People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57)
The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.
Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a)), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g)), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g)).
Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield “unreasonably prolonged the duration of the stop,” thereby subjecting him to an “unlawful seizure.”
The video shows that when the Deputy walks up to the driver’s side of the SUV, he first requests defendant’s driver’s license and proof of insurance.
He asks defendant, “You from Washington?”
Then tells him to take the bandana off the rearview mirror because it obstructs his vision. Defendant removes the bandana.
The deputy asks defendant, “Where you headin’?” and “Travellin’ straight through?” A semi goes by on the highway, drowning out defendant’s answer. Then he asks defendant, “How long you plan on bein’ there?”
It is still difficult to hear defendant, but he seems to answer either “a few days” or “two days.”
He asks defendant, “[unintelligible] know you’re coming?” and then, “Anybody know you’re comin’?” Defendant answers, “Yeah.” The deputy returns to his squad car.
The dispatcher can be heard stating on the radio: “Kentucky for Joshua Thomas, male white, 6 foot, 225, born in ’79, multiple for traffic, also multiple for drug trafficking and [unintelligible].”
Still On The Video
Deputy again approaches the SUV.
At his request, defendant pulls forward, past the guardrail and the overpass. The deputy goes to the passenger side of the SUV with what appears to be documents in his hand. He leans into the front passenger window, so that his forearms go into the open window, and tells defendant, “Ah, the traffic stop’s over, ah, you’re free to go, all right.”
Questions Keep Coming
The deputy then withdraws from the window, without the documents, and asks him, “Ahm, you said you’re going to see ***Alabama?” Defendant answers, “Yes, sir.”
The deputy asks him, “How old’s your daughter?” “She 14,” defendant replies. Deputy says, “Fourteen. OK. She does know you’re comin’?” “Yes,” defendant answers. He replies, “OK. All right. Um, did you get arrested in Kentucky a while back?”
Defendant says, “Yeah. It’s been a long time ago.” The deputy asks him, “What was that for?” Defendant explains he used to have a “bad habit” and that he “went down a bad path” but that he had “changed [his] life” and “now [taught] martial arts” to “law enforcement and military.”
Deputy makes appreciative noises.
Here We Go The Big Question
Then deputy tells defendant, “Um, we’re out working a drug interdiction detail today. I’m not accusing you of anything. Do you have any contraband in the car, any large amounts of money, firearms, anything like that?” Defendants denies having any of those things.
Deputy then asks him, “No? Would it be OK if I searched your car?”
Defendant responds, “What’d you pull me over for?”
Deputy answers, “I pulled you over for having an obstructed windshield.” Defendant asks, “You said I’m free to go?” Deputy says, “Yeah.” Defendant says, “All right, well, thank you, sir.”
Deputy says, “All right. Have a safe trip.”
Defendant says, “All right, you have a good one.”
Deputy then tells defendant, “Tell you what, um.” The taillights of the SUV light up, but the SUV does not move. Deputy says, “Um.” The taillights go off. Deputy continues, “You don’t want me, you don’t want me searching your car, right?”
Defendant again asks, “You said I was free to go?” Deputy answers, “Yeah.” Defendant says something unintelligible.
Deputy explains to him that, in Illinois, “if you have any personal use cannabis, or anything like that, or drug paraphernalia, that’s not, it’s not even arrestable anymore, it’s a simple ticket.” Deputy asks him, “Do you have anything like that in your car?” Defendant answers, “No,” and says he does not smoke.
Deputy tells him, “OK. All right. All right. Ahm, I’m gonna have, ah, the state police walk their K-9 around your car, and if it doesn’t alert, obviously then I won’t search your car, all right? All right. Cool.”
Deputy walks back to his squad car.
About two minutes later, he returns to the SUV and tells defendant, “Trooper’s here, just put up your windows, all right?” and then walks back to his squad car.
The DVD shows the dog and its handler, the state trooper, doing the walk-around. The dog alerts on the SUV. Deputy asks defendant to get out. Deputy and the trooper then search the SUV and find the cannabis.
