People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18)

Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.

Gist

Traffic stop leads to a dog sniff and a car search. Stolen cigarettes destined for resale were discovered in the car.

The Trooper

The trooper was a trained drug interdiction investigator. Interstate transportation of narcotics was his thing.

Part of this training includes traffic stops, behavior classes, interviewing techniques, and other ­training to recognize possible drug activities during traffic stops.

The Stop

Around 10:45 p.m., he was on patrol on Interstate 55 just south of Springfield. He observed a Ford Taurus traveling 75 miles per hour in a 70 mile-per-hour zone. He caught up to it, which maintained a speed of 75 miles per hour, and followed it north.

The trooper initiated a traffic stop by turning on his emergency lights. The car came to a stop in the middle of the right lane, which immediately raised the trooper’s suspicion.

In his experience, the vast majority of stops do not involve the car stopping in a lane of traffic. He testified that people who stop in the middle of a lane do so because they are nervous, and, in his experience, every time a car stopped in a lane of traffic, he discovered something that resulted in an arrest.

Using his police car’s external public address (PA) system, the trooper instructed the driver of the Taurus to pull over onto the shoulder.

The Men

Two men were in the car.

The Trooper thought they were extremely nervous right from the get-go. Their hands shook, they had rapid heartbeats viewed by the throbbing carotid artery and a “bouncing” stomach. The trooper also saw twitching eyes and a leg was bouncing up and down.

The Conversation

Just 15 seconds into the stop, the men were told they were going to receive a “quick warning.”

The trooper learned they rented the car from Avis at the Chicago airport. They were from Missouri. They stuttered when they spoke and had a heavy accent. The trooper thought the long pausing and stuttering meant they were making up the answer on the spot.

Back To The Squad

Once back in his police car, the trooper confirmed with dispatch that the rented Taurus was “clear.” The men had no warrants

Four minutes and forty-five seconds into the stop, the trooper directed the driver over the police car’s PA system to “come here,” meaning the police car. He explained that he typically invites every driver to whom he issues a written warning to sit in his police car as he fills out the warning because it is safer than filling it out on the side of the road and because he is a “friendly guy.”

This gave the trooper an opportunity to talk and ask more questions.

The man couldn’t explain where in Missouri they were coming from, he said they were at his cousin’s friends house. The trooper asked about how long they visited and how long they had been traveling. He learned the family business was in a gas station with a grocery store.

Seven minutes and forty-five seconds into the stop, the trooper radioed for backup. The man remained extremely nervous throughout their conversation, even though the trooper repeatedly told him he would only receive a warning, which would not cost him anything. In his experience, drivers relax significantly when they know they are not getting a ticket.

The trooper asked again about the trip, where they went, why no bags, who they visited, ect…

11 minutes and 20 seconds into the stop backup arrives.

Back To Talk To The Passenger

The trooper said he didn’t believe the drivers story and he wanted to talk to the passenger again. Plus, he always gives paperwork directly back to the person from whom he received it to prevent allegations of lost or misplaced paperwork.

He had completed the written warning and only needed the driver to sign it. Instead, the trooper returned to the Taurus and gave the passenger back his license and rental agreement. He then asked many of the same questions he had asked the driver moments earlier.

The passenger answered them for the most part consistently.

He stated they had visited his father’s friend. He explained that his father was a partner with two similar stores and was looking to become partners with his friend in Missouri. They had travelled to Missouri to observe the business at his father’s request so he could learn.

The trooper explained he wanted to make sure defendants were not involved in criminal activity. He asked for permission to search the car and the passenger declined. That’s when the trooper told the men based on the way defendants were acting, he was going to have a drug dog come and sniff the car because he believed they were involved in criminal activity.

The Drug Dog

The trooper testified he requested the drug dog based on the following factors:

(1) defendants’ stopping their car in the middle of the right lane,
(2) defendants’ travel plan was conflicting and implausible in that it was highly unusual, and
(3) defendants remained extremely nervous despite being repeatedly told that they would receive just a warning.

Additionally, he explained that his suspicion was aroused because the driver did not know where he was coming from and could only give a vague description of what he was doing while in Missouri.

Weiss ordered the passenger out of the Taurus and sent him to the squad car.

The stop had lasted 17 minutes at that point. The request for the dog went in. Finally, the driver was asked to sign the warning and it was tendered to him. There were more questions and now the driver was asked for consent to search. The driver first said “yes” then said “no.” 

The narcotics-detection dog arrived approximately 8 minutes after he was called. 

This was now 25 minutes and 30 seconds into the stop.

The dog alerted on the trunk of the Taurus.

Full Search Now

The trooper got the keys to the Taurus and opened the trunk, which contained 480 cartons of cigarettes.

The cigarettes had Missouri tax stamps, but not Illinois tax stamps. The men were arrested for the transportation of unstamped cigarettes. At the police station the driver admitted they had travelled to Missouri to purchase cigarettes and transport them for resale in Chicago without paying Illinois taxes.

