People v. Terry

Opinion

NO. 4-02-0864 Filed 2/26/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County CHARLES SANFORD TERRY, ) No. 02CF956 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. _________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

On the night of May 20, 2002, defendant, Charles

Sanford Terry, was the front-seat passenger in a pickup truck

pulled over by police. A search of defendant at the scene led to

immediate arrest and a charge for possession of a controlled

substance with intent to deliver (1 gram or more but less than 15

grams of a substance containing cocaine) (720 ILCS 570/401(c)(2)

(West 2002)). After an August 2002 bench trial, the trial court

convicted defendant of the charge. In September 2002, the court

sentenced him to six years in prison.

Defendant appeals, arguing the trial court erred by

denying his motion to suppress the evidence against him because

(1) police officers (a) exceeded the lawful scope of the traffic

stop by asking him if he had any illegal weapons or drugs and (b)

unconstitutionally extended his detention beyond the time neces-

sary to conduct the traffic stop; and (2) defendant's assuming a typical search position and saying "You have a job to do" did not

constitute consent to search him. We disagree with each conten-

tion and affirm.

I. BACKGROUND

At the August 2002 hearing on defendant's motion to

suppress, Urbana police officer Jay Loschen testified that

shortly before 9:30 p.m. on May 20, 2002, he observed a pickup

truck in the parking lot of an apartment complex at 808 N.

Lincoln in Urbana. In the past, Loschen had made drug arrests at

or near 808 N. Lincoln. Loschen parked within sight of the truck

and waited for it to leave the parking lot. When he first

noticed the truck, its only occupant was the driver, later

identified as James Tinnin.

When the truck left the parking lot, defendant was a

front-seat passenger. Loschen followed the truck for a half

block before pulling it over because the rear registration light

was out. Loschen asked Tinnin for his driver's license and proof

of insurance. Loschen noticed defendant was not wearing a seat

belt and asked defendant for his name and date of birth. Loschen

did not see any weapons, drugs, or drug paraphernalia in plain

view inside the truck. As Loschen walked back to his squad car

to run a computer check on Tinnin and defendant, he called for

backup. From the squad car, Loschen saw defendant "ma[k]e

several movements in the truck as if he was hiding something."

- 2 - Specifically, Loschen described defendant as "just bouncing

around" with "his hands down by his sides."

Urbana police officer Richard Surles arrived within one

minute of Loschen's obtaining Tinnin's license. After the

computer check was completed, Loschen and Surles returned to the

truck, where Loschen told Tinnin his license was valid and handed

it back to him. Surles stood on the passenger side of the truck.

Loschen then asked Tinnin if he could speak with him outside the

truck. Tinnin agreed and got out of the truck. Loschen told

Tinnin the police had several problems with drug sales at 808 N.

Lincoln and asked Tinnin for consent to search his truck. Tinnin

consented.

During Loschen's conversation with Tinnin, defendant

got out of the truck and conversed with Surles. When Loschen

finished speaking with Tinnin, Surles was getting ready to place

handcuffs on defendant. Surles handed Loschen a small plastic

bag containing an off-white, chalky substance he had removed from

defendant's jacket pocket. The substance later tested positive

for cocaine. Loschen and Surles conducted another search of

defendant and Loschen found a small plastic bag containing a

white, powdery substance, which also tested positive for cocaine.

Loschen acknowledged he suspected drugs would be present when he

pulled the truck over because it had been parked at 808 N.

Lincoln.

- 3 - Surles testified when he arrived at the scene,

Loschen's squad car was parked behind the truck and Loschen told

Surles he was going to try to get consent to search the truck.

Both officers walked over to the truck and Surles stood approxi-

mately five feet to the rear of the passenger-side door while

Loschen spoke with Tinnin. Defendant then got out of the truck.

Surles did not ask defendant to get out of the truck or speak

with him at all before he got out of the truck. Defendant and

Surles exchanged a greeting. Surles then asked defendant if he

had any knives, guns, drugs, or needles. Defendant said he did

not. Surles then asked defendant if he could search him.

