People v. Varnauskas , 427 Ill. Dec. 39 ( 2018 )

2018 IL App (3d) 150654
Opinion filed July 25, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-15-0654
v. ) Circuit No. 14-CF-334
)
STEVEN J. VARNAUSKAS, ) Honorable
) Terence M. Patton,
Defendant-Appellant. ) Judge, presiding.
_____________________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Schmidt concurred in the judgment and opinion.
Justice McDade dissented, with opinion.
_____________________________________________________________________________
OPINION
¶ 1 Following a jury trial, defendant, Steven J. Varnauskas, was convicted of two counts of
controlled substance trafficking (720 ILCS 570/401.1(a) (West 2014)) and sentenced to two
concurrent 40-year terms of imprisonment. On appeal, defendant argues that the trial court erred
in denying his motion to suppress evidence. We affirm.
¶2 FACTS
¶3 On November 14, 2014, at 11 p.m., Illinois State Police Trooper Sean Veryzer was in his
squad car in the center median of Interstate 80 (I-80) when defendant’s vehicle passed him
traveling eastbound. Veryzer noticed that defendant’s rear license plate was obscured by an
empty bicycle rack attached to the car. Based on the fact that the license place was obscured by
the bicycle rack, Veryzer executed a traffic stop of defendant’s vehicle for a suspected violation
of section 3-413(b) of the Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)). At the time,
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.” (Emphasis
added.) Id.
¶4 During the traffic stop, Veryzer’s canine partner (a drug detection dog) gave a positive
alert for the presence of drugs in defendant’s vehicle. Based on the dog’s alert, Veryzer and
another police trooper searched defendant’s vehicle on the side of the road. 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. At the police station, Veryzer
located two kilograms of suspected heroin and a 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. Preliminary field tests of the suspected drugs tested positive for heroin and cocaine.
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Defendant was arrested and charged with two counts of controlled substance trafficking (720
ILCS 570/ 401.1(a) (West 2014)), possession with the intent to deliver heroin (id.
§ 401(a)(1)(D)), possession with the intent to deliver cocaine (id. § 401(a)(2)(D)), unlawful
possession of a controlled substance (heroin) (id. § 402(a)(1)(D)), and unlawful possession of a
controlled substance (cocaine) (id. § 402(a)(2)(D)).
¶5 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. In support of his motion to suppress, defendant cited People
v. Gaytan, 2013 IL App (4th) 120217, ¶¶ 44-45, in which the Fourth District Appellate Court
held that a trailer ball hitch on a vehicle did not violate the version of section 3-413(b) of the
Vehicle Code in effect at that time, which required license plates to be “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 Gaytan court reasoned that the trailer
ball hitch did not violate section 3-413(b) of the Vehicle Code because the trailer ball hitch was
not attached to the license plate and the example violations provided by the statute (license plate
covers) were items attached to the license plate. Id. ¶ 44.
¶ 6 In this case, on March 26, 2015, the trial court denied defendant’s motion to suppress,
noting that the Fourth District’s decision in Gaytan was pending an appeal in the Illinois
Supreme Court; although the appellate court in Gaytan held that the version of section 3-413(b)
applicable in that case only encompassed obstructions attached to the license plate itself, the
statute had since been changed to remove the language referencing license plate covers; and the
bicycle rack in this case was a distinguishable obstruction from the ball hitch obstruction in
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Gaytan because the ball hitch only slightly obstructed the license plate from certain angles,
whereas the bicycle rack straps in this case went down vertically over the license plate to
completely cover portions of the license plate.