Guilty of Something

The applicable Missouri tax was approximately $0.17 per pack, while in Chicago the applicable tax was approximately $6.16 per pack. That’s $2,956.80 in lost revenue for Illinois. The men paid only $81.60 of taxes in Missouri.

The court found the men guilty of unlawful transportation of unstamped cigarettes (35 ILCS 130/9c) and unlawful possession of unstamped cigarettes (35 ILCS 135/30(d)). The trial court sentenced both defendants to two years of conditional discharge and ordered each to serve 14 days in jail.

The court also ordered forfeiture of the cigarettes and the imposition of “fines, fees and costs.”

Issue

Defendants appeal, arguing the trial court erred by denying their motion to suppress because the traffic stop was impermissibly prolonged without reasonable suspicion of criminal activity.

Prolonged Traffic Stop

Although a police officer may stop and briefly detain a motorist when the officer has observed the motorist committing a traffic offense (People v. Abdur-Rahim, 2014 IL App (3d) 130558, ¶ 26, 16 N.E.3d 903), the traffic stop can become unlawful “if it is prolonged beyond the time reasonably required to satisfy its initial purpose” (People v. Reedy, 2015 IL App (3d) 130955, ¶ 25, 39 N.E.3d 318).

The United States Supreme Court has observed that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015).

According to the Supreme Court, “authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at ___, 135 S. Ct. at 1614. In a routine traffic stop, the officer’s mission includes not only deciding whether to issue a ticket, but also activities such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

Although an officer may also conduct checks unrelated to the traffic stop’s mission, “he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”

People v. Ricksy

Twenty-eight years ago, in People v. Ricksy, this court suggested a particular analytical approach for trial courts when deciding motions to suppress evidence. People v. Ricksy, 206 Ill. App. 3d 302, 306-07, 564 N.E.2d 256, 259 (1990). Specifically, we explained that “[w]hen, as here, the evidence before the court reveals a series of interactions between the police and a person who is being stopped or searched, the court’s analysis should be as finely divided as possible to distinguish among the various stages of that interaction.”

In Ricksy, we outlined the following questions for consideration as an example:

“(1) Was the initial stop of the [vehicle] lawful?
(2) Assuming the initial stop to be lawful, did the officer lawfully order the passengers to get out and to stand at the rear of the vehicle?
(3) Assuming that order was lawful, did the officer lawfully conduct a pat-down of the defendant? And
(4) assuming the pat-down was lawful, did the officer lawfully remove the envelope from defendant’s pants pocket?”

See also People v. Salvator, 236 Ill. App. 3d 824, 835-36, 602 N.E.2d 953, 959-60 (1992), in which this court applied the analytical framework from Ricksy.

The Relevant Questions

Using the Ricksy analysis in this case, the relevant questions are the following:

(1) Was the initial traffic stop was valid?
(2) Assuming the initial stop to be lawful, was the stop prolonged beyond the time necessary to complete the mission of the stop?
(3) Assuming it was so prolonged, was the continued detention of defendants supported by a reasonable suspicion?

So Was the Stop Impermissibly Prolonged?

The State contends the traffic stop did not conclude until the trooper gave Ibrahim his warning ticket and told him to “drive safe.” Defendants counter that the stop ended when the had completed writing the warning ticket which was the initial basis for the stop.

We agree with defendants.

When deciding whether a traffic stop is impermissibly prolonged, the focus of the inquiry is on “when tasks tied to the traffic infraction are—or reasonably should have been— completed.” Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. Here the routine business of the traffic stop ended when the warning ticket was filled out.

The trooper testified that the written warning was completed when he left his police car to return the rental paperwork to the passenger. The only thing missing was the driver’s signature on the written warning, which the trooper could easily have obtained. Instead, the trooper proceeded to question the driver for approximately 4½ minutes about defendants’ itinerary.

This additional questioning was not related to the “mission” of the stop.

We conclude that the stop “was—or reasonably should have been—completed” at 11 minutes and 20 seconds into the stop. 

See more Drug Dog Delay cases.

Was This 4 1/2 Minute Delay Justified? Was There Reasonable Suspicion To Justify Further Detention?

State contends the delay was justified by reasonable suspicion to justify further detention.

Defendant contends the court’s finding that the nervous behaviors “increased” was manifestly erroneous and unsupported by any evidence in the record.

So, was defendants’ continued detention was justified by a reasonable articulable suspicion of criminal activity? Defendants argue the trial court’s ruling that the trooper had reasonable suspicion was erroneous. We disagree.

Reasonable Suspicion & Nervousness

Reasonable Suspicion is based on the totality of the circumstances.

Officers are entitled to rely on their past training and experience and to make inferences and deductions based on factors that may well elude the untrained person. People v. Leighty, 362 Ill. App. 3d 258, 261, 838 N.E.2d 1014, 1018 (2005). The nervousness of a stopped driver may be appropriately relevant in an officer’s judgment when assessing suspicious behavior, even though many people are nervous when interacting with the police. See People v. Davenport, 392 Ill. App. 3d 19, 27-28, 910 N.E.2d 134, 140 (2009) (citing United States v. Fernandez, 18 F.3d 874 (10th Cir. 1994).

