People v. Cox

• Decision Date: 05 December 2000
• Docket Number: No. 5-99-0238.,5-99-0238.
• Citation: 739 N.E.2d 1066,318 Ill.App.3d 161,251 Ill.Dec. 133
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Anne F. COX, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

739 N.E.2d 1066

318 Ill.App.3d 161

251 Ill.Dec. 133

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Anne F. COX, Defendant-Appellee.

No. 5-99-0238.

Appellate Court of Illinois, Fifth District.

December 5, 2000.

Kevin Kakac, Wayne County State's Attorney, Fairfield; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Appellant.

Daniel M. Kirwan, Deputy Defender, Dan W. Evers, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, for Appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Anne F. Cox (defendant) was charged by way of information with unlawful possession of cannabis pursuant to section 4(a) of the Illinois Cannabis Control Act (720 ILCS 550/4(a) (West 1998)). A motion-to-suppress hearing was held, and the trial court found that the police violated defendant's fourth amendment rights (U.S. Const., amend.IV) and privacy rights under the Illinois Constitution (Ill. Const. 1970, art. I, § 6). The State filed a timely notice of appeal on April 5, 1999. On appeal, the State presents one issue for review: whether the government needed at least reasonable suspicion to conduct a walk-around of defendant's vehicle by a drug-sniffing dog while defendant was being lawfully detained at a routine traffic stop. For the reasons that follow, we affirm.

I. FACTS

On July 20, 1998, the State charged defendant by way of information with the offense of unlawful possession of cannabis. On February 3, 1999, defendant filed a motion to suppress alleging that defendant was arrested for the offense of not having a rear registration light and that Illinois law does not permit the police to search vehicles after routine traffic stops unless the police possess a strong reason to suspect that the vehicle is carrying drugs or weapons.

On March 18, 1999, a hearing on defendant's motion to suppress was held before the trial court. Defendant called Matt McCormick, a Fairfield police officer, as a witness. McCormick testified that on July 18, 1998, around 2:21 a.m., he observed that defendant's vehicle did not have a rear registration light. McCormick stopped the vehicle. When he spoke with defendant, he did not smell marijuana in the car. Just after the stop, McCormick notified Deputy Zola, who subsequently arrived at the scene with canine drug dog Tango. McCormick believed that it took about 15 minutes for Deputy Zola and Tango to arrive. McCormick had testified that it ordinarily takes 10 to 15 minutes for him to write a ticket. McCormick was busy writing a traffic citation when Deputy Zola and Tango arrived. The dog sniffed about the vehicle and positively alerted the police to the presence of contraband. McCormick testified that the vehicle was first searched after the drug dog alerted, whereupon cannabis residue and seeds were found on the floorboard of the car. After observing this evidence of contraband, Deputy Zola asked defendant to empty her pockets. Cannabis was found on defendant's person. McCormick stated that he was still in the process of writing the traffic ticket when Deputy Zola and Tango arrived.

After McCormick testified, the parties presented their respective arguments. Defendant argued two bases in support of her motion to suppress: (1) no probable cause existed to justify a search of the exterior of the vehicle by the canine unit and (2) the length of the detention was unreasonably long, constituting a seizure. The trial court took the matter under advisement.

On March 30, 1999, the trial court entered a written order granting defendant's motion to suppress. The trial court relied on the Appellate Court, Third District, decision in People v. Easley, 288 Ill.App.3d 487, 223 Ill.Dec. 826, 680 N.E.2d 776 (1997), and concluded, "[T]he officer's testimony revealed no reasonable basis which would justify the walk[-]around." The trial court held that because the walk-around was illegal, the pat-down of defendant was illegal and defendant should have been allowed to leave. The trial court did not make a finding on the question of whether defendant was unreasonably delayed.

II. ANALYSIS

The first issue on appeal is whether the exterior sniff of defendant's vehicle violated her fourth amendment right against unreasonable searches and seizures. Where there is no issue of fact, we conduct a de novo review of a trial court's determination of reasonable suspicion or probable cause on a motion to suppress. Ornelas v. United States, 517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920-21 (1996); People v. Kidd, 175 Ill.2d 1, 25-26, 221 Ill.Dec. 486, 675 N.E.2d 910, 922 (1996); Easley, 288 Ill.App.3d at 491,223 Ill.Dec. 826,680 N.E.2d at 779.