¶7 On May 25, 2015, the trial court noted that the Illinois Supreme Court had issued its
ruling in Gaytan (People v. Gaytan, 2015 IL 116223) and asked whether defendant’s attorney
needed additional time to review the Gaytan decision to decide whether the decision impacted
defendant’s earlier motion to suppress. The defendant’s attorney noted that although the Illinois
Supreme Court indicated the applicable version of section 3-413(b) could be read as only
encompassing obstructions physically attached to the license plate, the Illinois Supreme Court
also noted section 3-413(b) was ambiguous so that the officers in that case had an objectively
reasonable belief that the trailer hitch violated section 3-413(b). The defendant’s attorney
indicated that Gaytan, therefore, was not supportive of defendant’s motion to suppress.
¶8 On June 4, 2015, defendant’s jury trial began. Veryzer testified that he executed a traffic
stop of defendant’s vehicle on November 14, 2014, after he observed that defendant’s rear
license plate was obstructed and that only two digits of the license plate could be read.
Photographs entered into evidence showed that defendant’s license plate was obstructed by the
straps of an empty bicycle rack. A video of the traffic stop entered into evidence showed that
straps of the bicycle rack remained secured over the license plate, did not move as the car
traveled on the highway, and obscured at least two digits of the license plate from every angle.
¶9 Upon stopping defendant’s vehicle, Veryzer obtained defendant’s passport because
defendant did not have his driver’s license with him. Veryzer also 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, on November 16,
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2014. Veryzer asked defendant to sit in the front passenger seat of his squad car so that Veryzer
could speak with defendant and determine if defendant was authorized to drive the vehicle. At
the same time, Veryzer checked for defendant’s driver’s license information via his
telecommunications system. Veryzer 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, Daniel Melendez, 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 Veryzer 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.
¶ 10 Veryzer testified regarding the procedure for walking the canine around a vehicle, which
Veryzer had performed on defendant’s vehicle. Veryzer 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. Veryzer 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. Veryzer would then walk the canine around the vehicle twice counterclockwise,
returning to the front the vehicle. Veryzer testified that 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. Veryzer 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
5
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.
¶ 11 After his canine positively alerted to the presence of drugs in defendant’s vehicle,
Veryzer then informed defendant that the canine had alerted on his vehicle and a probable cause
search would be conducted. For approximately 20 minutes, Veryzer and Johnson searched
defendant’s vehicle. Veryzer testified that he and Trooper Johnson 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 Veryzer sticking a wedge into the doors to be able to see into
the doors.
¶ 12 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. Veryzer also indicated that 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.
¶ 13 During the search of the vehicle, receipts for fast food, gas, and a hotel room were found.
The rental agreement and receipts showed that the vehicle was rented on November 9, 2014, at
7:59 p.m. at the Los Angeles airport and stops were made in Los Angeles, at 6:32 a.m. on
November 12, 2014; in Las Vegas, Nevada, on November 12, 2014; in St. George, Utah, at 6:38
a.m. on November 13, 2014; overnight at a hotel located in the middle of Colorado (Frisco,
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Colorado); in Frisco, Colorado, at approximately 7 a.m. on November 14, 2014; in the northeast
part of Colorado (Atwood, Colorado) on November 14, 2014; in Elm Creek, Nebraska, at 2:21
p.m. on November 14, 2014; in Shelby, Iowa, on November 14, 2014; and in Walcott, Iowa, at
9:51 p.m. on November 14, 2014. All purchases were made in cash. Defendant was stopped by
Veryzer, in Illinois, at 10:59 p.m. on November 14, 2014.
¶ 14 Veryzer testified that he had been employed as a certified canine handler with the Illinois
State Police for four years and had been a trooper with the Illinois State Police for seven years.
Veryzer had taken a 10-week certification course with his canine partner. He also completed
over 305 hours of criminal patrol training for the interdiction of terrorists and stolen vehicles and
the seizure of narcotics, guns, and currency from trafficking of illegal narcotics, guns, and stolen
vehicles. Veryzer had personally seized approximately 46 large loads of narcotics and was on
scene with other officers during drug seizures, and he was able to see where different narcotics
were hidden in the various vehicles.
