People v. Al Burei, No. 1-05-0599.

• Court: United States Appellate Court of Illinois
• Writing for the Court: PATTI
• Citation: 937 N.E.2d 297,344 Ill.Dec. 591,404 Ill.App.3d 558
• Docket Number: No. 1-05-0599.
• Decision Date: 30 September 2010
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Omar AL BUREI, Defendant-Appellee.

937 N.E.2d 297
404 Ill.App.3d 558
344 Ill.Dec. 591

The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Omar AL BUREI, Defendant-Appellee.

No. 1-05-0599.

Appellate Court of Illinois,
First District, First Division.

Sept. 30, 2010.

937 N.E.2d 298

Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Linda D. Woloshin, Christina M. Schlect, Assistant Attorneys General, for Appellant.

Justice HALL delivered the opinion of the court:

344 Ill.Dec. 592, 404 Ill.App.3d 559

Pursuant to Supreme Court Rule 604(a)(1) (210 Ill.2d R. 604(a)(1)), the Attorney General appealed from the granting of defendant Omar Al Burei's motion to suppress evidence. As the defendant did not file a brief, the appeal was taken on the Attorney General's brief only. On December 5, 2006, this court affirmed the granting of the defendant's motion to suppress in an order pursuant to Supreme Court Rule 23 (Official Reports Advance Sheet No. 15 (July 16, 2008), R. 23, eff. May 30, 2008). People v. Al Burei, No. 1-05-0559, 368 Ill.App.3d 1216, 341 Ill.Dec. 757, 931 N.E.2d 365 (2006) (unpublished order under Supreme Court Rule 23). The Attorney General filed a petition for leave to appeal.

937 N.E.2d 299, 344 Ill.Dec. 593

On November 26, 2008, our supreme court denied leave to appeal but issued a supervisory order directing this court to vacate and reconsider its judgment in light of People v. Cosby, 231 Ill.2d 262, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008). Accordingly, we vacated our judgment in Al Burei and considered whether Cosby required a different result. After finding Cosby distinguishable on its facts from the present case, we affirmed the granting of the motion to suppress. See People v. Al Burei, 391 Ill.App.3d 1, 330 Ill.Dec. 350, 908 N.E.2d 538 (2009) ( Al Burei II ). The Attorney General filed a petition for leave to appeal.

On May 26, 2010, our supreme court denied the petition for leave to appeal but issued a supervisory order directing this court to vacate and reconsider its judgment in light of People v. Oliver, 236 Ill.2d 448, 338 Ill.Dec. 901, 925 N.E.2d 1107 (2010). In accordance with the supervisory order, we vacate our judgment in Al Burei II and consider whether the decision in Oliver requires a different result. We conclude it does not and affirm the granting of the motion to suppress. The pertinent facts are set forth below.

404 Ill.App.3d 560

The defendant was indicted and charged with the following offenses: transportation of unstamped cigarettes with intent to evade the cigarette tax (35 ILCS 130/9c (West 2002)); transportation of unstamped cigarettes without a permit (35 ILCS 130/9c (West 2002)); and possession of unstamped cigarettes with intent to sell (35 ILCS 130/24(a) (West 2002)). The defendant filed a motion to suppress evidence. At the hearing on the motion, the following evidence was presented.

BACKGROUND

I. The Defendant

Shortly after 1 p.m. on July 11, 2003, the defendant was a passenger in a minivan driven by his friend, Majdi Ghaban. The car was owned by the defendant. Mr. Ghaban was driving because the defendant's driver's license was suspended. The two men were on their way to get something to eat when the minivan was stopped by a police officer. The officer spoke to Mr. Ghaban, advised him that he had almost hit a bus and ordered him out of the minivan. After speaking with Mr. Ghaban for about three minutes, the officer approached the defendant and asked for his driver's license. After the defendant tendered his license to the officer, the officer ordered the defendant to exit the car. The officer then began to search the interior of the car. He opened the glove compartment and removed whatever was inside. The officer then informed the defendant that he was under arrest. The officer also searched the back of the minivan but did not remove anything. The officer did not show the defendant any warrants for his arrest, any search warrants and he did not ask the defendant's permission to search the minivan. The defendant was then taken to the police station.

On cross-examination, the defendant acknowledged that there were boxes of cigarettes in the back of the minivan. He further acknowledged that he told the officer that the cigarettes were his. Questioned as to whether the officer asked if he could take a look in the minivan, the defendant testified, "He stood by the window on the right side."