Defendant did not respond verbally. Instead, he put his hands on

the side of the truck bed and kicked his legs back into the

position in which one would be searched. Surles again asked

defendant if he could search him. Defendant said, "'You got to

go ahead and do what you got to do.'" Surles asked again if that

meant he could search defendant. Defendant replied, "'you have a

job to do'" and "'here[,] let me help you out.'" He then removed

some items from his jacket pocket and put them on the edge of the

truck, including a cellular phone, a lighter, and some medica-

tion. Defendant put his hands back on the truck and Surles began

to pat him down. Surles believed he had consent to search

defendant at that time based on defendant's statements, body

language, demeanor, and the fact he voluntarily removed items

- 4 - from his jacket.

In defendant's right jacket pocket, Surles found a

plastic bag containing a large piece of crack cocaine. Upon the

discovery, defendant said, "possession," and Surles handcuffed

him. After he was placed under arrest, Surles found a bag of

powdered cocaine in a "cargo pocket" of defendant's pants.

Surles acknowledged nothing about the traffic stop made

him fear for his safety beyond his ususal sense of caution.

Loschen did not tell Surles why he wanted to search the truck,

what his suspicions were, or what those suspicions were based

upon. Surles did not see any weapons, drugs, or paraphernalia in

plain view. Nothing about defendant caused Surles to have an

"elevated level of caution." His basis for asking defendant for

consent to be searched was because Loschen was asking for consent

to search the truck. It was not a weapons pat down. It was a

search. Surles did not know defendant before this incident.

Although the testimony of defendant's witnesses dif-

fered from that of Loschen and Surles, particularly regarding

defendant's interaction with Surles, the trial court found the

officers' testimony credible, and defendant does not challenge

the court's factual findings. We need not include a recitation

of defendant's evidence.

At the conclusion of the suppression hearing, the trial

court denied defendant's motion to suppress the evidence.

- 5 - Following an August 2002 bench trial, the court convicted defen-

dant of possession of a controlled substance with intent to

deliver (720 ILCS 570/401(c)(2) (West 2002)) and sentenced him to

six years in prison. This appeal followed.

On July 8, 2004, this court issued an order reversing

the trial court's judgment based on our conclusion the trial

court erred in denying defendant's motion to suppress. People v.

Terry, No. 4-02-0864 (July 8, 2004) (unpublished order under

Supreme Court Rule 23). On August 12, 2004 the State filed a

petition for leave to appeal with the Supreme Court of Illinois.

The supreme court issued a supervisory order on denial of the

petition for leave to appeal:

"In the exercise of this court's super-

visory authority, the Appellate Court, Fourth

District, is directed to vacate its judgment

in People v. Terry, No. 4-02-0864 (July 8,

2004). The appellate court is directed to

reconsider its judgment in light of Illinois

v. Caballes, 543 U.S. 405 [,160 L. Ed. 2d

842, 125 S. Ct. 834] (2005), and People v.

Caballes, 221 Ill. 2d 282 [,851 N.E.2d 26]

(2006) (opinion on remand)." People v.

Terry, 221 Ill. 2d 668, 853 N.E.2d 1230

(2006) (nonprecedential supervisory order on

- 6 - denial of leave to appeal).

Pursuant to the supreme court's supervisory order, we now recon-

sider this case in light of those two Caballes decisions.

II. DENIAL OF DEFENDANT'S MOTION TO SUPPRESS

Defendant argues the trial court erred by denying his

motion to suppress evidence because his fourth-amendment rights

were violated when Surles expanded the scope of the traffic stop

by asking defendant if he had any knives, guns, drugs, or nee-

dles. We disagree.

A. Standard of Review

Reviewing a trial court's ruling on a motion to sup-

press involves mixed questions of fact and law. People v.

Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). On

review, we give great deference to the trial court's factual

findings and will reverse those findings only if they are against

the manifest weight of the evidence. Gherna, 203 Ill. 2d at 175,

784 N.E.2d at 805. However, we review the trial court's legal

determination of whether suppression is warranted under those

facts de novo. Gherna, 203 Ill. 2d at 175, 784 N.E.2d at 805.

Defendant does not argue the trial court's factual determinations

are against the manifest weight of the evidence. Thus, we accept

those determinations and address de novo defendant's legal

challenge.

B. The Traffic Stop

- 7 - Defendant contends the trial court erred by denying his

motion to suppress evidence because Surles violated his constitu-

tional right against unreasonable searches and seizures (U.S.

Const., amend. IV; Ill. Const. 1970, art. I, §6) when he turned

the traffic stop into a drug investigation by asking defendant if

he had any knives, guns, drugs, or needles. We disagree.

