No. 5-95-0425
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jackson County.
)
v. ) No. 94-CF-406
LARRY THOMPSON and MARY THOMPSON, ) Honorable
) David W. Watt, Jr.,
Defendants-Appellees. ) Judge, presiding.
_________________________________________________________________
JUSTICE KUEHN delivered the opinion of the court:
This is a case where a faulty brake light provided a pretext
to stop defendants' van. The defective light cloaked the stop's
real purpose. The police wanted to confirm uncorroborated
information from an anonymous telephone call.
Patrol officers searched for defendants' van after a radio
dispatch from headquarters. The dispatch conveyed information
received from an unidentified caller. The officers were told that
defendants were headed to Carbondale from Carterville with alcohol
and guns in their van. Officers located and followed the van
because of the dispatched information.
The van was initially discovered on a heading that contradict-
ed the caller's predicted route of travel. In addition, the caller
had not clearly informed of criminal conduct. The manner in which
the alcohol and guns were being transported was not spelled out.
The Carbondale police possessed uncorroborated and partially
discredited information about defendants. The reliability of the
information could be measured only by stopping the defendants,
searching the van, and finding alcohol and guns. The police
followed the van because of their desire to conduct such a search.
They were aware, however, of the legal value of the information
they possessed. Consequently, they did not stop the defendants
until they detected a traffic violation. They waited for a valid
excuse to stop the van.
The police effected a traffic stop for driving with a
defective right rear brake light. The stop was not motivated by a
desire to enforce the rules of the road. It was motivated by the
anonymous tip. The police wanted to check the van for evidence of
more serious crimes. The police used the faulty brake light as a
pretense to put themselves in a position to see if defendants were
illegally transporting alcohol and guns.
The traffic stop matured into a series of nonconsensual
searches. As a result of those searches, police found and seized
two pistols and a bag of marijuana. Defendants were charged with
drug and weapons violations. The trial court suppressed the
contraband based on the pretextual nature of the stop. The State
appeals.
We must first decide whether the fourth amendment prohibits
pretextual traffic stops. In People v. Guerrieri, 194 Ill. App. 3d
497, 551 N.E.2d 767 (1990), appeal denied, 132 Ill. 2d 549, 555
N.E.2d 380 (1990), this court defined the standard for testing the
legitimacy of a traffic stop motivated by reasons other than
enforcement of the Illinois Vehicle Code. We stated:
"[T]he proper inquiry is whether a reasonable officer
would have made the seizure in the absence of an illegit-
imate motive." (Emphasis added.) Guerrieri, 194 Ill.
App. 3d at 502, 551 N.E.2d at 770, citing United States
v. Smith, 799 F.2d 704, 708 (11th Cir. 1986).
This standard for testing the constitutional reasonableness of
traffic stops is no longer viable. It has been recently repudiat-
ed by the Supreme Court. Whren v. United States, 517 U.S. ___, 135
L. Ed. 2d 89, 116 S. Ct. 1769 (1996).
In a unanimous decision, the United States Supreme Court
silenced the argument that traffic offenders may challenge probable
cause stops generated by hidden reasons unrelated to enforcing the
rules of the road. Whren, 517 U.S. at ___, 135 L. Ed. 2d at 101,
116 S. Ct. at 1777. Ulterior motives do not invalidate police
conduct that is justifiable on the basis of probable cause to
believe that a violation of the law has occurred. Whren, 517 U.S.
at ___, 135 L. Ed. 2d at 98, 116 S. Ct. at 1774. The constitution-
al reasonableness of a traffic stop does not depend on the actual
motivations of the police officers involved. Whren, 517 U.S. at
___, 135 L. Ed. 2d at 98, 116 S. Ct. at 1774.
The defendants operated a van without a working brake light.
