People v. Bartelt ( 2011 )

Docket No. 107276.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
_________________
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CHERYL L. BARTELT, Appellant.
Opinion filed March 24, 2011.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas and Garman concurred
in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justices Burke
and Theis.
OPINION
After a lawful traffic stop, a police officer performed a set-up
procedure, which entailed ordering the driver, defendant, Cheryl L.
Bartelt, to roll up her truck’s windows and turn the ventilation
system’s blowers on high before a second officer conducted a canine
sniff of the exterior of her truck. The dog alerted on both doors of the
truck, and a subsequent search of the truck resulted in discovery of
drug evidence. Defendant was arrested and charged with unlawful
possession of methamphetamine (720 ILCS 646/60(b)(1) (West
2006)). She filed a motion to suppress the evidence recovered during
the traffic stop. The circuit court of Adams County granted the
motion to suppress. The State filed an interlocutory appeal pursuant
to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). A
majority of the appellate court reversed the circuit court’s order
suppressing the evidence. 384 Ill. App. 3d 1028. This appeal followed.
We are asked to determine whether the officers’ actions in
ordering defendant to roll up her windows and turn the blowers on
high before conducting a dog sniff of the truck’s exterior constituted
an unreasonable search under the fourth amendment. We hold that it
did not. Accordingly, we affirm the judgment of the appellate court,
reverse the judgment of the circuit court, and remand to the circuit
court for further proceedings consistent with this opinion.
BACKGROUND
The evidence introduced at the hearing on the motion to suppress
can be summarized as follows. On the evening of July 29, 2006,
Quincy police officer Mike Tyler, who had received information that
defendant was a methamphetamine user, conducted surveillance of her
apartment. At 6:45 p.m., he saw a pickup truck parked on the
sidewalk in front of her apartment, ran the plates, and learned the
truck was registered to her. At 8:15 p.m., he saw her and a man, later
identified as Josh Miracle, come out of the apartment and place white
trash bags in the back of the truck. Defendant got in the driver’s seat
and Miracle in the passenger seat. Defendant drove away, and Officer
Tyler followed. He then alerted Quincy police officer Darin Kent, a
member of the canine unit, that he intended to make a traffic stop and
asked Officer Kent to conduct a dog sniff during the stop. Officer
Tyler activated his lights when defendant pulled into a nearby gas
station. He radioed Officer Kent that he had made the stop and
provided the location.
Officer Tyler then approached defendant’s truck and told her that
she had violated the Illinois Vehicle Code by parking her truck on the
sidewalk in front of her apartment for over an hour and a half. He
asked for and obtained her driver’s license and insurance information
and returned to his squad car to conduct a computer check of this
information. However, within approximately 20 seconds after he
returned to his car, and within three minutes of the initial stop, Officer
Kent arrived at the scene with his narcotics detection dog, Max.
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Officer Kent is a certified canine handler for the department’s
street crimes unit. He follows the format for dog sniffs taught by the
Illinois State Police canine unit and taught his fellow officers to follow
the same procedures. One such procedure is a set-up procedure,
which is done before the dog is taken around the vehicle. The set-up
procedure entails telling the driver to turn off the engine; turn the key
on auxiliary, which allows the blowers to work; turn the blowers on
high; roll up the windows; and close the doors. The purpose of the
set-up procedure is to force air inside the vehicle out through the
seams, where the dogs are trained to sniff.
Officer Kent asked Officer Tyler to set up defendant’s truck for
the dog sniff. Officer Tyler reapproached defendant, who was sitting
in her truck, and told her to roll up her windows and turn the blowers
on high. She complied, and Officer Kent conducted the dog sniff.
Officer Kent begins a dog sniff by walking the dog parallel to the
vehicle, beginning at the front and proceeding counterclockwise for
two passes. The dog signals an alert by turning perpendicular to the
vehicle. In addition, the dog’s breathing will change, and his sniffing
will intensify or become more rapid. Finally, the dog will put a paw
out, look at the handler, and start barking. Probable cause is obtained
through a dog’s positive alert.
Officer Tyler had returned to his squad car to run defendant’s
information but had not started writing the ticket when Officer Kent
informed him that Max had alerted on both doors of the truck. Officer
Tyler went back to defendant’s truck and told her and Miracle to exit
the truck. The officers obtained consent from both defendant and
Miracle to search their persons. Nothing was found.
A subsequent search of the truck and defendant’s purse, which
was inside, revealed a bag containing a digital scale with white powder
residue; several burnt pieces of tinfoil; and a pen casing, with a burnt
end and a powder substance on the inside. Defendant was arrested and
charged with unlawful possession of methamphetamine (720 ILCS
646/60(b)(1) (West 2006)).