In People v. Caballes, 207 Ill. 2d 504, 506, 802 N.E.2d

202, 203 (2003) (hereinafter Caballes I), the defendant was

lawfully stopped for speeding. The trooper had no reasonable

suspicion the defendant's car contained contraband. While the

trooper was writing the traffic ticket, a second trooper arrived

with a drug-detection dog. Caballes I, 207 Ill. 2d at 507, 802

N.E.2d at 203. Following a walk around, the dog alerted to the

trunk and marijuana was discovered. Caballes I, 207 Ill. 2d at

507, 802 N.E.2d at 203. The trial court denied the defendant's

motion to suppress and found the defendant guilty, and the

appellate court affirmed. Caballes I, 207 Ill. 2d at 508, 802

N.E.2d at 203.

On appeal, the Illinois Supreme Court found the State

failed to justify using the canine sniff. Caballes I, 207 Ill.

2d at 509, 802 N.E.2d at 204. The court noted the officers did

not detect an odor of marijuana or observe evidence suggesting

the presence of illegal drugs. Caballes I, 207 Ill. 2d at 509,

802 N.E.2d at 204. Even though the second trooper brought the

- 8 - dog on his own volition, the court found "the police impermiss-

ibly broadened the scope of the traffic stop in this case into a

drug investigation because there were no specific and articulable

facts to support the use of a canine sniff." Caballes I, 207

Ill. 2d at 509, 802 N.E.2d at 204.

On appeal to the United States Supreme Court, the issue

centered on whether the fourth amendment required reasonable,

articulable suspicion to justify using a drug-detection dog to

sniff the exterior of a vehicle during a legitimate traffic stop.

Caballes, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at

837 (hereinafter Caballes II). Finding the initial seizure

lawful, the Court noted a stop for the issuance of a traffic

violation could "become unlawful if it [were] prolonged beyond

the time reasonably required to complete that mission." Caballes

II, 543 U.S. at 407, 160 L. Ed. 2d at 846, 125 S. Ct. at 837.

The Court found the state-court proceedings indicated the stop

lasted less than 10 minutes and accepted the state court's

conclusion the length of the stop was justified by the traffic

violation "and the ordinary inquiries incident to such a stop."

Caballes II, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at

837.

The Supreme Court went on to state official conduct

does not constitute a search under the fourth amendment unless it

compromises a legitimate privacy interest. Caballes II, 543 U.S.

- 9 - at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. Because a

person's interest in possessing contraband cannot be deemed

legitimate, official conduct that merely reveals the possession

of contraband does not compromise a legitimate privacy interest.

Caballes II, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at

837. The Supreme Court concluded "the use of a well-trained

narcotics-detection dog--one that 'does not expose noncontraband

items that otherwise would remain hidden from public view,'

[citation]--during a lawful traffic stop, generally does not

implicate legitimate privacy interests." Caballes II, 543 U.S.

at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838.

Upon remand after the Supreme Court vacated Caballes I,

the Illinois Supreme Court found "the dog sniff of a vehicle does

not constitute an invasion of privacy." People v. Caballes, 221

Ill. 2d 282, 331, 851 N.E.2d 26, 55 (2006) (hereinafter Caballes

III). The supreme court adhered to the limited lockstep approach

and declined to hold the search-and-seizure clause of the Illi-

nois Constitution provided greater protection than the fourth

amendment. Caballes III, 221 Ill. 2d at 335-36, 851 N.E.2d at

57. The court concluded evidence obtained as a result of the dog

sniff was properly admitted at the defendant's trial and affirmed

his conviction. Caballes III, 221 Ill. 2d at 336, 851 N.E.2d at

57.

In People v. Gonzalez, 204 Ill. 2d 220, 235, 789 N.E.2d

- 10 - 260, 270 (2003), abrogated on other grounds by People v.

Luedemann, 222 Ill. 2d 530, 548, 857 N.E.2d 187, 199 (2006), the

Illinois Supreme Court provided an analysis for determining

whether police conduct during the course of a traffic stop

satisfies the scope requirement of Terry v. Ohio, 392 U.S. 1, 21-

22, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80 (1968).

That is, was the police officer's questioning of the defendant

related in scope to the circumstances that justified the stop.