When this defect was noticed, the police possessed probable cause
to believe a traffic law of this state was being violated. Even
though the traffic offense masked other reasons for the stop
unsupported by probable cause, ulterior motives cannot make
otherwise lawful conduct illegal. The pretextual nature of the
stop did not invalidate it. The police had probable cause for the
stop. The inquiry ends there.
The trial court's order of suppression rested upon our view of
fourth amendment protection in a pretextual traffic stop setting.
Our view was wrong. The pretextual nature of the stop was an
unsound reason upon which to bar the use of evidence. Clearly, the
stop shrouded a desire to search. It was, in truth, no more than
a means to reach such an end. Nevertheless, the stop was based on
probable cause and, therefore, enjoyed constitutional footing.
Conduct that conforms with the Constitution, regardless of the
motivation, cannot taint the evidence produced. Only conduct that
offends the Constitution need be deterred by suppression of its
yield.
The trial court found that but for the anonymous tip,
unsupported by probable cause, the stop would not have occurred.
It found that the stop was a mere pretext to conduct an exploratory
search. The defendants were illegally stopped under the standard
set forth in Guerrieri. This illegality formed the basis of the
suppression order. Therefore, the trial court did not have to
focus on reasons tendered to support how and why the traffic stop
evolved into a series of searches.
The validity of a traffic stop does not automatically afford
a reasonable basis to fulfill an underlying ambition to conduct a
search. People v. Day, 202 Ill. App. 3d 536, 541, 560 N.E.2d 482,
485-86 (1990). Our determination that the initial stop was valid
but pretextual does not resolve the legitimacy of the challenged
search. Rather, it requires our examination of the record to
determine the reasonableness of actions taken after the traffic
stop.
The State argues that circumstances after the stop warranted
a protective search. The protective search, if valid, produced
evidence that provided probable cause to arrest. The arrest,
supported by probable cause, allowed incidental search of the van.
Although we address this argument in anticipation of its submission
to the trial court on remand, we decline the invitation to declare
the search valid. Any determination on the legality of the search,
on the record presented, would require us to decide issues of
credibility.
The hearing on the motion to suppress involved a significant
amount of undisputed testimony. The focal point of the search,
however, is marked by a sharp contrast in the evidence. The
salient circumstances tendered to justify the search diverge in
unresolved conflict between the testimony of defendant Mary
Thompson and Sergeant Dan Stearns of the Carbondale Police
Department. The facts and circumstances of the search are
presented to us as follows.
In the early afternoon of Sunday, August 28, 1994, the
Thompson van, with Larry, Mary, and their 10-year-old son aboard,
traveled a path to the Carbondale AutoZone store. The Thompsons
wanted to buy a light bulb for their van. The Carbondale police
warned the defendants the day before that the van had a defective
right rear brake light. The warning was accompanied by a signifi-
cant delay while a German shepherd and Carbondale officers
conducted a search of their van.
Sergeant Dan Stearns (Stearns) conducted a watch meeting with
patrolmen on Sunday morning. He told the watch of "rumors" about
the Thompsons. He warned patrolmen that the Thompson van might
harbor drugs and guns. At approximately noon, via dispatch,
Stearns learned of an anonymous call to the department. According
to Stearns, the dispatch reported the transport of alcohol and guns
in the Thompson van. Another officer at the scene, patrolman
Wilmore, contradicted Stearns' version of the dispatch. Patrolman
Wilmore claimed the dispatch reported transport of drugs and guns.
Stearns spotted the van shortly after receiving the radio
dispatch. He followed it to the AutoZone parking lot. Larry
Thompson exited the van and started to enter the store. Before he
could enter, Stearns stopped him. Stearns again advised that the
van had an inoperable brake light. Then he attended to the real
purpose for the confrontation.
Standing on the parking lot, Stearns related the nature of the
anonymous call and told Larry that the van needed to be searched.
Larry immediately disavowed the truth of the caller's claim and
added that he never drank alcoholic beverages. Stearns responded
by conducting a search of Larry's person. Larry had no weapons on
him. He was allowed to enter the store. Stearns was in close
proximity to Larry throughout this encounter. Stearns was never
asked whether he detected any odor of alcohol.