Defendant filed a motion to suppress the evidence recovered
during the traffic stop. During argument on the motion, defense
counsel stated that before the hearing, he was unaware that a set-up
procedure was used to facilitate the dog sniff. Therefore, in his
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suppression motion, counsel had argued that Officer Tyler’s stop of
defendant was an illegal seizure because he had manipulated the
timing of the traffic stop by waiting for defendant to get into her truck
and drive off, instead of knocking on the door of her apartment and
issuing her a citation. Counsel had also focused on Officer Tyler’s
admission that he had intended to search the truck, hoping to find
more incriminating evidence.
The circuit court rejected defendant’s argument regarding Officer
Tyler’s motivation. However, the court found the set-up procedure
more interesting, noting that this was the first instance the court, the
prosecutor, or defense counsel had encountered such a procedure.
Because the court was curious as to whether the officers had the
authority to direct defendant to roll up her windows and turn the
blowers on high, it continued the matter to allow briefing on the issue.
When the hearing resumed, the parties informed the court that
they agreed that the United States Supreme Court’s decision in
Illinois v. Caballes, 543 U.S. 405 (2005), authorizes police to
conduct a dog sniff and that a dog sniff ordinarily is not a search. They
also agreed that there was no undue delay occasioned by the dog sniff,
and no one disputed Max’s qualification to perform the dog sniff.
The parties disagreed, however, as to whether the officers had the
authority to order defendant to comply with the set-up procedure
before conducting the dog sniff. Although the propriety of the set-up
procedure appeared to be a matter of first impression in Illinois, the
State cited to United States v. Ladeaux, 454 F.3d 1107 (10th Cir.
2006), as being factually analogous, to the extent that the defendant
challenged the validity of the use of a set-up procedure identical to
that employed here during a routine traffic stop. However, although
the circuit court and the parties discussed United States v. Ladeaux’s
focus on whether police mandated compliance with the
procedure–which would render it an additional seizure–they noted
that the Tenth Circuit had remanded the cause to the district court for
this determination and that the results had not yet been reported.
As an outgrowth of this discussion, the State conceded that
because Officer Tyler could not recall exactly how he phrased his
statement to roll up the windows and turn on the blowers, and given
that Officer Kent testified that he instructed his fellow officers not to
give motorists a choice of complying, the court could assume that
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Officer Tyler told defendant to do it. Nevertheless, the State
contended that this was not controlling, asserting that because the set-
up procedure is a minimally intrusive, “recognized method of
instruction,” it did not violate the fourth amendment.
The circuit court granted defendant’s motion to suppress. Initially,
the court found that the traffic stop was justified based on defendant’s
violation of the Illinois Vehicle Code. In addition, the court found that
the stop was not unreasonably extended by the calling of the canine
unit to the scene. The court stated that the issue was whether
defendant’s fourth amendment rights were violated by the officers
instructing her to roll up her windows and turn the blowers on high.
The circuit court held that the officers had no probable cause to search
the truck before Max alerted.
The circuit court found Illinois v. Caballes distinguishable
because, in that case, the dog sniff occurred on the exterior of the
vehicle. In the present case, although Max alerted from the outside of
defendant’s truck, he “had some help” in that the “air from the interior
was being forced out of the truck by the turned-up blowers,” and
“[t]he blowers were turned up by the defendant, but only upon the
demand of the officers.” The court concluded that by requiring
defendant to roll up the windows and turn the blowers on high, the
officers, in effect, moved and manipulated the air within the truck that
would not otherwise have been subject to Max’s plain smell. Although
the court recognized that Max was still outside defendant’s truck
when he alerted, the court found that, in effect, Max was placed inside
the truck by the officers. The circuit court concluded that directing
defendant to roll up her windows and turn the blowers on high turned
the dog sniff into an unreasonable search under the fourth amendment.
The State filed an interlocutory appeal. The State argued that the
circuit court’s decision should be reversed because the officers’ orders
to roll up the windows and turn the blowers on high did not change
the nature of the dog sniff to an unlawful search because (1) Max
remained outside the truck and (2) defendant had no legitimate
expectation of privacy in the potentially incriminating odors emanating
from her lawfully stopped truck.
Initially, the appellate court noted that the arguments on appeal
were limited to the set-up procedure employed by the officers before
the dog sniff and that no other portion of the stop was at issue. 384
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Ill. App. 3d at 1031. The appellate court stated the issue as “whether
the police order to defendant to roll up her windows and turn the
blower to high intruded upon a legitimate privacy interest and
constituted a search under the fourth amendment.” Id. at 1031-32.