He places defendant under arrest.
He saw a black GMC Yukon sports utility vehicle (SUV) with Washington state license plates going east at 68 miles per hour. The SUV was within the 70 mile-per-hour speed limit. Nevertheless, the deputy, noticed that a bandana was hanging from the rearview mirror of the SUV, and the bandana looked wide enough to be a material obstruction of the driver’s view (see 625 ILCS 5/12-503(c) (West 2016)).
The Deputy followed the SUV and pulled up next to it, on the left.
That is what he typically did before pulling someone over: pull up alongside the vehicle to see how many people were in the vehicle and to observe their reaction when they saw his marked squad car. Defendant appeared to be the only person in the SUV, and he would not look over at him as they went side by side down the highway.
Instead, defendant kept his gaze riveted straight ahead as he held onto the steering wheel tightly at 10 o’clock and 2 o’clock. This tunnel vision seemed “very strange and odd behavior”. He then pulls him over.
Defendant continued to look straight ahead and would not look at the deputy. He appeared to be very nervous, and, in response to his questions, he mumbled instead of speaking clearly.
Deputy Had Problems With His Itinerary
Deputy asked him about his travel plans.
Defendant answered “he was going to Alabama” and that “he was driving straight through.” This answer caught the deputy’s attention for two reasons. First, it was about a 35 hour drive from Washington to Alabama, and although it would have been possible, it would have been very unusual to drive 35 hours “straight through.” Second, it appeared to the deputy from a map of the interstate highway system, which he accessed on his cell phone in his squad car, that “Illinois was way too far north” and there would have been no reason for defendant to drive through Illinois to get from Lakewood, Washington, where, according to his driver’s license, he resided, to even the northernmost city of Alabama.
Additionally, the deputy thought to himself it made little sense to “travel 70 hours in a car to spend two days somewhere,” especially since it would have been cheaper to fly than to drive an SUV such a long way.
This Didn’t Happen This Way
The Deputy asked defendant if his daughter knew he was coming.
Initially, defendant “could not answer him.” Deputy testified: “He mumbled something out that wasn’t even a word, so I had to ask him a second time, and he finally told me that, yes, she did know.” Defendant was, Deputy admitted, soft-spoken.
The difficulty in understanding him lay not so much in the softness of his voice as in his mumbling. Further into the traffic stop, however, his articulation grew clearer.
What Was In The SUV
He testified that inside the SUV he saw a large amount of “road trash”: at least five energy drinks and “lots of empty wrappers of several bags of beef jerky, chips, [and] snacks”—the kind of stuff that “would be used to keep people up to drive long distances.” He also saw “a backpack, no large amounts of luggage, [and] a large speaker box.” From his vantage in the traffic stop, he could not see anything else inside the SUV.
The State’s position on appeal is that, after Deputy ended the first detention of defendant by returning his documents to him and telling him he was free to go, he and defendant had a consensual encounter, in which he asked questions of defendant, and that, after this consensual encounter, he then detained defendant a second time by telling him he was going to have a dog smell his vehicle.
In other words, it is the State’s position that there was a consensual encounter sandwiched between two detentions.
Although a police officer may stop and briefly detain a motorist when the officer has seen the motorist commit a traffic offense, the traffic stop can become an unreasonable seizure “if it is prolonged beyond the time reasonably required to satisfy its initial purpose.” People v. Heritsch, 2017 IL App (2d) 151157, ¶ 9.
“[T]he 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, 575 U.S. at ___, 135 S. Ct. at 1614. “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 this case, the mission of the traffic stop was done when the deputy gave defendant a verbal warning for an obstructed windshield and told him he was free to leave.
When deputy gave defendant a verbal warning, returned his documents to him, and told him he was free to leave, the traffic stop ended. “Generally, a traffic stop ends when the paperwork of the driver *** has been returned *** and the purpose of the stop has been resolved.” People v. Leach, 2011 IL App (4th) 100542, ¶ 12.
After the traffic stop ended, Deputy continued to ask defendant questions, such as how old his daughter was, whether she knew he was coming, whether defendant had any contraband in the vehicle, and whether he would consent to a search of the vehicle.
