People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46)

What does the new license plate obstruction statute say?

Gist

2 kilos of heroin and 1 kilo of cocaine were found under defendant’s hood. He was sentenced to 40 years on prison.

Facts

Defendant was stopped because his rear license plate was obscured by an empty bicycle rack attached to the car. It’s quite clear that the straps were hanging down so low that the license plate was obstructed and that only two digits of the license plate could be read.

During the traffic stop a drug detection dog gave a positive alert for the presence of drugs in defendant’s vehicle. The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

Before The Search

The trooper asked defendant to sit in the front passenger seat of his squad car so that he could speak with defendant and determine if defendant was authorized to drive the vehicle.

The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

At the same time, the trooper checked for defendant’s driver’s license information via his telecommunications system. The trooper received information that defendant had a valid driver’s license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, in Los Angeles, California.

Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California.

Defendant told police that there was no bicycle on the bicycle rack because he had sold it in Colorado.

Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant’s vehicle.

The Drug Dog Sniff

The trooper testified regarding the procedure for walking the canine around a vehicle.

He indicated that he attaches a six-foot lead to one of the canine’s two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. He would then give the canine the command to “seek, find dope,” which is the canine’s trained command to look for odors of narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and cannabis.

The trooper would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. On the second rotation of walking his canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk area of defendant’s vehicle.

The trooper described the canine alerting to having found narcotics as when the canine has “slowed his process, snapped his head and body back to the left, and began taking short, quick breaths.” After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.

Roadway Search

Another police trooper searched defendant’s vehicle on the side of the road. They searched for 20 minutes.

They conducted a cursory search of defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the trunk of defendant’s vehicle, the interior, under the seats, under the dashboard, and inside the doors by sticking a wedge into the doors to be able to see into the doors.

Due to the weather being below freezing at 20 degrees Fahrenheit and due to safety issues regarding oncoming traffic and low visibility because it was dark outside, the troopers decided to relocate defendant’s vehicle to a nearby police station in order to continue the search.

Drugs were found under the hood.

At The Station

The troopers then decided to relocate the search to a location where there would be more light to better see into various areas of the vehicle and where it would be safer and warmer because they could not see due to the darkness.

It was dangerous on the side of the road and the temperature was about 20 degrees outside.

They relocated defendant’s vehicle to the Geneseo Police Department and, after searching the vehicle for 10 or 15 minutes, they found the drugs under the hood in the engine compartment in an area covered by a black piece of metal or plastic.

It was 2 kilograms of suspected heroin and a 1 kilogram of suspected cocaine wrapped in black material, in a void area of defendant’s vehicle located by the engine and below the car’s windshield.

He was not able to see the black packages of narcotics in the void compartment area under the windshield on the roadside by just shining a flashlight because a flat piece of plastic or metal covered it. That piece of metal or plastic could easily be removed by removing some clips that covered the compartment, which was part of the vehicle from the factory, was not modified, and could be easily accessed.

The Non Issue Issue

Prior to trial, defendant filed a motion to suppress the evidence found during the search of his vehicle, arguing the traffic stop was initiated without probable cause or reasonable suspicion because the bicycle rack was not a violation of section 3-413(b) of the Vehicle Code because it was not attached to the license plate.

See People v. Gaytan

People v. Gaytan, 2015 IL 116223 (May).

The Illinois Supreme Court in Gaytan found that a prior version of section 3-413(b) was ambiguous, where the statute required that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers” (625 ILCS 5/3-413(b) (West 2010)).

The Illinois Supreme Court noted the word “materials” in section 3-413(b) could have been interpreted either as:

(1) prohibiting only items attached to the license plate itself because the only examples of the prohibited materials provided in the statute were license plate covers (an item attached to the plate itself); or
(2) prohibiting any obstructing object whatsoever. Id. ¶¶ 30-31.

Because the statute was deemed ambiguous in Gaytan, the Illinois Supreme Court invoked the rule of lenity and applied the more lenient interpretation of section 3-413(b) as prohibiting only those objects that obstructed the visibility and the legibility of the license plate that were physically connected or attached to the plate itself. Id. ¶ 39.

The Illinois Supreme Court further concluded that it was objectively reasonable for the officers to believe that the trailer hitch violated section 3-413(b) so that the vehicle stop was constitutionally valid under the fourth amendment.