A divided appellate court reversed the circuit court’s suppression
order. Id. at 1036. Upholding the validity of the set-up procedure, the
majority found it “to be a practical tool of police work that does not
interfere with the reasonable expectation of privacy in the interior of
defendant’s [truck].” Id. at 1035. The appellate court noted that,
under Illinois v. Caballes, a dog sniff conducted during a concededly
lawful traffic stop that reveals no information other than the location
of a substance that no one has the right to possess does not violate the
fourth amendment. Id. The appellate court concluded as follows:
“The set-up procedure is quick and nonintrusive; thus, it
does not impermissibly lengthen the duration of the stop. It
also ensures the canine remains outside the vehicle during the
sniff, as both the doors and windows are closed. This is a
practical technique that balances a defendant’s reasonable
expectation of privacy with the opportunity to allow law
enforcement to ferret out crime. No fourth-amendment
violation occurs when an officer lawfully investigating a traffic
violation orders the occupant to roll up the windows and turn
on the blowers to facilitate a dog sniff.” Id. at 1035-36.
The dissenting justice would have affirmed the circuit court’s
suppression order, concluding as follows:
“ ‘Plain view’ includes items that would be within the ‘plain
smell’ of a dog at the exterior of a vehicle. In the present case,
the officer impermissibly went beyond what was in plain view
and ordered the occupants of the vehicle to engage in testing.”
Id. at 1036 (Cook, J., dissenting).
This court allowed defendant’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. Feb. 26, 2010).
ANALYSIS
The fourth amendment to the United States Constitution protects
the “right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” U.S. Const.,
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amend. IV; accord Ill. Const. 1970, art. I, §6. 1 Thus, the guarantees
of the fourth amendment attach where a “search” or “seizure” takes
place. “A ‘search’ occurs when an expectation of privacy that society
is prepared to consider reasonable is infringed.” United States v.
Jacobsen, 466 U.S. 109, 113 (1984). In contrast, a “seizure” occurs
when “the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429,
439 (1991).
A circuit court’s ruling on a motion to suppress evidence is
reviewed under the two-part test adopted by the Supreme Court in
Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Harris,
228 Ill. 2d 222, 230 (2008). The circuit court’s factual findings may
be rejected only if they are against the manifest weight of the
evidence. Id. However, the reviewing court may assess the established
facts in relation to the issues presented and may draw its own
conclusions in deciding what relief, if any, should be granted. Id.
Accordingly, the circuit court’s ultimate ruling as to whether
suppression is warranted is reviewed de novo. Id.
The issue presented in this appeal is narrow. There is no dispute
regarding the circuit court’s factual finding that the initial traffic stop
was justified by Officer Tyler’s observation of defendant’s violation
of the Illinois Vehicle Code (625 ILCS 5/11–1303(a)(1)(b) (West
2006) (no person shall stop, stand, or park a vehicle on a sidewalk)),
and that the seizure, therefore, was reasonable. See Whren v. United
States, 517 U.S. 806, 810 (1996) (“[T]he decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred.”).
In addition, it is undisputed that the officers had the authority to
conduct an exterior dog sniff of defendant’s truck during the traffic
1
Defendant limits her argument to the fourth amendment to the United
States Constitution (U.S. Const., amend. IV) and does not contend that the
search and seizure provision of article I, section 6, of the Illinois Constitution
(Ill. Const. 1970, art. I, §6) provides broader protection than the fourth
amendment. Accordingly, we confine our analysis to defendant’s fourth
amendment claim.
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stop and that the dog sniff itself was not a search subject to the fourth
amendment. See Illinois v. Caballes, 543 U.S. at 408-10 (holding that
a suspicionless dog sniff conducted during a lawful traffic stop that
reveals no information other than the location of a substance no
individual has any right to possess is not a search subject to the fourth
amendment).
Finally, there is no dispute that Officer Tyler ordered defendant to
comply with the set-up procedure. As noted, the State conceded in the
circuit court that Officer Tyler ordered defendant to perform the
procedure and did not give her the option of refusing to comply.
The only issue on appeal is whether the officers’ actions in
ordering defendant to roll up her windows and turn the blowers on
high before conducting the dog sniff of the truck’s exterior constituted
an unreasonable search under the fourth amendment. This seems to be
an issue of first impression nationwide because the parties have not
cited, nor has our research revealed, any decisions that have addressed
the issue.
The dissent would like us to recharacterize the issue as whether
the officers’ actions in ordering defendant to roll up her windows and
turn the blowers on high before conducting the dog sniff of the truck’s
exterior constituted an unreasonable seizure under the fourth
amendment. We decline to do so because it is clear that, in her briefs
and oral arguments before this court, defendant argues that the
officers’ actions in ordering her to roll up her windows and turn the
blowers on high before conducting the dog sniff of the truck’s exterior
constituted an unreasonable search, not an unreasonable seizure.
For example, in the “General Principles” portion of her brief,
defendant includes exclusively fourth amendment search principles.
She explains that “[a] search for purposes of the [f]ourth [a]mendment
occurs when government officials violate an individual’s legitimate
expectation of privacy.” Appellant’s Br. 18. She sets forth general
“expectation of privacy” principles and explains what level of privacy
can reasonably be expected in relation to an automobile. Appellant’s
Br. 18-21. She states that “[a]t issue here is whether the police ‘set
up’ procedure created an unreasonable search under the fourth
amendment.” (Emphasis added.) Appellant’s Br. 20-21. Notably, she
does not explain when a “seizure” occurs for purposes of the fourth
amendment.
