People v. Bartelt

• Decision Date: 04 September 2008
• Docket Number: No. 4-07-0311.,4-07-0311.
• Citation: 894 N.E.2d 482
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Cheryl L. BARTELT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

894 N.E.2d 482

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Cheryl L. BARTELT, Defendant-Appellee.

No. 4-07-0311.

Appellate Court of Illinois, Fourth District.

September 4, 2008.

Justice KNECHT delivered the opinion of the court:

In July 2006, the State charged defendant, Cheryl L. Bartelt, with unlawful possession of methamphetamine (720 ILCS 646/60(b)(1) (West 2006)). In September 2006, defendant filed a motion to suppress evidence obtained during a traffic stop. In March 2007, the trial court granted defendant's motion. The State filed this interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (210 Ill.2d R. 604(a)(1)). On appeal, the State argues the trial court erred by granting defendant's motion to suppress the evidence. We reverse.

I. BACKGROUND

At the December 2006 hearing on the defendant's motion to suppress, Officer Mike Tyler testified he was employed with the Quincy police department for seven years. He also noted he was formally trained in proper procedures for search and seizure.

On July 29, 2006, Tyler observed a pickup truck parked on the sidewalk. He recognized the truck as belonging to defendant, whom he had heard used methamphetamines. He watched the truck for 1 1/2 hours from a one-block distance. At approximately 8:15 p.m., defendant and a man came out of an apartment building and put garbage bags in the bed of the truck. Defendant reentered the apartment, returned to the truck, got into the driver's seat, and pulled off the sidewalk onto the street. Tyler followed her vehicle a short distance to a gas station. As defendant pulled up to the gas station, Tyler turned on the lights of his police car.

Tyler approached the truck and told defendant her truck was sitting on the sidewalk for 1 1/2 hours, in violation of the Illinois Vehicle Code (625 ILCS 5/11-1303(a)(1)(b) (West 2006)). Tyler explained defendant's violation, got her insurance and driver's license information, and returned to his vehicle to run the driver's license through the LEADS system.

Officer Darin Kent arrived on the scene while Tyler was running the driver's license, and he asked Tyler to set up the truck for a canine sniff. Tyler ordered defendant to roll up the windows and turn the vents "on high" blowing out air. Tyler did not observe any illegal items in plain view. Kent then ran Max, his canine, around the truck. Max alerted on both doors. Tyler ordered defendant out of the vehicle and asked whether anything illegal was in the vehicle. Tyler sent defendant to the rear of the truck to talk to Kent.

Tyler testified Kent briefly searched both defendant and passenger. Tyler then watched defendant and the passenger while Kent searched the cab of the truck. Kent did not ask permission to search the vehicle because the dog had alerted to the vehicle. Kent found a pen casing in a wallet, a digital scale, and a burnt piece of tinfoil. More burnt tinfoil was found inside the garbage bags in the bed of the truck. Defendant was arrested. Officer Darla Pullins arrived and searched defendant and then drove her to police headquarters, where defendant was read her rights. Defendant asked for an attorney, and Tyler did not question her.

Tyler stated when he first noticed the truck parked on the sidewalk he did not know who was responsible for the vehicle violation. After he looked up the license plate, Tyler became interested in conducting a traffic stop and drug sniff and alerted Kent he was waiting for the driver. Tyler estimated Kent arrived within three minutes of the traffic stop.

Tyler testified when he ordered defendant to set up the car, he directed her to roll up all the windows and turn the vents on high blowing air. Tyler said when he goes through the set up he directs the driver put the car on auxiliary power and then says, "Can you go ahead [and] close all your windows and turn your blowers on high."

Tyler also testified the set-up procedure is one taught at the canine academy and Kent prefers officers do so to prepare for a dog sniff. This technique forces air out of a vehicle.

Officer Darin Kent testified he was employed as a Quincy police officer for 10 1/2 years and had been a canine handler for the street-crimes unit since 2002. His canine's name was Max, and Max was a full-service police canine trained in drug detection, tracking, article searches, and area searches. Kent initially took a 10-week training course, and he and Max recertified with an independent evaluator every six months. Kent had also been trained in advance techniques for canine SWAT and later became an instructor for new canine handlers through the Illinois State Police.