There is a growing trend in the case law that concludes the scope

requirement adopted from Terry and enunciated in Gonzalez is no

longer good law. See People v. Driggers, 222 Ill. 2d 65, 72, 853

N.E.2d 414, 418 (2006) (police action that does not unreasonably

prolong a lawful traffic stop or independently trigger fourth-

amendment concerns is not prohibited merely because it changed

the character of the stop); People v. Starnes, 374 Ill. App. 3d

329, 334, 871 N.E.2d 815, 820 (2007) (Second District: decisions

after Caballes III have recognized the Gonzalez scope requirement

is no longer viable); People v. Roberson, 367 Ill. App. 3d 193,

201, 854 N.E.2d 317, 324 (2006) (Fourth District: applying the

logic of Caballes II, a warrant check on a passenger would only

change the fundamental nature of the stop if it caused the

seizure to last longer than required for such a traffic stop or

if it infringed upon the passenger's legitimate interest in

privacy); People v. Conner, 358 Ill. App. 3d 945, 961-62, 832

- 11 - N.E.2d 442, 456-57 (2005) (First District: citing Caballes II

and Muehler v. Mena, 544 U.S. 93, 101, 161 L. Ed. 2d 299, 309,

125 S. Ct. 1465, 1471 (2005)); see also People v. Starbuck, 358

Ill. App. 3d 234, 239, 831 N.E.2d 636, 641 (2005) (Third Dis-

trict) (Schmidt, J., specially concurring) (the United States

Supreme Court has made it "abundantly clear that it has rejected

the notion that questioning, including requests for consent to

search, must be related to the initial purpose for the police

contact" and to the extent Gonzalez and other decisions hold to

the contrary, they are no longer good law). In Starnes, 374 Ill.

App. 3d at 334, 871 N.E.2d at 820, the Second District noted the

Illinois Supreme Court in Caballes III

"acquiesced in the [United States] Supreme

Court's holding that, if a traffic stop is

proper, police action that does not unreason-

ably prolong the stop or independently trig-

ger the fourth amendment is permissible even

if it goes beyond the scope of the stop. The

court unmistakably, albeit not explicitly,

abandoned the scope requirement of the Gonza-

lez test."

Applying the logic of Caballes II and III, questioning

defendant passenger here changes the fundamental nature of the

traffic stop only if "(1) it causes the seizure to last longer

- 12 - than the time reasonably required for such a traffic stop or (2)

it infringes upon the passenger's legitimate interest in pri-

vacy." Roberson, 367 Ill. App. 3d at 201, 854 N.E.2d at 324. In

our initial decision in this case, we found "no evidence showed

that Surles' questioning of defendant unreasonably prolonged

defendant's detention." Terry, slip order at 10. We will not

revisit that conclusion.

On the issue of a legitimate privacy interest, Surles

asked defendant if he had any knives, guns, drugs, or needles on

him. In this case, this question is the equivalent of asking

defendant whether he possessed items of contraband. Posing the

question does not "'compromise any legitimate interest in pri-

vacy'" because "any interest in possessing contraband cannot be

deemed 'legitimate,' and thus, governmental conduct that only

reveals the possession of contraband 'compromises no legitimate

privacy interest.'" (Emphasis in original.) Caballes II, 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,

100-01, 104 S. Ct. 1652, 1661-62 (1984). Surles did not violate

defendant's privacy rights under the fourth amendment by asking

him whether he had any knives, guns, drugs, or needles.

C. Consent To Search

We also conclude defendant's conduct evinced his

consent to a search of his person. The fourth amendment guaran-

- 13 - tees "[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. Article I, section six, of

the Illinois Constitution also protects individuals from unrea-

sonable 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-amendment jurisprudence.

People v. Anthony, 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1192

(2001).

Generally, reasonableness in the fourth-amendment

context requires a warrant supported by probable cause. Katz v.

United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S.

Ct. 507, 514 (1967). However, a warrantless search does not

violate the fourth amendment if it is conducted pursuant to the

voluntary consent of the person whose person or property is

searched. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed.

2d 148, 156, 110 S. Ct. 2793, 2797 (1990), citing Schneckloth v.

Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct.

2041, 2043-44 (1973); see also People v. Smith, 214 Ill. 2d 338,

349, 827 N.E.2d 444, 451-52 (2005) (individual's voluntary

consent eliminates the need for probable cause and a warrant),

abrogated on other grounds by Luedemann, 222 Ill. 2d at 548, 857

N.E.2d at 199.

- 14 - A defendant's consent is invalid "unless it is volun-

tary, and, to be voluntary, consent must be given freely without

duress or coercion (either express or implied)." People v.