In the totality of those circumstances, we conclude that the deputy lacked reasonable suspicion to detain defendant for the dog sniff.
After telling defendant he was free to leave, the deputy did not glean any additional information that would have aroused reasonable suspicion, and yet he told defendant, “I’m gonna have *** the state police walk their K-9 around your car,” thereby signifying to defendant that he was not free to leave.
This was an unreasonable seizure, unsupported by reasonable suspicion of criminal wrongdoing, and, consequently, the fruit of the unreasonable seizure, the cannabis, must be suppressed as evidence.
Yeah But Did The Deputy Have Independent Probable Cause For The Sniff?
The State disputes the court’s finding that the deputy lacked a reasonable, articulable suspicion of drug trafficking.
The State argues that, considered in their totality, the facts known to him at the time and the inferences his law-enforcement training and experience had taught him to draw from such facts made him reasonably suspicious and “justif[ed] the detention of defendant and his vehicle for the canine sniff and all that followed.”
The Reasons He Suspected Drug Trafficking…
He testified he suspected defendant of drug trafficking for the following reasons—
1. Excessive Nervousness. Although nervousness can contribute to reasonable suspicion (People v. Moore, 341 Ill. App. 3d 804, 811 (2003)), nervousness is not enough to arouse reasonable suspicion (see People v. Sinegal, 409 Ill. App. 3d 1130, 1135-36 (2011)).
2. Driving Under the Speed Limit. Because it is illegal to drive faster than the speed limit, driving a mere two miles per hour below the speed limit does not contribute to reasonable suspicion.
3. Out of State Plates and His Purported Destination. Defendant’s presence on Interstate 74, near Carlock, Illinois, contributed little to reasonable suspicion. On Google Maps, one of the suggested routes from Lakewood, Washington, to Alabama is through Idaho, Montana, North Dakota, Minnesota, Wisconsin, Illinois, Kentucky, and Tennessee. In Illinois the suggested route goes through Bloomington, via Interstate 39. Carlock is only 13.4 miles from Bloomington and, therefore, is not far out of the way.
4. Evidence of Hard Travel. This was a 35 hour drive. “Road trash” was evidence of “hard travel.” Couriers of drugs wanted to minimize their risk by getting rid of the drugs as soon as they could. So, instead of stopping at restaurants, they typically drove straight through, keeping themselves awake and boosting their stamina by loading up on energy drinks and junk food from gas stations. Problem is, innocent drivers likewise consume energy drinks and junk food to stay awake on the road, and they drive straight through to avoid spending money on hotels. Because fast-food wrappers and containers litter the floors of many cars traveling long distances on interstate highways, such supposed signs of “hard travel” contribute little to reasonable suspicion. “The facts used to support an investigatory detention are insufficient when they describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” People v. Ortiz, 317 Ill. App. 3d 212, 225 (2000).
5. Driving Instead of Flying, Only to Stay a Few Days. First, we note that, contrary to the deputy’s testimony, “a few days” does not necessarily mean only two days. Instead, “few” means “a small number of”—which could be more than two and all the way up to whatever number one regards as the upper limit of “small.” New Oxford American Dictionary 626 (2001). ¶ 90 Second, it is not unusual for people to drive even if flying would be cheaper. They want to see the scenery or stop at places along the way, or they need transportation once they reach their destination. Defendant’s choice to drive rather than to fly contributes little to reasonable suspicion.
6. No Luggage in Sight. Deputy testified he saw no luggage. He saw, however, a backpack. Not everyone owns luggage, and if defendant intended to stay only a few days with his daughter, he could have stuffed his backpack full of clothing. So, the lack of luggage other than a backpack makes no contribution to reasonable suspicion.
7. A Criminal History of Drug Trafficking. The dispatcher told the deputy that defendant had “multiple for drug trafficking” in Kentucky. A criminal history and nervousness, without more, do not arouse reasonable suspicion. People v. Davenport, 392 Ill. App. 3d 19, 28 (2009).