¶ 15 Veryzer testified, based upon his experience and training, that the cocaine and heroin
drug trafficking flow originates on the west coast and travels toward the east coast via interstate
highways, including I-80, and the currency for those drug transactions returns from the east to
the west. Veryzer testified that it was common for people transporting the narcotics to be in
third-party rental vehicles to allow the transporters to plausibly deny knowledge of the narcotics
being in the vehicle. Veryzer also testified that it was common for narcotic transporters to pay
for expenses using cash and to keep receipts to prove their expenses.
¶ 16 Veryzer testified that once he began searching defendant’s vehicle at the police station, it
took 10 to 15 minutes to find the drugs in the empty space located under the hood of the car and
near the base of the windshield. He explained that finding the drugs took as long as it did
7
because, once an “in-depth” search was undertaken, everything was done in “a methodical
manner.” Once Veryzer had searched defendant’s luggage and other places in or around the
vehicle where he had discovered drugs in other vehicle searches in the past, Veryzer continued
searching other locations of the vehicle. 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. Veryzer had never encountered
a drug seizure with drugs hidden in that particular location of a vehicle.
¶ 17 At the close of the State’s evidence, defendant made a motion for a directed verdict,
arguing that the State was unable to prove defendant had knowledge of the drugs in the vehicle.
The trial court denied the motion, finding that taking all reasonable inferences from the evidence
in the light most favorable to the State, a rational fact finder could find the defendant guilty.
Defendant chose not to testify. The jury found defendant guilty on all charged counts. Defendant
was convicted on two counts of controlled substance trafficking and was sentenced to two
concurrent 40-year terms of imprisonment. Defendant appealed.
¶ 18 ANALYSIS
¶ 19 I. Traffic Stop
¶ 20 On appeal, defendant argues the trial court erred in denying his motion to suppress
because the initial stop of his vehicle was unlawful. The State argues the trial court properly
denied defendant’s motion to suppress evidence.
¶ 21 Both the fourth amendment of the United States Constitution, applicable to the state
through the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961); People v. James, 163
8
Ill. 2d 302, 311 (1994)), and article I, section 6, of the Illinois Constitution of 1970 guarantee
Illinois citizens the right to be free from unreasonable searches and seizures. U.S. Const., amend.
IV; Ill. Const. 1970, art. I, § 6; Gaytan, 2015 IL 116223, ¶ 20. The constitutional safeguard of
protecting citizens from unreasonable searches and seizures protects against unreasonable
warrantless searches. People v. Stout, 106 Ill. 2d 77, 86 (1985). A stop of a vehicle based on a
suspected violation of the law constitutes a seizure. Gaytan, 2015 IL 116223, ¶ 20. For a traffic
stop to comport with the requirement of reasonableness under constitutional guarantees, the
police officer conducting the stop must have at least a reasonable, articulable suspicion that a
violation of the law has occurred. Id. If reasonable suspicion is lacking, the traffic stop is
unconstitutional, and any evidence obtained as a result of the stop will generally be inadmissible.
Id.
¶ 22 When reviewing a trial court’s ruling on a motion to suppress evidence, a two-part test is
applied so that (1) the trial court’s factual findings are upheld unless they are against the manifest
weight of the evidence and (2) the trial court’s ultimate legal conclusion as to whether
suppression is warranted is reviewed de novo. Id. ¶ 18. At a hearing on a motion to suppress
brought by defendant claiming he was aggrieved by an illegal search and seizure, the burden is
on that defendant to prove that the search and seizure were unlawful. Stout, 106 Ill. 2d at 88.
¶ 23 Here, the State argues that the traffic stop in this case was lawful based on Veryzer’s
reasonable suspicion that the empty bicycle rack on defendant’s vehicle was an obstruction to the
license plate in violation of section 3-413(b) of the Vehicle Code. In construing a statute, the
primary objective is to give effect to the legislature’s intent, with the presumption that the
legislature did not intend to create absurd, inconvenient, or unjust results. Gaytan, 2015 IL
9
116223, ¶ 23. The best indication of the legislature’s intent is the language of the statute. Id. The
construction of a statute is a question of law to which we apply de novo review. Id.