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Similarly, the “Analysis” section of her brief is devoted exclusively
to whether the set-up procedure resulted in an unconstitutional search
of the interior of her truck. She devotes her entire discussion to fourth
amendment search cases and to arguing that (1) she had a reasonable
expectation of privacy in the interior of her truck and that (2) the set-
up procedure therefore resulted in an unconstitutional search of her
truck. Even her brief discussion of United States v. Ladeaux leads her
to conclude that “[t]he resulting sniff thus became a search subject to
the fourth amendment.” (Emphasis added.) Appellant’s Br. 22. She
did not argue that the officer’s order to roll up the windows and turn
the blowers on high amounted to a seizure for fourth amendment
purposes–that is, that the order communicated to her that she was not
free to decline the request or otherwise terminate the encounter. See
Bostick, 501 U.S. at 439.
Although she asserts in the very last paragraph of the “Analysis”
section of her brief that “Officer Tyler impermissibly acted by turning
the traffic stop into an illegal seizure by ordering [her] to place the
vehicle on auxiliary power, to turn the vents to high, and to keep all
doors and windows closed” (appellant’s br. 27), she offers no support
for that assertion, either factually or legally. In fact, the only authority
that she cites in support of that assertion is the United States Supreme
Court’s pronouncement in Horton v. California, 496 U.S. 128 (1990),
that “a ‘search’ compromises an individual interest in privacy.”
(Emphasis added.) Appellant’s Br. 27. Even here, then, she is making
a search argument. Reading the paragraph as a whole, and given that
her sole citation is to a fourth amendment search principle, we assume
that what she is attempting to argue is that, as a result of the unlawful
search, the otherwise lawful seizure was transformed into an unlawful
seizure. This is very different from the seizure argument addressed in
the dissent.
The final section of the State’s brief is titled “Defendant Makes No
Argument That The Set-Up Procedure Was A Seizure.” Appellee’s
Br. 26. This section is a direct response to the isolated sentence
described above, and the State obviously included it to avoid any
possibility that this court would use that sentence as a basis for
treating this as a seizure case rather than a search case. Notably, in her
reply brief, defendant does not contest or even respond to this
argument, offering instead only the same “expectation of privacy” and
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“search” arguments that she offered in her opening brief. While not
binding, such silence certainly underscores what is otherwise
apparent–that defendant is not arguing that the orders relating to the
set-up procedure amounted to an unlawful seizure.
Finally, at oral argument before this court, defense counsel made
it abundantly clear that defendant’s argument is that the set-up
procedure was an unlawful search, not an unlawful seizure.
Accordingly, we confine our analysis to defendant's search argument and
save the seizure analysis for a case where the issue is properly before us and
has been fully briefed and argued.
As stated previously, “[a] ‘search’ occurs when an expectation of
privacy that society is prepared to consider reasonable is infringed.”
Jacobsen, 466 U.S. at 113. Consequently, “[o]fficial conduct that
does not ‘compromise any legitimate interest in privacy’ is not a
search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408
(quoting Jacobsen, 466 U.S. at 123).
The Supreme Court has held that “any interest in possessing
contraband cannot be deemed ‘legitimate,’ and thus, governmental
conduct that only reveals the possession of contraband ‘compromises
no legitimate privacy interest.’ ” Id. (quoting Jacobsen, 466 U.S. at
123). The Court explained that “the expectation ‘that certain facts will
not come to the attention of the authorities’ is not the same as an
interest in ‘privacy that society is prepared to consider reasonable.’ ”
Id. at 408-09 (quoting Jacobsen, 466 U.S. at 122). The Court noted
that, in United States v. Place, 462 U.S. 696 (1983), it “treated a
canine sniff by a well-trained narcotics-detection dog as ‘sui generis’
because it ‘discloses only the presence or absence of narcotics, a
contraband item.’ ” Caballes, 543 U.S. at 409 (quoting Place, 462
U.S. at 707).
In Illinois v. Caballes, the Court held that “the use of a well-
trained narcotics-detection dog–one that ‘does not expose non-
contraband items that otherwise would remain hidden from public
view,’ [citation]–during a lawful traffic stop generally does not
implicate legitimate privacy interests.” Id. The Court explained:
“In this case, the dog sniff was performed on the exterior of
respondent’s car while he was lawfully seized for a traffic
violation. Any intrusion on respondent’s privacy expectations
does not rise to the level of a constitutionally cognizable
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infringement.
*** A dog sniff conducted during a concededly lawful
traffic stop that reveals no information other than the location
of a substance that no individual has any right to possess does
not violate the Fourth Amendment.” Caballes, 543 U.S. at
409-10.