II. Officer Glenn Tienstra

Shortly after 1 p.m. on July 11, 2003, while on routine patrol, Officer Tienstra observed a white minivan make a U-turn in front of a Pace bus. The minivan also had a cracked windshield. Officer Tienstra conducted a traffic stop of the minivan. He asked the driver, Mr. Ghaban, for his

344 Ill.Dec. 594, 937 N.E.2d 300

license. Mr. Ghaban displayed nervous behavior and kept looking at his passenger. Concerned for his safety, Officer Tienstra

404 Ill.App.3d 561

asked Mr. Ghaban to exit the minivan and step to the back of the vehicle. When questioned why he appeared nervous, Mr. Ghaban stated that this was the first time he had ever been stopped by the police. When Officer Tienstra asked if there was anything illegal inside the minivan, Mr. Ghaban responded that he did not know and that the minivan belonged to his passenger, the defendant.

Within five minutes of the stop, Officer Beckwith arrived on the scene. He waited with Mr. Ghaban while Officer Tienstra spoke with the defendant. Again for safety concerns, Officer Tienstra had the defendant step out of the minivan and identify himself. The defendant did not produce a driver's license but did identify himself to the officer. Officer Tienstra asked the defendant why Mr. Ghaban was so nervous and why the defendant was not driving. The defendant told him that he was not driving because he was busy on his cell phone. When Officer Tienstra asked if there was anything illegal in the minivan, the defendant stated not that he knew of and gave Officer Tienstra permission to search the minivan. Officer Tienstra instructed the defendant to go to the back of the minivan with Officer Beckwith, while he looked inside the vehicle. Officer Tienstra searched the entire minivan and located five cardboard boxes filled with cartons of cigarettes. Questioned about the cigarettes, the defendant stated that he purchases cigarettes in Kentucky and sells them in Illinois and Indiana. Officer Tienstra opened some of the boxes and ascertained that the cigarettes in those boxes had Kentucky stamps but not Illinois stamps.

On cross-examination, Officer Tienstra stated that he issued Mr. Ghaban a citation for the cracked windshield and a verbal warning for the U-turn. He issued the ticket at the police station.¹ Officer Tienstra requested that the defendant exit the minivan due to safety concerns, even though the traffic stop was made across the street from the police station and another officer was then on the scene. The time between the stop and the defendant exiting the vehicle was approximately five minutes at the most. The defendant did not appear nervous and was not committing any crimes. His statements were not inconsistent with those of Mr. Ghaban. Officer Tienstra denied that he had not asked the defendant's permission to search the minivan. Questioned by the court, Officer Tienstra testified that approximately five minutes elapsed between the time of the stop and the search of the minivan.

404 Ill.App.3d 562

In ruling on the motion to suppress, the court found that Officer Tienstra was justified in stopping the minivan. The court further found that Officer Tienstra asked for and received the defendant's consent to search the minivan. However, the court further found that the officer's questioning of the defendant "was completely unrelated to the initial purpose of the stop." The circuit court granted the motion to suppress. The Attorney General filed a certificate of impairment and timely appealed the circuit court's order.

ANALYSIS

The sole issue on appeal is whether the circuit court erred in granting the motion to suppress evidence.

344 Ill.Dec. 595, 937 N.E.2d 301

I. Standard of Review

Where a motion to suppress involves credibility assessments or factual determinations, a reviewing court will reverse a trial court's ruling only if it is manifestly erroneous. People v. Driggers, 222 Ill.2d 65, 70, 304 Ill.Dec. 625, 853 N.E.2d 414 (2006). Where, as here, the appeal concerns the trial court's ultimate ruling on the defendant's motion to suppress, our review is de novo. Driggers, 222 Ill.2d at 70, 304 Ill.Dec. 625, 853 N.E.2d 414.

II. Discussion

"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, 298 Ill.Dec. 446, 839 N.E.2d 1093 (2005). "A temporary detention of an individual during a vehicle stop constitutes a seizure of his person within the fourth amendment, even if the stop is brief and for a limited purpose." Ramsey, 362 Ill.App.3d at 614, 298 Ill.Dec. 446, 839 N.E.2d 1093. The Supreme Court recently confirmed that in a traffic stop, a passenger as well as the driver is "seized." See Arizona v. Johnson, 555 U.S. 323, ----, 129 S.Ct. 781, 787, 172 L.Ed.2d 694, 703 (2009).

As a general rule, a fourth amendment challenge to the reasonableness of a traffic stop is analyzed under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). People v. Gonzalez, 204 Ill.2d 220, 226, 273 Ill.Dec. 360, 789 N.E.2d 260 (2003), abrogated on other grounds by People v. Luedemann, 222 Ill.2d 530, 306 Ill.Dec. 94, 857 N.E.2d 187 (2006) ² ( Terry analysis applies even though the vehicle stop was supported by probable cause). A Terry analysis includes a dual inquiry: (1) " 'whether the officer's action was justified at its inception,' and (2) 'whether it was reasonably related in scope to the circumstances which

404 Ill.App.3d 563

justified the interference in the first place.'...