The statute had since been changed to remove the language referencing license plate covers.

Illinois Registration Plate Statute

Old Law

The Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)), section 3-413(b) provided:

“Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than 5 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate. *** Registration stickers issued as evidence of renewed annual registration shall be attached to registration plates as required by the Secretary of State, and be clearly visible at all times.”

New Law

In 2014, at the time of the traffic stop in this case, section 3-413(b) of the Vehicle Code had been revised, so that the prohibition against “registration plate covers” was moved from subsection (b) to subsection (g). See 625 ILCS 5/3-413(b), (g) (West 2014).

Subsection (b) did not reference license plate covers, mandating that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate.” Id. § 3-413(b).

Subsection (g) indicated, “[a] person may not operate any motor vehicle that is equipped with registration plate covers.” Id. § 3-413(g).

The revised language of section 3-413(b) removed any ambiguity as to whether prohibited obstructions were only those attached to the license plate, making the statute clearly prohibitive of any materials that would obstruct the visibility of a license plate.

It Was A Good Stop

In this case, the empty bicycle rack was affixed to the vehicle in such a way that at least two bars or straps of the bicycle rack were secured in a vertical position over the license plate, covering at least two digits of the license plate.

The ends of the straps of the bicycle rack obstructed the license plate at times when the car was traveling and when the car was at a stop. Because the video and photographs showed that black bars or straps of the bicycle rack lay securely over the license plate, obstructing the visibility of the license plate, and at least two digits of the license plate were not legible.

Therefore, we conclude that the manner in which the bicycle rack was attached to the vehicle in this case constituted a violation of section 3-413(b) of the Vehicle Code. Thus, the trial court did not err in denying defendant’s motion to suppress.

But Did They Have The Right To Move The Car? 

See Episode 403 – People v. Pulido, 2017 IL App (3d) 150215 (August). Also, see more Illinois search and seizure opinions.

In Pulido, defendant’s vehicle was stopped for speeding by an Illinois state trooper. Two minutes later, another trooper arrived on scene with his canine partner, and the canine performed a free-air sniff of defendant’s vehicle, which resulted in the canine alerting to the driver’s side door.

Both troopers searched the inside of the vehicle and the engine compartment, and they found no narcotics. Police relocated the defendant’s vehicle to a nearby police station to further search the vehicle because it had begun raining and for safety concerns.

Eventually, tubes containing methamphetamines wrapped with black tape were removed from the air filter of the defendant’s vehicle. 

On appeal in Pulido, a panel of this court held the officers had improperly transported defendant’s vehicle to the police station because the probable cause that had been developed during the traffic stop had dissipated when no drugs or hidden compartments were found during the roadside search of the vehicle.

Third District Splits With Itself

We decline to follow Pulido.

Based on probable cause, the officers conducted a roadside search of readily accessible areas in the vehicle and areas of the vehicle where drugs are typically hidden by drug traffickers. Inclement weather, the time of day with respect to the available lighting, and safety concerns due to being alongside the highway in the dark led to the decision to continue the search of defendant’s vehicle by relocating the vehicle to a better-suited location.

Analysis

In this case, the evidence of the canine alerting to an odor of drugs provided probable cause for the troopers to believe that defendant’s vehicle contained drugs and to support a search of defendant’s vehicle. After searching all readily accessible areas of the vehicle, the troopers decided that continuing to search the vehicle in the dark, alongside the highway, in freezing temperatures, was unsafe and impractical.

Under the circumstances of this case, the probable cause that supported the search did not dissipate when the troopers decided to relocate the vehicle so that a complete and thorough search of the vehicle could be executed in safer location with better lighting.

The troopers had probable cause to search the vehicle without a warrant based on the canine’s alert and Veryzer’s knowledge that illegal drugs are typically transported from the west coast to east coast on interstate highways, including on I-80 where defendant was stopped, often times in vehicles  rented by third parties, such as was the case with defendant.

The probable cause that supported the warrantless roadside search of defendant’s vehicle continued to exist after the vehicle was relocated to a nearby police station to allow the troopers to conduct a thorough search of the vehicle.

Holding

Therefore, the trial court did not err by denying defendant’s motion to suppress evidence. Absent any error, there could be no plain error requiring a review of defendant’s forfeited claim. Accordingly, we affirm the judgment of the trial court.