Similarly, in the present case, the dog sniff was conducted on the
exterior of defendant’s truck while she was lawfully seized for a traffic
violation. Even though the officers ordered her to roll up her windows
and turn the blowers on high before they conducted the dog sniff, any
intrusion on her “privacy expectations does not rise to the level of a
constitutionally cognizable infringement.” See id. at 409. The dog
sniff revealed “no information other than the location of a substance
that no individual has any right to possess.” See id. at 410.
Accordingly, under Illinois v. Caballes, the dog sniff in the present
case was not a search subject to the fourth amendment because it did
not “ ‘compromise any legitimate interest in privacy.’ ” See id. at 408
(quoting Jacobsen, 466 U.S. at 123).
The set-up procedure at issue in this case is analogous to the
luggage “prepping” procedure approved by the Fifth Circuit in United
States v. Viera, 644 F.2d 509 (5th Cir. 1981). In United States v.
Viera, Drug Enforcement Administration agents “prepped” the
defendants’ suitcases before a dog sniff by pressing them lightly with
the hands and slowly circulating the air, the purpose of which was to
procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth
Circuit rejected the defendants’ argument that the “prepping”
procedure was a search in violation of the fourth amendment, holding
that a dog sniff is not a search within the meaning of the fourth
amendment and that a light press of the hands along the outside of the
suitcases was not sufficiently intrusive to require a different result. Id.
Similarly, in the present case, a dog sniff is not a search within the
meaning of the fourth amendment, and ordering defendant to roll up
her windows and turn the blowers on high before conducting the dog
sniff was not sufficiently intrusive to require a different result. See id.
CONCLUSION
For the foregoing reasons, the judgment of the appellate court is
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affirmed.
Affirmed.
JUSTICE FREEMAN, dissenting:
This appeal squarely presents the question of whether a police
officer’s order to a driver, during a routine traffic stop, to perform a
“set-up” procedure to facilitate a canine sniff for narcotics, is an
unreasonable seizure which violates the fourth amendment. It is my
view that it is. Despite the fact that this precise issue was litigated by
the parties in the circuit court, and even though the majority’s own
recitation of the factual background and procedural history of this
cause repeatedly references seizure principles, my colleagues decline
to analyze this appeal in the context of whether defendant was
subjected to an unreasonable seizure. Instead, they review the
propriety of the police action by inquiring whether the “ordering” of
defendant to perform the set-up procedure is “an unreasonable
search.” Slip op. at 8. Using this inappropriate analytical framework,
the majority holds that there is no constitutional violation. As I agree
with neither the majority’s analysis nor the result, I respectfully
dissent.
I. General Fourth Amendment Principles
The general principles of analysis of claims brought under the
fourth amendment are familiar. The fourth amendment to the United
States Constitution guards the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const., amend. IV; accord Ill. Const.
1970, art. I, §6. Accordingly, the protections of the fourth amendment
attach where a “search” or “seizure” occurs. A “search” takes place
when “an expectation of privacy that society is prepared to consider
reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113
(1984). Because a search affects privacy interests, a search which is
reasonable at its inception may become unreasonable “by virtue of its
intolerable intensity and scope.” Terry v. Ohio, 392 U.S. 1, 17-18
(1968).
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In contrast, a “seizure” occurs when the conduct of police “would
have communicated to a reasonable person that the person was not
free to decline the officers’ requests or otherwise terminate the
encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991); People v.
Luedemann, 222 Ill. 2d 530, 550 (2006). More specifically, a person
may be seized for purposes of the fourth amendment where a law
enforcement officer makes a show of authority and there is submission
to that show of authority (Brendlin v. California, 551 U.S. 249, 254
(2007)), including where an officer orders a motorist to comply with
instructions, such as to open a car door or roll down a window.
Luedemann, 222 Ill. 2d at 550. It is well settled that a traffic stop
entails a seizure of the driver. Brendlin, 551 U.S. at 255.
Because seizures affect personal liberty interests, including the
freedom of movement and the possession of property (see Delaware
v. Prouse, 440 U.S. 648, 657 (1979)), an investigative detention must
last “no longer than is necessary to effectuate the purpose of the
stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). In addition, the
investigative means used must be “the least intrusive means reasonably
available to verify or dispel the officer’s suspicion.” Id.
Once it is determined that a search or seizure has taken place, in
order to pass constitutional muster, it must be “reasonable.” Indeed,
the touchstone of fourth amendment analysis “is always ‘the
reasonableness in all the circumstances of the particular governmental
invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms,
434 U.S. 106, 109 (1977) (quoting Terry, 392 U.S. at 19).
“Reasonableness” depends upon “a balance between the public interest
and the individual’s right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce, 422
U.S. 873, 878 (1975).
When, as here, a circuit court grants a motion to suppress
evidence based upon a violation of the fourth amendment, that ruling
is reviewed under the two-part test adopted by the Supreme Court in
Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Harris,
228 Ill. 2d 222, 230 (2008). The circuit court’s factual findings are
upheld unless they are against the manifest weight of the evidence.