An officer is free to evaluate a driver’s nervousness and the possible reasons therefor as part of the “totality of the circumstances”. People v. Moore, 341 Ill. App. 3d 804, 810-11, 792 N.E.2d 836, 842 (2003).

The Other Factors

Other things to consider are:

Implausible travel plans (People v. Collins, 2015 IL App (1st) 131145, ¶ 26, 42 N.E.3d 1)

• Strange behavior
• Conflicting stories (People v. Richardson, 376 Ill. App. 3d 612, 618-19, 876 N.E.2d 303, 309-10 (2007)), and the
• Presence of odors associated with drugs (People v. Boyd, 298 Ill. App. 3d 1118, 1127, 700 N.E.2d 444, 450 (1998)) or designed to mask the smell of drugs (People v. Roa, 398 Ill. App. 3d 158, 166, 923 N.E.2d 401, 409 (2010)).

Analysis

The record fully supports the trial court’s finding that the trooper had reasonable suspicion to justify further detention before he spoke with the passenger.

Three pieces of evidence, in particular, support this conclusion.

First, it is undisputed that defendants initially stopped in the middle of the right lane on I-55. The trooper testified that based on his prior experience, drivers pull off onto the side of the road the vast majority of the time. He further stated that in his experience, every time a car stopped in the middle of the road, he discovered something that resulted in an arrest.

Second, the trooper testified that in his experience, when a driver is told he or she is receiving a warning instead of a citation, his or her level of nervousness decreases. In this case, however, defendants’ nervousness never subsided despite repeatedly being told they would receive a warning.

Third, the trooper testified that defendants gave him a vague and implausible travel plan. The driver said they had traveled from Chicago to an unspecified location in Missouri (but not St. Louis) and stayed at a gas station for three to five hours. He further could not give specific answers regarding what defendants were doing while in Missouri.

They Were There Only 5 Hours

Common experience tells us that travelling for many more hours than one stays at his or her destination is unusual and, when travelling a great distance to cross state lines, can be suspicious. See United States v. Sokolow, 490 U.S. 1, 9 (1989) (explaining that few people would travel 20 hours from Hawaii to Miami to spend just 48 hours at that destination, thus contributing to reasonable suspicion).

It was reasonable to be suspicious that defendants would travel to Missouri from Chicago and remain there only between three to five hours.

Likewise, defendants’ purpose for the short trip was not something common, such as seeing a baseball game or attending a family event. Instead, defendants “just hung out” at a gas station, which can certainly be seen as unusual and suspicious.

Additionally, the trooper thought it odd that Ibrahim could say only that he was in Missouri and did not know or “remember” the name of the town or address he visited. 

Innocent Explanations For Everything

Defendants argue each of the bases for finding reasonable suspicion can easily be explained as innocent conduct.

For instance, they emphasize that they are from a foreign country and sometimes have difficulty communicating in English. They claim it makes sense that foreigners, not well-versed in the methods of law enforcement in the United States, would be extremely nervous and remain so when dealing with police for the first time.

Additionally, one who has never been pulled over may not know the proper procedure, thus explaining why Ibrahim stopped in the middle of the right lane on an interstate highway and not on the shoulder.

Last, they assert that nervousness is of limited value because each person may show nervousness differently, and if an officer has no prior knowledge of how a suspect normally acts, the officer has no baseline for comparison.

The police are not required to “rule out” innocent conduct or default to believing behavior is innocent just because they may be presented with an ambiguous situation. People v. Close, 238 Ill. 2d 497, 511, 939 N.E.2d 463, 471 (2010).

This Federal Case On Totality Of The Circumstances

We find support for our conclusion in the recent decision of the United States Supreme Court in District of Columbia v. Wesby, 583 U.S. ___, ___, 138 S. Ct. 577, 589 (2018), in which the Court reversed a decision of a federal appeals court that had concluded the officers involved in that case lacked probable cause to make an arrest.

The Court criticized the appellate court majority for engaging in an excessively technical dissection of the factors supporting probable cause. Indeed, the panel majority failed to follow two basic and well-established principles of law. The Supreme Court first noted that the panel majority viewed each fact in isolation, rather than as a factor in the totality of the circumstances. The Court noted that the totality of the circumstances requires courts to consider the whole picture, explaining that our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.

The Court further held that the totality-of-the-circumstances test precludes this sort of divide-and-conquer analysis that the panel majority engaged in. The Supreme Court then pointed out that the panel majority mistakenly believed that it could dismiss outright any circumstances that were susceptible of innocent explanation. Instead, the Supreme Court explained that the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.

The Court concluded by writing the following:

“Thus, the panel majority should have asked whether a reasonable officer could conclude— considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity.”

Holding

For the reasons stated, we affirm the trial court’s judgment.

See Also

Episode 533 – People v. Thomas, 2018 IL App (4th) 170440 (August) (excessive nervousness and rode trash didn’t rise to the level of reasonable suspicion)