During the encounter on the parking lot, two more Carbondale
squad cars arrived in response to Stearns' summons for backup. The
squad cars encircled the van.
After Stearns allowed Larry to leave, he did not return to his
squad car. He walked around the van to Mary Thompson, who was
seated in the front passenger's seat. Stearns explained that he
did not return to other duties because of the information he
possessed. He returned to the van and its passenger to "follow up"
on the anonymous tip.
Only two of the other three officers at the scene testified at
the hearing. Patrolman Wilmore testified that the radio dispatch
warned that defendants' van potentially harbored drugs and guns.
Patrolman Baxter testified that Stearns had alerted the watch to
"rumors" about the van. Both officers testified that when they
arrived at the scene of the parked van, they knew that other
members of their department had searched it less than 24 hours
earlier with negative results.
The crucial encounter between Mary Thompson and Sergeant
Stearns is in dispute. The evidence consists of two decidedly
different versions of the same event.
According to Sergeant Stearns, he left the area of his
conversation with Larry Thompson to follow up on the anonymous tip.
He approached Mary Thompson, apprised her of the purported
information, and told her he needed to search the van. As he told
her of his need to search, he saw Mary stuffing something into a
duffel bag between her legs. He saw on the console two Hardee's
cups containing an "amber colored" liquid. He also saw the blade
of a machete knife under the duffel bag.
Stearns could not recall whether he ordered Mary out of the
van or whether she exited on her own. In either event, Stearns did
not use physical force to remove her from the van. Stearns advised
Mary as she was exiting the van that he needed to search her bag.
Mary had the bag on her arm and was still trying to stuff something
into it. Stearns grabbed the bag, Mary held on, and a struggle
ensued. Patrolman Baxter then grabbed Mary, which enabled Stearns
to remove the bag from her arm. Stearns searched the bag and found
a gun and marijuana. Mary was then arrested.
According to Mary Thompson, two large plastic cups labeled
Hardee's were housed in the van's console between the bucket seats.
The cups contained iced tea. The machete knife was on the
floorboard of the van where it was placed the day before. The
Carbondale police had stopped the Thompsons the day before for
operating the van on a faulty brake light. Assisted by a German
shepherd, they searched the entire van, seized the knife, but
returned it in an unsheathed condition before allowing them to
leave.
Mary remained in the van with the Thompsons' 10-year-old son
while Larry left to enter the store. She saw and heard Stearns'
encounter with her husband. When her husband entered the store,
Stearns approached her side of the van and opened the door. She
was told that the van needed to be searched. Stearns asked for
consent to search, which she refused. Stearns then grabbed her arm
and pulled her out of the van. He pulled the duffel bag off of her
arm and searched it. Thereafter, Stearns had patrolman Edwards
handcuff her and take her to his squad car. Mary did not attempt
to stuff anything into her bag.
Patrolman Wilmore was outside his squad car, standing near the
rear of the van during the encounter between Dan Stearns and Mary
Thompson. He saw Mary pushing Stearns away. He saw her resisting
Stearns' efforts to search. Wilmore did not see Mary stuffing
anything into the bag.
According to Stearns, patrolman Baxter assisted in retrieving
the bag by grabbing Mary Thompson. Patrolman Baxter was obviously
close at hand to render such assistance. Indeed, patrolman Baxter
saw Mary in the van before she exited. He did not, however, see
any furtive movements. He also heard conversation between her and
Stearns. However, he was not asked to convey any of the particu-
lars of the conversation. Additionally, he was not asked how Mary
exited the van.
According to Mary Thompson, patrolman Edwards handcuffed her
after the bag was searched. Patrolman Edwards did not testify.
The Thompsons' son did not testify. Both were potentially in
position to observe the disputed events.