People v. Sorenson, 196 Ill. 2d 425, 431 (2001). The reviewing court
then assesses the established facts in relation to the issues presented
and may draw its own conclusions in deciding what relief, if any,
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should be granted. Harris, 228 Ill. 2d at 230. Accordingly, this court
reviews de novo the ultimate legal question of whether suppression is
warranted. Luedemann, 222 Ill. 2d at 542-43.
II. Factual Background
As stated, in determining whether an individual has been “seized”
for fourth amendment purposes, the inquiry pivots on whether the
conduct of police would have communicated to a reasonable person
that she was not free to decline the officers’ requests or otherwise
terminate the encounter. Also, as stated, a person’s submission to a
show of authority indicates that the person has been seized. These
principles of seizure analysis are repeatedly referenced in the
“Background” section of the majority opinion, wherein my colleagues
recount the course of these proceedings in the circuit court. The
transcript of the hearing on defendant’s motion to suppress reveals
that the parties and the circuit court grappled with the issue of
whether the officer’s order to defendant to engage in the set-up
procedure during the traffic stop constituted an additional seizure,
and, if so, whether that seizure was reasonable.
For example, the majority notes that it was during the suppression
hearing that the parties and the court first became aware of the use of
the set-up procedure by police. According to the majority, because the
circuit court found the procedure “interesting” (slip op. at 4), and
because it was “curious as to whether the officers had the authority
to direct defendant to roll up her windows and turn the blowers on
high” (emphasis added) (slip op. at 4), it continued the matter to allow
briefing on this specific issue. I note that the majority itself indicates
that the circuit court’s “interest” and “curios[ity]” was centered upon
whether it was proper for the officer to order defendant to set-up the
vehicle to facilitate the dog sniff, as well as upon the resulting effect
of defendant’s submission to this show of authority.
The majority further recounts that when the hearing resumed, the
parties disagreed on the critical issue of “whether the officers had the
authority to order defendant to comply with the set-up procedure
before conducting the dog sniff.” (Emphasis added.) Slip op. at 4.
Again, I note that this clearly shows that the question debated in the
circuit court involved seizure analysis, as it concerned the officer’s
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show of authority against defendant by commanding her to comply
with the set-up procedure, the submission of defendant to this show
of authority, and whether this show of authority constituted an
additional seizure which was reasonable.
The majority further recounts that although the parties and the
circuit court agreed that the question of whether the set-up procedure
comported with the fourth amendment appeared to be a matter of first
impression in Illinois, the State relied upon a ruling of the federal
Court of Appeals for the Tenth Circuit, United States v. Ladeaux, 454
F.3d 1107 (10th Cir. 2006), as being factually analogous. Slip op. at
4. The majority relates that “the circuit court and the parties discussed
United States v. Ladeaux’s focus on whether police mandated
compliance with the procedure–which would render it an additional
seizure.” (Emphasis added.) Slip op. at 4. Thus, the majority itself tells
us that the parties, as well as the circuit court, applied Ladeaux in the
context of whether the officer’s order to defendant to perform the set-
up procedure amounted to an additional seizure, and, if so, whether
it was reasonable. The record reveals–and the majority
acknowledges–that as a direct outgrowth of this discussion of seizure
principles, the State conceded before the circuit court that Officer
Tyler ordered defendant to comply with the set-up procedure, and
that she had no option of refusal. Slip op. at 4.
The majority further observes that, in granting defendant’s motion
to suppress, “[t]he [circuit] court stated that the issue was whether
defendant’s fourth amendment rights were violated by the officers
instructing her to close the truck’s windows and doors and turn the
blowers on high.” (Emphasis added.) Slip op. at 5. In agreeing with
defendant that her fourth amendment rights were violated, the circuit
court held that “the directing of the defendant to close the truck’s
windows and doors and to turn the blower on high” was unreasonable.
(Emphasis added.)
A divided appellate court reversed the circuit court’s suppression
order. 384 Ill. App. 3d 1028. Although the majority appeared to treat
this as a “search” rather than a “seizure” case, I note that the majority
used seizure language in holding that “[n]o fourth-amendment
violation occurs when an officer lawfully investigating a traffic
violation orders the occupant to roll up the windows and turn on the
blowers to facilitate a dog sniff.” (Emphasis added.) 384 Ill. App. 3d
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at 1036. In addition, seizure analysis was also used by the dissenting
justice, who asserted that “[a] police officer who has stopped a vehicle
for a traffic violation does not have unbridled authority to order and
conduct chemical tests,” and that under these facts it was
impermissible for the officer to “order[ ] the occupants of the vehicle
to engage in testing.” (Emphases added.) 384 Ill. App. 3d at 1036
(Cook, J., dissenting).