¶ 24 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)). Gaytan, 2015 IL 116223, ¶¶ 30-31, 39. 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. Having concluded that section 3-431(b) was ambiguous, the Illinois Supreme
Court “encourage[d] the General Assembly to revisit this statute,” noting that it would be helpful
if the legislature clarified what equipment and accessories attached to a vehicle near the license
plate were prohibited. Id. ¶ 40. Under the circumstances of that case, wherein the statute was
found to be ambiguous, 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. Id. ¶ 48.
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¶ 25 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.
¶ 26 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.
We need not address the question of whether the flapping ends of the straps constituted an
obstruction under section 3-413(b) 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 where Veryzer reasonably believed the condition of defendant’s
vehicle violated section 3-413(b).
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¶ 27 Defendant additionally argues that his counsel provided ineffective assistance by
indicating that the Illinois Supreme Court’s decision in Gaytan was not supportive of the
argument in defendant’s motion to suppress that the traffic stop was unlawful. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (providing that claim of ineffective assistance has two
elements: (1) counsel’s performance fell below an objective standard of reasonableness and
(2) the deficient performance prejudiced the defendant). As we discussed above, the condition of
defendant’s vehicle at the time of the traffic stop in this case violated section 3-413(b) of the
Vehicle Code. The Illinois Supreme Court in Gaytan held that the prior version of section 3­
413(b) was ambiguous and concluded that it was objectively reasonable for the officers to
believe that the trailer hitch in that case violated section 3-413(b). See Gaytan, 2015 IL 116223,
¶¶ 30-31, 48. Under the Gaytan decision, even if the bicycle rack were not a prohibited
obstruction, Veryzer’s understanding of the statute would have been objectively reasonable to
provide the reasonable suspicion necessary to effectuate a lawful stop of defendant’s vehicle.
Therefore, the decision of defendant’s counsel to refrain from presenting any legal arguments
based on the Gaytan decision in support of defendant’s motion to suppress was reasonable, and
his performance did not prejudice defendant.
¶ 28 II. Dissipation of Probable Cause
¶ 29 For the first time, on appeal, defendant argues that any probable cause developed during
the course of the traffic stop dissipated after no illegal drugs were found in the vehicle during the
roadside search and prior to the vehicle being moved to another location. Defendant concedes
that he did not preserve this claimed error for appeal. See People v. Enoch, 122 Ill. 2d 176, 186
(1988) (both an objection at the time of trial and the inclusion of the issue in a posttrial motion
are required to preserve an issue for review). In light of his forfeiture of this claim for appellate
12
review, defendant requests that we review the purported error for plain error or, in the
alternative, as a claim of ineffective assistance of counsel.
¶ 30 Under the plain-error doctrine a reviewing court may consider unpreserved error when
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the
error alone threatened to tip the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurred and that error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of
the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski,
225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).
Under both prongs of the plain error doctrine, the burden of persuasion remains with defendant.
People v. Walker, 232 Ill. 2d 113, 124 (2009). The first step in a plain error analysis is for the
reviewing court to determine whether any error occurred. Id.
¶ 31 The constitutional safeguards of article I, section 6, of the Illinois Constitution, and the
fourth amendment to the United States Constitution, prohibit warrantless searches that are
unreasonable. Stout, 106 Ill. 2d at 86 (citing United States v. Rabinowitz, 339 U.S. 56 (1950);
People v. Watkins, 19 Ill. 2d 11 (1960)). The critical issue is whether the situation that confronts
the officer justifies the search. Id. What constitutes probable cause for a search or seizure must
be determined from the standpoint of the arresting officer, with his skill and knowledge, rather
than from the standpoint of the average citizen under similar circumstances. Id. Police officers
often must act upon a quick appraisal of the data before them, and the reasonableness of the
officers’ conduct must be judged on the basis of their responsibility to prevent crime and to catch
criminals. Id. at 86-87.