The State's argument assumes the truth of Stearn's testimony.
It ignores the testimony of patrolman Wilmore that the dispatch
tracked the rumors discussed earlier that day at the watch meeting.
It assumes that an anonymous caller tipped off the transport of
alcohol in the van, rather than drugs. Based on Stearns' testimo-
ny, the State tenders the following argument. Stearns' approach of
Mary Thompson allowed him to corroborate the anonymous tip by
observation of the iced tea. The iced tea's amber color led him to
suspect that it was beer. Thus, observation of the iced tea gave
Stearns reason to credit the caller's prediction that alcohol could
be found in the van. If the prediction about alcohol was true, the
prediction about guns from the same source could be true as well.
The State argues that an articulable suspicion formed. This
suspicion, coupled with Mary's furtive conduct toward a duffel bag
that rested atop a machete knife, justified a protective search of
the bag. The State concludes that Stearns reasonably believed,
based on "specific and articulable facts which, taken together with
rational inferences from those facts," that Mary Thompson posed a
danger to him. See Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d
889, 906, 88 S. Ct. 1868, 1880 (1968).
In addition to the testimony of patrolman Wilmore, the State's
argument ignores the possibility that Stearns opened the door,
announced a need to search the van, and then asked permission to do
so. It ignores the possibility that, having failed to obtain
consent, Stearns pulled Mary from the van and searched her purse,
without any furtive conduct on her part. To accept the State's
argument, we are required to usurp a function of the trial court to
which we routinely defer. Therefore, it is appropriate to remand
and allow the trial court to determine what actually happened.
Because this legal issue was not the focus of the original hearing,
the trial court should reopen the evidence to afford both parties
an opportunity to present further testimony.
We are mindful of a finding in the original suppression order
that touched on the absence of testimony justifying a reasonable
belief that the officers were in danger. Stearns did not state
that his observations and responses were tied to safety consider-
ations. Indeed, on several occasions he testified that his actions
after the stop were motivated by a desire to confirm the anonymous
tip rather than by a need to conduct a protective search.
Nevertheless, if his testimony is accepted, it gives rise to an
inference from which the State may legitimately argue that a
protective search was warranted. If we are reading the trial
court's view too narrowly, if its finding is based upon a broader
view of the circumstances and testimony as a whole, the trial court
should state its bases for rejecting the State's argument. It
should enunciate clearly why it finds that Sergeant Stearns lacked
a reasonable belief that his safety was in peril.
The standard to be applied is well established. The Constitu-
tion permits police to take certain precautions for their own
protection. It tolerates limited intrusions on personal security
to protect officer safety. Terry, 392 U.S. at 21-22, 20 L. Ed. 2d
at 906-07, 88 S. Ct. at 1880. If an officer reasonably believes
that circumstances after a traffic stop pose a danger, the law
allows a limited right to search in the absence of probable cause.
Michigan v. Long, 463 U.S. 1032, 1049, 77 L. Ed. 2d 1201, 1220, 103
S. Ct. 3469, 3481 (1983). "In evaluating the validity of an
officer's *** protective conduct under Terry, the `touchstone ***
is always "the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal securi-
ty."'" (Emphasis added.) Long, 463 U.S. at 1051, 77 L. Ed. 2d at
1221, 103 S. Ct. at 3481-82, quoting Pennsylvania v. Mimms, 434
U.S. 106, 108-09, 54 L. Ed. 2d 331, 335, 98 S. Ct. 330, 332 (1977),
quoting Terry, 392 U.S. at 19, 20 L. Ed. 2d at 904, 88 S. Ct. at
1878-79. Reasonableness requires analysis of all the circumstances
to arrive at a proper balance between public interest and personal
privacy. Mimms, 434 U.S. at 109, 54 L. Ed. 2d at 336, 98 S. Ct. at
332, citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45
L. Ed. 2d 607, 614-15, 95 S. Ct. 2574, 2579 (1975). Reasonableness
allows leeway for officers to act on less than probable cause when
specific and articulable facts raise safety concerns. Reasonable-
ness does not, however, surrender personal security to arbitrary
interference by police officers. Mimms, 434 U.S. at 109, 54 L. Ed.