Immediately before a canine sniff, Kent stated he directed the driver to turn the engine off, turn the key to auxiliary, turn the blower on high, roll up the windows, and close the doors to force drug odors through the seams of the vehicles. Canines are trained to specifically sniff a vehicle's seams. Kent tells drivers they need to comply with the set up, but he does not threaten them into complying.

During the traffic stop in this case, Kent conducted the exterior sniff of the vehicle. Max alerted on both the driver and passenger sides. When Max alerted, he squared his body to the odor, breathed rapidly, put his paw out, and barked. Kent returned Max to the squad car and searched the vehicle. He found a pen casing with a burnt end and a powder substance on the inside, several burnt strips of tinfoil, and a digital scale.

Kent also said he was taught the set-up technique by the Illinois State Police and he in turn taught officers the same. Drivers are not given a warning before officers request the vehicle set up. Kent testified to avoid issues regarding a search before probable cause he would not reach his own hand into a vehicle to turn on the auxiliary power or blower.

The trial court then questioned Kent about how he would get consent to search a vehicle. Kent testified officers typically "finish a traffic stop, completely release them from the traffic stop, * * * [and] then ask if they have time to speak with us[,] at which time we will then ask for consent to search the vehicle." When they set up a vehicle for a dog sniff, the officer says, "[Y]ou need to roll your windows up and turn your vents on high." Kent does not present it as an option to the occupants of the vehicle.

Upon conclusion of arguments of counsel, the trial court granted the motion to suppress evidence, reasoning as follows:

"The officers had no probable cause to enter the vehicle before Max alerted. By requiring the defendant, without her consent, to close the doors and windows and turn the blower on high, the officers in effect moved and manipulated the air within the vehicle that would not otherwise have been subject to their plain view or smell. Max could not lawfully be where the officers could not lawfully be. The officers could not lawfully be in the vehicle, and therefore Max could not lawfully be in the vehicle. In order for the `plain view' or `plain smell' doctrines to be applicable, the officer, and in this case Max, had to be in a place where they could lawfully be before they could lawfully view or smell. The court recognizes that Max was still outside the defendant's truck when he alerted, but the analogy from [United States v.] Hutchinson [,471 F.Supp.2d 497, (M.D.Pa. 2007)], seems applicable and logical. In effect, Max was placed inside the vehicle by the officers. Applying Hutchinson logic, the court finds that the directing of the defendant to close the truck's windows and door and to turn on the blower on high turned the dog sniff into an unreasonable search under the fourth amendment."

II. ANALYSIS

This court will reverse a trial court's ruling on a motion to suppress where it involves credibility assessments or factual determinations only if it is against the manifest weight of the evidence. People v. Driggers, 222 Ill.2d 65, 70, 304 Ill.Dec. 625, 853 N.E.2d 414, 417 (2006). A reviewing court examines de novo the ultimate ruling granting or denying the motion to suppress. Driggers, 222 Ill.2d at 70, 304 Ill. Dec. 625, 853 N.E.2d at 417.

At the outset, we note the arguments on appeal are limited to the set-up technique employed by the police prior to the dog sniff and no other portion of the stop is at issue. The question is whether the police order to defendant to roll up her windows and turn the blower to high intruded upon a legitimate privacy interest and constituted a search under the fourth amendment.

The State argues the trial court's decision should be reversed because Tyler's orders to set up the vehicle did not change the nature of the sniff to an unlawful search because (1) Max remained outside the vehicle and (2) defendant had no legitimate expectation of privacy in the potentially incriminating odors emanating from her lawfully stopped vehicle.

"A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85, 94 (1984). A field test that has a remote possibility of revealing a noncriminal fact is highly unlikely to "actually compromise any legitimate interest in privacy" and cannot be characterized as a search subject to the fourth amendment. Jacobsen, 466 U.S. at 124, 104 S.Ct. at 1662, 80 L.Ed.2d at 101 (holding a field test to determine whether a white powder substance was cocaine was not a search). More recently, the Court found a dog sniff does not compromise defendant's legitimate interest in privacy because no one has a legitimate interest in possessing contraband, and the canine drug-sniff, properly performed, was likely to reveal only the presence of contraband. Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842, 847 (2005).

The State argues the set-up technique was more properly compared to government agents prepping luggage for a dog sniff than to...