Green, 358 Ill. App. 3d 456, 462, 832 N.E.2d 465, 471 (2005).

"Consent must be received, not extracted 'by

explicit or implicit means, by implied threat

or covert force.' Schneckloth, 412 U.S. at

228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048.

'In examining all the surrounding circum-

stances to determine if in fact the consent

to search was coerced, account must be taken

of subtly coercive police questions, as well

as the possibly vulnerable subjective state

of the person who consents.' Schneckloth,

412 U.S. at 229, 36 L. Ed. 2d at 864, 93 S.

Ct. at 2049. The voluntariness of the con-

sent is a question of fact determined from

the totality of the circumstances, and the

State bears the burden of proving the consent

was truly voluntary." Anthony, 198 Ill. 2d

at 202, 761 N.E.2d at 1192.

In Anthony, 198 Ill. 2d at 197-98, 761 N.E.2d at 1190,

a police officer approached the defendant in an alley and, after

asking him what he was doing in the area and whether he had

- 15 - anything on him that could hurt the officer or his partner,

requested his consent to a search of his person. The defendant,

nervous and with hands shaking, gave no verbal consent but merely

"assumed the position" for a pat down by spreading his legs apart

and placing his hands on top of his head. Anthony, 198 Ill. 2d

at 198, 761 N.E.2d at 1190. The officer construed the defen-

dant's actions as "nonverbal consent," searched him, and found

cocaine. Anthony, 198 Ill. 2d at 198-99, 761 N.E.2d at 1190.

The supreme court found the State failed to prove the

defendant had voluntarily consented to the search. Anthony, 198

Ill. 2d at 203-04, 761 N.E.2d at 1193. The court stated, in

part, as follows:

"The defendant may convey consent to search

by nonverbal conduct [citations], but 'mere

acquiescence to apparent authority is not

necessarily consent' [citation]. ***

***

The State would have us draw an infer-

ence *** that the defendant intended to con-

sent, not acquiesce. An equally valid infer-

ence from the defendant's ambiguous gesture

is that he submitted and surrendered to what

he viewed as the intimidating presence of an

armed and uniformed police officer who had

- 16 - just asked a series of subtly and increas-

ingly accusatory questions." Anthony, 198

Ill. 2d at 202-03, 761 N.E.2d at 1192-93,

quoting People v. Kelly, 76 Ill. App. 3d 80,

87, 394 N.E.2d 739, 744 (1979).

In this case, defendant's actions constituted more than

simply "assuming the position". His verbal and nonverbal conduct

indicated his consent was voluntary. After Surles asked defen-

dant if he could search him, defendant placed his hands on the

truck and kicked his legs back and spread them in the search

position. This conduct could be an ambiguous gesture subject to

dual inferences. However, there was not a single, ambiguous act

here.

After defendant assumed the position against the truck,

Surles again asked if he could search him. Defendant responded,

"'You got to go ahead and do what you got to do.'" Surles sought

clarification by asking, "Does that mean I can search you[?]"

Defendant responded, "'You have a job to do.'" Thereafter,

defendant said, "'here[,] let me help you out.'" He then removed

items from his coat and placed them on the truck. Defendant

again put his hands back up on the truck. Believing he received

the consent he needed, Surles began searching defendant.

The record supports the conclusion defendant consented

to be searched and Officer Surles was objectively reasonable in

- 17 - believing defendant consented. This was not a situation where

the police extracted defendant's consent by explicit or implicit

means or with threats, intimidation, or force. No credible

evidence indicated Surles asked a series of accusatory questions

or used his authority to get defendant to acquiesce and give his

consent to search. Defendant's conduct was not merely a shrug,

as in People v. Raibley, 338 Ill. App. 3d 692, 700-02, 788 N.E.2d

1221, 1229-30 (2003), or an ambiguous assumption of the position,

as in Anthony. Instead, defendant's words and conduct evinced

his voluntary consent to search.

III. CONCLUSION

The traffic stop was lawful. The questioning of

defendant was constitutionally permissible. The defendant's

consent was voluntary. The trial court's denial of defendant's

motion to suppress was not against the manifest weight of the

evidence.

Accordingly, we affirm the trial court's judgment. As

part of our judgment, we grant the State its $50 statutory

assessment against defendant as costs of this appeal.

Affirmed.

APPLETON, P.J., and TURNER, J., concur.

- 18 -