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¶ 32 When an officer has sufficient facts to support probable cause that a vehicle contains
contraband, the vehicle may be searched without a warrant, including any interior compartments
of the vehicle that might reasonably contain the contraband. People v. Contreras, 2014 IL App
(1st) 131889, ¶ 28. Probable cause is a fluid construct that is dependent upon the assessment of
probabilities in a particular factual context, with the underlying principle being the reasonable
belief of guilt. Id. ¶ 29. In determining whether probable cause for a search existed, a court
examines the events leading up to the search or seizure viewed from the standpoint of an
objectively reasonable law enforcement officer. Id.
¶ 33 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. See id. ¶ 37 (a delay in searching a vehicle until it is relocated to a police
station does not diminish the original justification for the warrantless search); People v. Parker,
354 Ill. App. 3d 40, 46 (2004) (the justification for a warrantless search does not diminish upon
relocation of the vehicle to a police station; holding that officers were not required to obtain a
search warrant before moving a car a short distance prior to searching the vehicle). 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
14
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.
¶ 34 In arguing that the probable cause in this case had dissipated after the troopers failed to
find contraband during the roadside search, defendant cites the decision set forth by another
panel of this court in People v. Pulido, 2017 IL App (3d) 150215. In Pulido, defendant’s vehicle
was stopped for speeding by an Illinois state trooper. Id. ¶ 14. 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. Id. ¶¶ 15, 17. Both
troopers searched the inside of the vehicle and the engine compartment, and they found no
narcotics. Id. ¶ 21. 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. Id. ¶¶ 22-23. Tubes
containing methamphetamines wrapped with black tape were removed from the air filter of the
defendant’s vehicle. Id. ¶ 26. 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. Id. ¶ 43.
¶ 35 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.
15
We do not believe that probable cause had dissipated just because the drugs were so well hidden
and certain surrounding conditions made completing a thorough roadside search of the vehicle
impractical. As discussed above, probable cause continued to exist after the vehicle was
relocated. 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.
¶ 36 Additionally, in light of our holding that probable cause had not dissipated, we cannot say
that defendant’s counsel was ineffective for failing to assert such an argument in defendant’s
motion to suppress. People v. Patterson, 217 Ill. 2d 407, 438 (2005) (to establish prejudice from
counsel’s failure to file a motion to suppress evidence, a defendant must show a reasonable
probability that the motion would have been granted and the outcome of the trial would have
been different). Accordingly, we affirm the judgment of the trial court.
¶ 37 CONCLUSION
¶ 38 For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed.
¶ 39 Affirmed.
¶ 40 JUSTICE McDADE, dissenting:
¶ 41 The majority has affirmed the conviction of defendant, Steven Varnauskas, on two counts
of controlled substance trafficking and his two concurrent 40 year sentences. In reaching that
decision, the majority found that (1) the officer had probable cause to make the initial traffic stop
because he had a reasonable belief that the statute pursuant to which he acted prohibited what it,
in fact, did not and (2) the probable cause generated by the canine drug alert was sufficient to
allow the police to move the car from the highway to the police station to continue the previously
16
abortive search for drugs. For the reasons that follow, I disagree with both findings and
respectfully dissent.
¶ 42 The facts make clear that this was not a traffic stop effected to protect the safety of other
drivers on the road; it was a criminal investigation followed by a search without formal fourth
amendment protections. Officer Veryzer testified that he was specially trained for criminal
“interdiction” patrols for the purpose of trolling the highway to discover and seize terrorists,
stolen vehicles, narcotics, guns, and the currency derived from the sale of such contraband. He
had completed over 305 hours of such training and had personally seized about 46 large loads of
narcotics and participated in seizures by others. See generally supra ¶¶ 14-16.
