People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36)

Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence.

Charges

Following a stipulated bench trial in the circuit court of Boone County, defendant, Ken Heritsch, was convicted of possession of more than 10 grams but not more than 30 grams of a substance containing cannabis (720 ILCS 550/4(c)). Because defendant had a prior conviction of possession of cannabis, the offense was a Class 4 felony.

Defendant was sentenced to a three-year term of probation and 90 days in the Boone County jail.

Gist

Defendant’s conviction was based on the discovery of cannabis in his vehicle following a traffic stop and a dog sniff. The time stamp on the video recording establishes a timeline of events.

Time Line of Events

(7:05:34 p.m.) Zapf testified that he observed the Mercury cross the fog line, after which he pulled the vehicle over.

(7:07:29 p.m.) Zapf approached the driver’s side of the Mercury (7:06:11 p.m.). Zapf asked defendant for his driver’s license and proof of insurance. Zapf then started to walk back to his squad car.

(7:08:12 p.m. to 7:08:20 p.m.) Before reaching the squad car, Zapf spoke briefly with Bogdonas about his observations of defendant’s condition. At the end of the conversation, Zapf asked Bogdonas to try to get defendant’s consent for a search of the Mercury. Zapf then returned to his squad car and ascertained that defendant’s driver’s license was valid and that he had no outstanding warrants. Zapf decided to issue a warning to defendant for crossing the fog line.

(7:09:53 p.m.) Meanwhile, Bogdonas had defendant step out of his vehicle, and she searched his person. Defendant did not consent, however, to a search of his vehicle. Bogdonas approached Zapf and told Zapf that defendant was being an “asshole”. Zapf had been writing a warning to defendant, but after speaking with Bogdonas, Zapf decided to issue defendant a citation for improper lane usage.

(7:10:59 p.m.) At that point, Zapf had written only defendant’s name on the warning. Zapf told Gardner that he had decided to issue a citation to defendant because Bogdonas said that defendant was a “jerk”.

(7:11:02 p.m.) Gardner then told Zapf to summon Officer Grubar, who worked with a drug detection dog, to the scene.

(7:11:07 p.m) Zapf made a radio call to Grubar at.

(7:11:33 p.m to 7:11:55 p.m) Grubar responded and told Zapf that she was unavailable. Zapf ended the call at.

(7:12:29 p.m. through 7:12:47 p.m.) Shortly thereafter, Zapf received a radio communication from Boone County deputy sheriff Kevin Smyth, who indicated that he would bring his drug detection dog, Bosco, to the scene. When Smyth arrived, he had Bosco conducted a free air sniff of the Mercury.

Citation Written While Sniff Was Done

Zapf then searched the vehicle, found cannabis, and placed defendant under arrest. Zapf testified that, while waiting for Smyth to arrive, he was in his vehicle and was working on defendant’s citation. Bosco completed the free air sniff while Zapf was still working on the citation. When Zapf finished writing the citation, he stepped out of his vehicle.

Smyth was questioning defendant.

Zapf testified that he walked to defendant, who was standing in front of Zapf’s vehicle. Smyth was walking back to his own vehicle. We note that the video recording shows that, when Zapf exited his squad car, he walked directly to defendant’s vehicle.

Drug Dog Did Not Delay

Smyth testified that identifying drugs by odor was among the things Bosco was trained to do. When Smyth arrived at the scene, he retrieved Bosco and started walking him toward defendant’s vehicle. Defendant was not in the vehicle. Zapf was sitting in his squad car. Smyth walked Bosco to the driver’s side of defendant’s vehicle. Smyth saw Bosco respond to the odor of drugs. Smyth opened the driver’s-side door, and Bosco jumped in the car and indicated on an ashtray in the center console and on a lunchbox. Smyth then pulled Bosco out of the vehicle and approached defendant.

The video recording shows that Bosco climbed into defendant’s vehicle at 7:18:09 p.m.

Smyth then walked over to defendant and spoke with him from 7:18:39 p.m. to 7:19:15 p.m.

Zapf is then seen outside his vehicle, walking toward defendant’s vehicle a few seconds later. As noted, Zapf testified that he stepped out of his squad car when he finished writing the citation and that Smyth was questioning defendant. Zapf testified that, when he stepped out of his squad car, Smyth was returning to his own vehicle. This appears to have taken place at about 7:19:15 p.m., a little over a minute after Bosco detected drugs in defendant’s vehicle.

No Delay In Writing The Ticket

Zapf described the steps involved in writing a citation or a warning.