2d at 336, 98 S. Ct. at 332, citing Brignoni-Ponce, 422 U.S. at
878, 45 L. Ed. 2d at 614-15, 95 S. Ct. at 2579.
This case presents a number of exceptional circumstances,
uncommon to other cases where traffic stops evolved into reasonable
protective searches. We emphasize that a proper analysis of a
protective search necessitates a Brignoni-Ponce assessment of the
"reasonableness in all the circumstances" involved.
One circumstance sets this case apart from other cases that
have validated protective searches made in the course of traffic
stops. This was a pretextual stop. We know that the officers
stopped the van motivated by a desire to search it. The officers
recognized that their information did not afford a reasonable basis
to arrest or search. They therefore refrained from stopping the
van until they detected a traffic offense. Thereafter, their
actions were calculated to develop a legal reason to support a
search.
The officers' subjective intent in a pretextual setting cannot
make otherwise lawful conduct illegal. It cannot invalidate the
stop. It is not, however, totally irrelevant to questions that
accompany a pretextual stop. A pretextual stop, by definition,
harbors an underlying ambition to exceed its original scope. Once
a traffic stop's pretextual nature is established, as it was in
this case, we know that the true objective is to find a legal
excuse to accomplish a warrantless search. This goal exposes to
careful scrutiny disputes over ensuing events.
The Carbondale police might have executed the pretextual stop
under circumstances more favorable to the argument that officer
safety justified the search. The general conditions surrounding
the stop do not favor the use of safety concerns as a justification
for the officers' desired agenda. In Michigan v. Long, relied upon
by the State in support of its position, the Supreme Court analyzed
a protective search accompanying a traffic stop. The Michigan
officers acted upon observation of a knife inside Long's vehicle.
In concluding that the protective search was justified, the Court
noted the following circumstances:
"The hour was late and the area rural. Long was driving
his automobile at excessive speed, and his car swerved
into a ditch. The officers had to repeat their questions
to Long, who appeared to be `under the influence' of some
intoxicant. Long was not frisked until the officers
observed that there was a large knife in the interior of
the car into which Long was about to reenter." Long, 463
U.S. at 1050, 77 L. Ed. 2d at 1220, 103 S. Ct. at 3481.
The Thompsons were stopped on the parking lot of an AutoZone
store in Carbondale. It was a Sunday afternoon, and Mary Thompson
was seated inside the van with a 10-year-old member of the Thompson
family. The stop was not generated in response to egregious
conduct. It was generated to find some reason to act upon an
unreliable report and search the van. It was the second stop by
the same department for the same offense in less than 24 hours.
The first stop was accompanied by a complete search that proved the
van to be free of weapons, save the machete knife which was
returned. The officers knew of the previous search of the van.
The officer who conducted the challenged search repeatedly
announced a "need to search," before any observations giving rise
to safety concerns could be claimed. This same officer also
conducted an unwarranted search of Larry Thompson prior to any
observations from which safety concerns could be formed.
There is one additional circumstance atypical to most
protective searches made in the course of traffic stops. The
officer released the traffic offender. He allowed the offender to
leave the scene of the stop. He then focused on the passenger
seated in the van, not because of any violation of the law or
safety concern, but because of his unreliable anonymous information
about the van. Stearns' own testimony assigns his information
about the van as the sole motivation for approaching Mary Thompson.
Stearns' testimony also belies a reaction to the observations he
made on approach to the van. He did not immediately remove Mary
Thompson from the van and frisk her. Rather, he explained the
telephone call and expressed a need to search the van because of
it.