¶ 43 Veryzer also explained that he had completed 10 weeks of training with his canine
partner, he had been a certified canine handler for four years, and he and his dog had a
procedural routine for a sniff. He did not explain why his dog wears two collars, what the
purpose of the second collar might be, or why his trained dog did not alert the first time around
defendant’s vehicle but did on its second rotation.
¶ 44 While sitting in the median of I-80 during his November 14, 2014, patrol, Veryzer
observed defendant’s vehicle pass by. Although it was 11 p.m. and allegedly too dark on scene to
find narcotics in the vehicle even at close range, he was able to see that the license plate was
partially obscured by an empty bicycle rack on the back of the car. He executed a traffic stop for
this suspected violation of section 3-413(b) of the Vehicle Code (625 ILCS 5/3-413(b) (West
2014)). Ostensibly because of something about this traffic violation, he walked his dog around
the car for a drug sniff. The dog alerted the second time around, and Veryzer and a fellow officer
who had arrived at the scene unsolicited began a search. During this search, characterized by the
majority as “cursory” (supra ¶ 11), they examined general locations where they had found drugs
17
stashed in earlier searches of other cars. These included the inside of all bags and all luggage in
the trunk, the interior of the car, under the seats, under the dashboard, and inside the doors—an
area accessed through Veryzer’s use of a wedge to pry the doors apart and expose their interiors.
Then, deciding it was too cold, too dark, and too unsafe to continue the search on the side of the
highway, they moved the car to the Geneseo Police Department and quickly—within 10 to 15
minutes—discovered two kilograms of heroin and one kilogram of cocaine by the engine below
the windshield.
¶ 45 Defendant was charged, his motion to suppress evidence was denied, and he was tried
and convicted by a jury. His two convictions and resultant 40-year sentences are the subjects of
this direct appeal.
¶ 46 With regard to the first issue, I disagree with the majority’s finding that the trial court
properly denied the motion to suppress evidence based on the supreme court’s decision in People
v. Gaytan, 2015 IL 116223. That decision analyzed the version of section 3-413(b) in effect at
the time Gaytan had been arrested, not the amended version in effect when Varnauskas was
stopped. The supreme court’s analysis in Gaytan agreed with the analysis of the Fourth District,
concluding that (1) the statute’s language was ambiguous; (2) applying the rule of lenity, the
statute, properly interpreted, only prohibited obstruction by materials actually attached to the
license plate; and (3) the defendant had not actually violated the statute. However, the court also
found that, because of the ambiguity, the officer’s belief that Gaytan was in violation was
objectively reasonable and the stop was, therefore, valid.
¶ 47 In the instant case, the majority has considered the language of the amended statute in
effect at the time Varnauskas was stopped and has concluded
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“[t]he 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.”
Supra ¶ 25.
I agree that the revised language, construed in its totality and in context, does remove the prior
version’s ambiguity, but I would find the amended statute clearly and unambiguously establishes
that the only obstructions prohibited by the statute are those caused by materials actually affixed
to the license plate.
¶ 48 The statute in effect at the time Veryzer stopped Varnauskas on November 14, 2014, was
the version as amended by Public Act 97-743 (eff. Jan. 1, 2013). It provided, in relevant part, as
follows. Additions are shown in italics, and deletions are stricken through.
Ҥ 3-413. Display of registration plates, registration stickers, and
drive-away permits; registration plate covers.
***
(b) 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, including,
but not limited to, glass covers and plastic covers. A registration
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plate on a motorcycle may be mounted vertically as long as it is
otherwise clearly visible. 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.
***
(g) A person may not operate any motor vehicle that is equipped
with registration plate covers. A violation of this subsection (g) or
a similar provision of a local ordinance is an offense against laws
and ordinances regulating the movement of traffic.
(h) A person may not sell or offer for sale a registration plate
cover. A violation of this subsection (h) is a business offense.
(i) A person may not advertise for the purpose of promoting the
sale of registration plate covers. A violation of this subsection (i) is
a business offense.