Valid DL

He testified that the steps for a citation and a warning are the same up to the point where the officer must look up and write the statutory citation for the traffic violation on a citation and assign a court date. For either a citation or a warning, the officer first uses his or her computer to determine whether the motorist’s license is valid. This takes about two to three minutes.

Criminal History

Next, the officer uses his or her computer to check the motorist’s criminal history. It takes 2½ to 3 minutes to enter the information needed for a criminal history search and another 2 minutes or so for the computer to return the results. The officer then begins to write up the warning or citation.

The Write Up

First the officer fills in a case number, which is generated by dispatch when the officer calls in a traffic stop. Next, the officer fills in the motorist’s name, address, eye color, hair color, and date of birth. The officer also fills in the driver’s license number and expiration date. It takes 1½ to 2 minutes to fill in that information. The officer then fills in the date and time of the traffic stop. Next, the officer fills in information about the vehicle, i.e. the make, model, and year, the license plate number, and the expiration date of the license plates. Zapf testified that he retrieved defendant’s vehicle information from his computer. Because, in this case, the dispatch involved an identified vehicle, this information was available to Zapf before he pulled the vehicle over. Transferring the information onto the ticket generally takes about a minute.

Statutory Citation

When writing a citation, the officer looks up the statutory citation for the motorist’s traffic violation. That takes about two minutes.

Court Date

Finally the officer assigns a court date (which takes about a minute) and then signs and dates the ticket.

Case Law

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 Court, “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” A dog sniff during a traffic stop does not inherently violate the fourth amendment. Id. at ___, 135 S. Ct. at 1612 (citing Illinois v. Caballes, 543 U.S. 405 (2005)).

Analysis

According to defendant, “[h]ad Zapf focused on writing the warning notice rather than repeatedly stopping to discuss searching the defendant’s vehicle or attempting to locate a canine unit, despite no suspicion of unlawful activity, he necessarily would have completed the warning notice prior to the arrival of the canine unit.”

Thus, defendant maintains that Zapf improperly prolonged the traffic stop by asking Bogdonas to attempt to get defendant’s consent to a vehicle search and by “abandoning his preparation of the warning ticket, beginning to write a citation, and arranging for the arrival of a canine unit.”

Zapf chose to issue a citation rather than a warning after defendant refused to consent to a search. Although the choice is questionable, defendant cites no authority that it represents a departure from the mission of the traffic stop. We accept, for purposes of our analysis, that seeking defendant’s consent to a search and arranging to bring a drug detection dog to the scene were unrelated to mission of the stop.

If these tasks interrupted Zapf’s work on the mission of the stop, then Zapf necessarily completed the mission later than he otherwise would have. There must be evidence that, but for the activities unrelated to the mission of the stop, Zapf would have finished writing defendant’s citation and delivered it to defendant before Bosco detected drugs in defendant’s vehicle.

The trial court found that Zapf was working at a “normal pace” and was not “dragging his feet just to wait for [the] dog.” This finding is not against the manifest weight of the evidence.

Tasks unrelated to the mission of the stop added very little time—perhaps a minute—to the process, but roughly the same amount of time appears to have passed from the point when Bosco detected drugs in defendant’s vehicle until Zapf completed writing the citation. And Zapf had yet to deliver the ticket to defendant, which would have taken some additional time. Thus, as in Reedy, the evidence does not show that, but for activities unrelated to the mission of the stop, Zapf would have finished writing the ticket and would have delivered it to defendant before Bosco detected drugs in defendant’s vehicle.

Holding

Accordingly, we conclude that the activities unrelated to the mission of the stop did not prolong the stop; they did not cause the stop to extend beyond the point at which Bosco’s detection of drugs provided probable cause to believe that the vehicle contained drugs. For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed. For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.

See Also

• What Police Drug Dog’s Can And Can’t Do, A Criminal Law Resource
• Unreasonably Prolonged Traffic Stop Masks Other Problems With The Dog – People v. Paddy – Episode 417
• Fourth District Doing Something Different With Dog Sniff Cases – People v. Pettis – Episode 196
• Is a Police Dog Sniff During Traffic Stop Legal? – Rodriguez v. United States – Episode 069
• Dog Got There Almost Immediately After The Stop  – People v. Reedy – Episode 087
• People v. Pulling, 2015 IL App (3d) 140516 (June 2015) (stop was unreasonably prolonged when drug dog is walked around the car)
• People v. Litwin, 2015 IL App (3d) 140429 (September 2015) (drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop and oh yea, reviewing court doesn’t believe the officer)