III. The Majority’s Analysis
In the instant appeal, three major points are undisputed. First,
there is no dispute regarding the circuit court’s factual finding that the
initial traffic stop was justified by Officer Tyler’s observation of
defendant’s violation of the Illinois Vehicle Code (625 ILCS
5/11–1303(a)(1)(b) (West 2006) (no person shall stop, stand or park
a vehicle on the sidewalk)), and that this initial seizure, therefore, was
reasonable. As stated, it is well settled that the temporary detention of
individuals during the stop of an automobile by the police, even if only
for a brief period and for a limited purpose, constitutes a “seizure” of
“persons” within the meaning of the fourth amendment. Prouse, 440
U.S. at 653. To comport with the fourth amendment, this seizure must
be “reasonable” under the circumstances. Generally, the decision to
stop an automobile is reasonable where the police have probable cause
to believe that a traffic violation has occurred. Whren v. United States,
517 U.S. 806, 810 (1996).2
Second, it is also undisputed that the Quincy officers had the
authority to conduct an exterior canine sniff of defendant’s vehicle
during the traffic stop and that the sniff itself did not violate the fourth
amendment.3 In Illinois v. Caballes, 543 U.S. 405 (2005), the
2
But see United States v. Copeland, 321 F.3d 582, 594 (6th Cir. 2003)
(parking violation was a violation of the traffic laws and thus justified a stop
on probable cause; however, “where an observed parking violation is not
ongoing, an officer is required to effect a stop based upon this conduct within
a reasonable period of time,” otherwise “the existence of probable cause is
said to have become stale”).
3
I note that it is also undisputed that there was no undue delay occasioned
by the sniff, and that the canine Max was qualified to perform the sniff.
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Supreme Court held that a suspicionless dog sniff conducted during
a routine traffic stop does not implicate rights protected by the fourth
amendment. Id. at 409; see also People v. Bew, 228 Ill. 2d 122, 130
(2008).
Finally, there is no dispute that Officer Tyler demanded that
defendant comply with the set-up procedure. As noted, the State
conceded in the circuit court that Officer Tyler ordered defendant to
perform the procedure, and that she had no option to refuse
compliance.
What is in dispute in this case–as the majority’s recitation of the
factual background amply demonstrates–is whether the officer’s order
to defendant to comply with the set-up procedure during the traffic
stop constituted an additional seizure, and, if so, whether that seizure
was reasonable. Nevertheless, despite its repeated recitation that the
proceedings in the circuit court revolved around seizure principles, the
majority frames the issue on appeal as whether the officers’ order to
defendant to perform the set-up procedure constituted an
unreasonable search under the fourth amendment. Slip op. at 8. The
majority explains that it confines its analysis to search principles
because defendant limits her argument to the issue of whether the set-
up procedure used in this case constituted an unreasonable search
under the fourth amendment and does not argue that the set-up
procedure constituted an unreasonable seizure. Slip op. at 8.
In her brief to this court, defendant did argue that the officer’s
command to engage in the set-up procedure was an unreasonable
seizure, maintaining that “[i]n the instant case, Officer Tyler
impermissibly acted by turning the traffic stop into an illegal seizure
by ordering Ms. Bartelt to place the vehicle on auxiliary power, to
turn the vents to high, and to keep all doors and windows closed.”
(Emphasis added.) Although this precise argument was not fully
developed, the fact remains–as repeatedly acknowledged by the
majority in the “Background” section of its opinion–that seizure
concepts, principles and arguments were raised and considered in the
circuit court. As the issue presented in this appeal is novel, it is
therefore not surprising that both parties–as well as the courts–have
struggled in defining the precise contours of the proper arguments and
analysis. The fact that this appeal involves a fourth amendment
question has added to this conundrum, as that provision is “more
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practical than theoretical,” and “[b]oth the language of the
Amendment, which prohibits ‘unreasonable searches and seizures,’
and the decisions of the [United States Supreme] Court interpreting
it are purposely imprecise.” United States v. Johnson, 599 F.3d 339,
342 (4th Cir. 2010). Indeed, the Court’s fourth amendment decisions
“reflect a preference for case-by-case analysis, informed judgment, and
an examination of the entire factual picture over any ‘neat set of legal
rules.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).
It is well settled that this court may affirm the judgment of the
circuit court on any basis contained within the record. People v.
Horrell, 235 Ill. 2d 235, 241 (2009). Because the record
unquestionably establishes that seizure principles were squarely raised
and considered in the circuit court, and the majority’s own opinion
makes it clear that the issue presented by this appeal is whether the
order to defendant to perform the set-up procedure constituted an
additional seizure which was reasonable, I believe that the seizure
question is properly before us and that the resolution of this appeal
rests upon application of seizure principles. Although the majority
decides to “save the seizure analysis” for another day (slip op. at 10),
I question why this defendant is penalized and the violation of her
rights is unredressed in favor of deferring our examination of an issue
which is squarely presented by this appeal.