(j) A person may not modify the original manufacturer’s mounting
location of the rear registration plate on any vehicle so as to
conceal the registration or to knowingly cause it to be obstructed
in an effort to hinder a peace officer from obtaining the
registration for the enforcement of a violation of this Code, Section
27.1 of the Toll Highway Act concerning a toll evasion, or any
municipal ordinance. Modifications prohibited by this subsection
(j) include but are not limited to the use of an electronic device. A
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violation of this subsection (j) is a Class A misdemeanor.” Pub.
Act 97-743 (eff. Jan. 1, 2013) (amending 625 ILCS 5/3-413).
As can be seen, new subsections (g)-(i) replaced and amplified the clause concerning registration
plate covers, which had been deleted from subsection (b). New subsection (j) prohibited any
modification of the mounting location of the rear registration plate so as to conceal or obstruct
the view of the registration plate.
¶ 49 There are three reasons why I believe the modified statute unambiguously addresses only
the proper placement and display of license plates, registration stickers, and drive-away permits
and penalizes only their improper placement and display. First is the plain language of the
section’s title and provisions, which conspicuously makes no mention of obstructions caused by
attaching foreign objects to the vehicle itself.
¶ 50 My second reason derives from perceived skepticism of the Gaytan court about the reach
of the statute suggested by the State in that case. The court noted how far-reaching such a
restriction would be: “even a public bus equipped with a bicycle rack on its front would be
unlawful under the State’s reading of section 3-413(b) if the rack were to obstruct the license
plate.” Gaytan, 2015 IL 116223, ¶ 36. The court also said that it was reasonable “to conclude
that the General Assembly did not intend to put companies who rent trailers out of business and
did not intend to further burden the physically disabled by making it illegal for them to use
wheelchair and scooter carriers—particularly when the statute says nothing about these
matters.” (Emphasis added.) Id. ¶ 38.
¶ 51 The third reason is that, even if the statutory language were ambiguous, the legislative
history indicates the amendment was proposed because the Illinois State Police approached the
legislature with some issues regarding registration plate covers. Representative Lisa Dugan
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stated on the date that the bill passed both houses that “this actually makes multiple Amendments
to the Vehicle Code with respect to registration plate covers and motorcycles based on some
issues that the State Police have seen around Illinois to just make things safer and to make [the]
roads safer.” (Emphasis added.) 97th Ill. Gen. Assem., House Proceedings, May 1, 2012, at 14
(statements of Representative Dugan).
¶ 52 For these reasons I would find (1) that the amended version of section 3-413 in effect at
the time Veryzer stopped Varnauskas did not prohibit or criminalize the placement of the bicycle
rack, (2) that Varnauskas was not in actual violation of the statute under which he was charged,
and (3) that it was not objectively reasonable for Officer Veryzer to believe that the empty
bicycle rack on the back of the vehicle was a violation of that statute. I would find the stop was
without probable cause and therefore unjustified and improper and that the motion to suppress
should have been granted.
¶ 53 Even though, based on my analysis of the first issue, there is no need to reach the second,
I feel compelled to briefly address the majority’s expressed refusal (supra ¶ 35) to follow this
court’s earlier decision in People v. Pulido, 2017 IL App (3d) 150215. In the instant case, when
the decision was made to move defendant’s vehicle to the Geneseo Police Department, the
trooper had obviously completed any traffic mission he claimed to have had. Even if it had not
been at the beginning, this was now nothing more than a drug investigation. If the officer
believed he had probable cause for a search, he needed to get a warrant. Defendant had that right
under the fourth amendment to the United States Constitution. Whatever urgency or exigency
existed for a warrantless search on the side of the road dissipated once the vehicle and defendant
were removed to the safety and less pressing conditions of the police station. For all of the
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reasons set out in its analysis, I believe Pulido to have been properly decided, and I dissent from
the majority’s contrary holding.
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