Although these circumstances all enter into analysis of the
reasonableness of the search, they do not necessarily outweigh one
circumstance focal to the question. Stearns may not have been
concerned over safety in the initial phase of his encounter with
Mary Thompson. In fact, there was very little upon which a concern
could be based. A woman rummaging through her handbag while seated
in a vehicle awaiting her husband is not necessarily an activity
expected to strike fear in the heart of a police sergeant surround-
ed by three backup officers. This is particularly true on a Sunday
afternoon at the AutoZone store with her 10-year-old child seated
behind her.
However, Stearns' claim that Mary Thompson continued to reach
into the bag as she exited the van is a circumstance capable of
causing legitimate safety concerns. Such an act, coupled with her
demeanor over another search of the van, could rightfully target
the handbag for a precautionary search. The Constitution would not
restrain Stearns from preempting her potential retrieval of a
weapon from the bag under such circumstance.
Stearns may well have developed a reasonable belief that Mary
Thompson posed a threat to officer safety because of her persistent
access to the contents of her handbag. This belief may well have
been justified despite other circumstances that mitigated against
it. Mary Thompson claims that she did not engage in such activity.
In fact, she claims that Sergeant Stearns asked for her permission
to search and pulled her from the van when he did not receive it.
Obviously, this factual dispute needs to be resolved.
Ultimately, the question turns on what Sergeant Stearns
reasonably believed. The reasonableness of his belief must be
weighed in light of all of the circumstances presented. If he
reasonably believed that he was in potential peril, the law allows
a limited protective search to assure against it. Such a determi-
nation, however, necessitates resolution of certain facts that were
left unsettled after the original hearing.
Accordingly, we reverse and remand this case to the trial
court for further proceedings consistent with this opinion.
Reversed and remanded.
GOLDENHERSH, J. concurs.
JUSTICE RARICK, dissenting:
While I concur with the majority's ultimate resolution
regarding the pretextual traffic stop, I cannot agree with the
conclusion questioning the probable cause to search Mary Thompson's
"handbag." When the officer approached the vehicle to talk to the
driver, the officer spotted in plain view two open cups of amber-
colored liquid between the two front seats and an unsheathed
machete lying on the floor of the passenger side. The female
passenger appeared to be stuffing something into a duffle bag which
was sitting on top of the machete. At this point the officer
justifiably believed that there was support for the anonymous tip
and that the female was engaged in furtive movement and suspicious
conduct. Such known facts justified a search of both Mary Thompson
and the duffle bag she refused to relinquish. See Michigan v.
Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983);
People v. Day, 202 Ill. App. 3d 536, 560 N.E.2d 482 (1990). I
therefore see no reason to remand this cause for further proceed-
ings on the issue of the search of Mary Thompson and her "handbag."
ATTACH A FRONT SHEET TO EACH CASE
___________________________________________________________________________
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
Plaintiff-Appellant, ) Jackson County.
v. ) No. 94-CF-406
LARRY THOMPSON and MARY THOMPSON, ) Honorable
Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: September 10, 1996
___________________________________________________________________________
Justices: Honorable Clyde L. Kuehn, J.
Honorable Richard P. Goldenhersh, J.,
Concurs
Honorable Philip J. Rarick, J.,
Dissenting
___________________________________________________________________________
Attorneys Michael Wepsiec, State's Attorney, Jackson County
for Courthouse, Murphysboro, IL 62966;
Appellant
Norbert J. Goetten, Director, Robert J. Biderman, Deputy
Director, Timothy J. Londrigan, Staff Attorney, State's
Attorneys Appellate Prosecutor, 725 South Second Street,
Springfield, IL 62704
___________________________________________________________________________
Attorneys Daniel M. Kirwan, Deputy Defender, Lawrence J. O'Neill,
for Assistant Defender, Office of the State Appellate Defender,
Appellee Fifth Judicial District, Route 15 East, P.O. Box 2430, Mt.
Vernon, IL 62864
___________________________________________________________________________