole status, coupled with the strong
fragrance, does not constitute probable cause or a reasonable,
articulable suspicion of criminal conduct. Thus, at the time he
requested consent to search the trunk, Hampton lacked reasonable,
objective grounds to justify the continued detention of the
defendant and James. See Brownlee, 186 Ill. 2d 501, 713 N.E.2d
556. Without such grounds, Hampton's seizure of the defendant
and James was unlawful. See Brownlee, 186 Ill. 2d 501, 713
N.E.2d 556. An illegal seizure may taint a subsequent consent to search.
People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999)
(citing Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441,
83 S. Ct. 407 (1963)). Here, the defendant and James were
illegally detained at the time they gave consent to the search.
The consent and the resulting search were both tainted, and the
fruits thereof should have been suppressed. Brownlee, 186 Ill.
12 2d 501, 713 N.E.2d 556 (citing Wong Sun, 371 U.S. 471, 9 L. Ed.
2d 441, 83 S. Ct. 407).
Our decision on the first issue obviates the need to address
the defendant's monetary credit argument.
The judgment of the circuit court of Henry County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
O’BRIEN, P.J., concurs.
CARTER, J., dissenting:
I respectfully dissent from the majority’s conclusion in the
present case. It is my opinion, based on our supreme court’s
ruling in People v. Cosby, No. 100681 (September 18, 2008), that
the majority’s position can no longer be maintained. In Cosby, a
case with facts nearly identical to that of the present case, our
supreme court found that a new seizure of the defendant did not
occur and that the consent that the defendant gave for a search
of the vehicle was valid. Cosby, slip op. at 17. The same
conclusion is mandated in the present case.
At the hearing on the motion to suppress in the present case, officer Hampton testified that after he received the
information regarding defendant, the passenger (James), and the
vehicle, he gave defendant back his identification card and told
defendant that he was free to leave. Hampton specifically
testified that he was the only officer at the location of the
traffic stop and that before he asked for consent to search the
trunk of the vehicle, he did not draw his weapon, he did not
13 handcuff defendant or James, and he did not tell defendant or
James that they could not leave. Moreover, no evidence was
presented to suggest that Hampton’s tone of voice or language was
such as to indicate that compliance with his request was
required. Contrary to the analysis set forth in Cosby, the
majority’s analysis in the present case places no significance on
the complete absence of any of the Mendenhall factors in
defendant’s encounter with officer Hampton. Thus, I would
respectfully disagree that under the circumstances of this case,
a reasonable person in defendant’s position would not feel free
to leave, given the absence of the Mendenhall factors. That
Hampton did not find anything in the passenger area of the
vehicle does not somehow taint Hampton’s request to search the
trunk of the vehicle. Such a conclusion would essentially return
us to the approach set forth in People v. Gonzalez, 204 Ill. 2d
220, 789 N.E.2d 260 (2003), an approach which our supreme court
has clearly rejected. See Cosby, slip op. at 10. Given our
supreme court’s analysis in Cosby and its previous analysis in
People v. Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006), it is inappropriate for this court to speculate on what would have
happened if defendant and James had either ignored the officer’s
request to search or had refused it and then to use that
rationale to support a finding that compliance with the request
to search was compelled.
In addition, in ruling on the motion to suppress, at least
as to the issue of whether consent was given, the trial judge
14 found Hampton’s testimony to be more credible than that of
defendant or James. It is clear from the trial judge’s written
comments in the order denying the motion to suppress and his oral
comments at the hearing on defendant’s motion to reconsider that
the credibility of the witnesses played at least some part in the
trial judge’s ultimate conclusion. The majority’s ruling in the
present case makes no mention of the trial judge’s determination
of credibility.
For the reasons stated, I respectfully dissent.