People v. Pettis, 2016 IL App (4th) 140469 (June). Episode 196 (Duration 6:42)

In the Fourth District a positive drug sniff may not necessarily lead to the automatic searching of the car’s passengers.

Facts

Defendant was in the rear side passenger in car stopped for suspended plates for a mandatory insurance violation.

The driver was arrested for revoked license but also showed signs of nervousness. A drug dog came out. It alerted.

The officers then took defendant out of the car for a pat-down weapon search. Defendant consented to a search of his person. Nothing was found on him.

Defendant was handcuffed because the drug dog alerted on the vehicle. Defendant was then placed in the backseat of one of the police vehicles.

The driver and front seat passenger are then removed. The female told the cops defendant hid drugs in his buttocks.

When they go back to him they felt the “knot of a [Baggie]” between defendant’s buttocks.

Issue

Defendant’s appeal rests on violations of the 4th amendment. He simply argued the search of his person was done without proper probable cause and waived everything else including:

• Any scope of the sniff and 
• Any argument that he should have been released after his warrant check came back clean

See also the Illinois Drug Dog Resource Page.

Law

Police officers may extend a traffic stop without violating an occupant’s constitutional rights as long as the extension is based on evidence leading to a reasonable suspicion of other criminal activity discovered before the original mission of the stop is completed.

Analysis

In this case, the State presented sufficient information to show the continued detention in this case was appropriate based on evidence discovered during the mission of the original stop.

The evidence in question was the police dog’s positive alert on the suspect vehicle with defendant inside.

Defendant did not argue the police dog’s open air search was not done within the time reasonably required to complete the purpose of the stop in this case.

While the police did not believe defendant had the drugs on his person after that search, the officers had reasonable suspicion contraband was in the vehicle or in the possession of the driver or front seat passenger.

People v. Fondia

The police did not violate defendant’s rights by continuing to detain him after this consensual search until they could search the vehicle. After the front seat passenger said defendant had the drugs the police had sufficient probable cause for a warrantless search.

In 2000, this court held “that a police canine alert of a car’s exterior indicating the presence of a controlled substance within the car does not, without more, provide the police with probable cause to search the persons of the car’s occupants.” People v. Fondia, 317 Ill. App. 3d 966, 969, 740 N.E.2d 839, 841 (2000).

However, this court stressed its “holding is limited to the facts of record and turns on the absence of any indicia of suspicion particular to defendant. Without more, the search of defendant’s person was not justified.” (Emphasis in original.) Id. at 972, 740 N.E.2d at 844.

This Case

The instant case is distinguishable from Fondia because the searches in this case were not based simply on the police canine’s positive alert. The other individuals in the vehicle made statements regarding defendant hiding something between his buttocks or in his anus.

The driver told an officer defendant had “his hand up his ass.”

Further, the front passenger told an officer defendant had concealed something in his buttocks and had asked her if the police dog would be able to smell whatever he placed between his buttocks.

Since this court’s decision in Fondia, the Second District specifically rejected this court’s approach. People v. Neuberger, 2011 IL App (2d) 100379, ¶ 10, 959 N.E.2d 195. The Second District held a police dog’s positive alert on a vehicle may provide the police with probable cause to search the vehicle and a passenger in the vehicle. Id. ¶¶ 9-10.

In addition, this court has stated the smell of cannabis in a vehicle by a police officer can justify the search of a passenger in that vehicle. Williams, 2013 IL App (4th) 110857, ¶ 34, 990 N.E.2d 916. Because the facts in this case are distinguishable from Fondia, we need not determine whether this court’s holding in Fondia is still good law.