The fourth amendment protects 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. It does not hinge upon the place in question but, rather, hinges upon whether the person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); People v. Neal, 109 Ill.2d 216, 221, 93 Ill.Dec. 365, 486 N.E.2d 898, 901 (1985).

The State presents the argument that our United States Supreme Court has ruled, in United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983), that a canine sniff does not constitute a search under the fourth amendment, and since the canine unit arrived while the officer was still writing defendant's traffic ticket, no detention occurred and no fourth amendment issue arose. See Place, 462 U.S. at 697-710, 103 S.Ct. at 2639-46, 77 L.Ed.2d 110. The State's argument hinges upon the contention that a canine sniff is not a search. If that contention is correct, the only way the fourth amendment is applicable is if the police detained the driver and/or vehicle for longer than it takes to write a traffic ticket, which would then trigger the seizure aspect of the fourth amendment. This argument is consistent with the majority holding in Place.

In Place, the defendant was traveling from Miami International Airport to New York's La Guardia Airport. While in line in Miami, law enforcement officers' suspicions were aroused, and they approached the defendant. The defendant consented to have his two bags searched, but his plane was departing so the law enforcement officers let the defendant proceed on his way. After finding some discrepancies with the address tags on his luggage, the law enforcement officers contacted the Drug Enforcement Agency (DEA) in New York. Upon the defendant's arrival in New York, the DEA agents approached the defendant. They told the defendant that they believed he was carrying narcotics, and they asked for and received identification. The defendant refused to consent to a search of his luggage, upon which the DEA agents told him that they were going to a federal judge to obtain a search warrant. The DEA agents took the luggage to Kennedy Airport, and there a canine unit performed a canine drug sniff. The dog positively alerted the agents to narcotics in one of the suitcases. The sniff occurred 90 minutes after the agents seized the luggage from the defendant. The agents used the positive canine alert to obtain a search warrant. They then opened the suitcase and discovered cocaine. The defendant pleaded guilty, after his motion to suppress was denied. Place, 462 U.S. at 697-701, 103 S.Ct. at 2639-41, 77 L.Ed.2d 110. The case proceeded to the United States Supreme Court, which held that seizure of the luggage violated the fourth amendment, based upon the seizure of the luggage without probable cause. Place, 462 U.S. at 706, 103 S.Ct. at 2644, 77 L.Ed.2d 110. In dicta, the Court stated that if the DEA agents had a dog present to sniff the luggage immediately, there would not have been a fourth amendment issue, because there would not have been seizure (for 90 minutes), nor would there have been a search, because the canine sniff is not a search under the fourth amendment. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45, 77 L.Ed.2d 110.

The State analogizes the present case to Place. It argues that since the canine unit arrived while Officer McCormick was writing the traffic ticket, no seizure of person or vehicle occurred, and that since the exterior canine sniff does not constitute a search, no fourth amendment issue is present. This argument is consistent with the majority opinion in Place, which bluntly states in dicta, "[W]e conclude that the particular course of investigation that the agents intended to pursue here-exposure of respondent's luggage, which was located in a public place, to a trained canine-did not constitute a `search' within the meaning of the Fourth Amendment." Place, 462 U.S. at 707,103 S.Ct. at 2645,77 L.Ed.2d 110. Therefore, we do not agree with the trial court that the exterior vehicle canine sniff violated defendant's fourth amendment rights in this case.

Article I, section 6, of the 1970 Illinois Constitution states, "The people shall have the right to be secure in their persons, houses, papers[,] and other possessions against unreasonable searches, seizures, invasions of privacy[,] or interceptions of communications by eavesdropping devices or other means." Ill. Const.1970, art. I, § 6. The fourth amendment sets the minimum rights a person shall receive against unreasonable government search and seizure. The Illinois Constitution can give people more protection. The United States Supreme Court has ruled in Place that a canine sniff does not constitute a search under the fourth amendment. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45, 77 L.Ed.2d 110. However, a canine sniff may still constitute a search under section 6 of article I of the 1970 Illinois Constitution.

The Illinois Appellate Court, Third District, has found that reasonable suspicion is...