It is precisely because the majority frames the issue as whether the
officer’s order to defendant to perform the set-up procedure
constituted an unreasonable search–rather than seizure–that the
majority can therefore assert that “[t]his seems to be an issue of first
impression nationwide because the parties have not cited, nor has our
research revealed, any decisions that have addressed the issue.” Slip
op. at 8.
As noted, however, the identical factual situation has been
addressed in a case which was cited by the State in the circuit court,
extensively discussed during those proceedings, and also cited and
debated by the parties in their briefs to this court. In United States v.
Ladeaux, 454 F.3d 1107 (10th Cir. 2006), the use of a similar set-up
procedure was challenged by the defendant as violative of the fourth
amendment. Although the procedural posture of Ladeaux prevented
that court from reaching the merits of the defendant’s claim, that
opinion’s analysis is instructive. The majority, however, ignores this
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case–which is directly on point–presumably because it invokes seizure,
rather than search, principles.
In Ladeaux, the defendant was a passenger in a car stopped for
traffic violations. Because the officer believed the driver was unduly
nervous, he requested a narcotics detection dog be brought to the
scene based upon his “hunch.” When the dog arrived, the
officer–similar to the matter at bar–instructed that the car’s windows
be rolled up and the vents turned on to force the air out of the vehicle
prior to the sniff. After the canine gave a positive alert, the vehicle
was searched and narcotics were discovered. The defendant was
arrested. Ladeaux, 454 F.3d at 1109.
The defendant argued, inter alia, that the officers’ instruction to
roll up the windows and turn on the vents impermissibly expanded the
scope of the initial traffic stop, as the officer had no valid basis to
order performance of these actions. However, because the district
court failed to consider whether the evidence obtained during the stop
should be suppressed based upon the officer’s conduct, the Tenth
Circuit remanded the cause to allow this specific determination.
Ladeaux, 454 F.3d at 1110. The court provided the following
instructions on remand, requiring the district court to determine
whether the officer’s actions constituted an unreasonable seizure
because he issued a mandatory command to perform the procedure
rather than merely request compliance:
“[T]he district court must initially determine whether there
was a violation of Ladeaux’s Fourth Amendment rights. ***
*** [T]he character of [the officer’s] request is unclear.
*** [T]he district court must consider whether the request
required compliance or merely solicited cooperation. If [the
officer] requested the windows be closed and the vents opened
in such a way that an objective person would have felt ‘free to
decline the officers’ request’–even in the absence of
reasonable suspicion that the vehicle contained narcotics–we
doubt that the Fourth Amendment would be implicated at all.”
Ladeaux, 454 F.3d at 1111-12.
Shortly after the Tenth Circuit remanded the cause, however, the
district court granted Ladeaux’s motion to withdraw his motion to
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suppress.4 Although Ladeaux’s withdrawal of his suppression motion
ended the cause before the district court had an opportunity to
determine the validity of the officer’s actions, this does not lessen the
guidance offered by the Tenth Circuit’s opinion.
Thus, contrary to the majority’s statement that “the parties have
not cited *** any decisions that have addressed” the issue presented
by this appeal, Ladeaux addressed the precise factual scenario
presented in the matter before us: whether a motorist is unreasonably
seized under the fourth amendment as a result of performing the “set-
up” procedure as part of a routine traffic stop. I agree with Ladeaux
that for purposes of determining whether the actions of police violated
the fourth amendment, the pivotal inquiry is whether the officer
demanded that the defendant comply with the set-up procedure or
merely requested compliance so that “ ‘a reasonable person would feel
free to decline the officers’ requests or otherwise terminate the
encounter.’ ” Luedemann, 222 Ill. 2d at 550 (quoting Bostick, 501
U.S. at 436). I note that this inquiry was also of concern to the circuit
court, which specifically questioned whether police, during a routine
stop, have the authority to demand that a motorist perform the
procedure.
Applying this analytical framework to the instant appeal, I
observe, as an initial matter, that after stopping defendant based upon
her violation of the Vehicle Code, Officer Tyler began the encounter
by requesting defendant’s identification and proof of insurance. It is
well settled that it is proper for an officer to request identification
during a traffic stop, as such request is “facially innocuous,” neither
suggesting official interrogation nor increasing the confrontational
nature of the encounter. Harris, 228 Ill. 2d at 248-49; see also
Luedemann, 222 Ill. 2d at 549. In addition, I note that an officer may
ask to see a driver’s license, proof of insurance and vehicle
registration. People v. Bradley, 292 Ill. App. 3d 208, 211 (1997). We
have also held that a warrant check of all occupants of a lawfully
4
I note that in its brief to this court, the State attaches Ladeaux’s motion,
his supporting affidavit, and the court order. It appears that Ladeaux was
advised by counsel that it was unlikely that he had standing to challenge the
procedure because, as a passenger, he was not the person who took action in
response to the instructions of the officer.
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stopped vehicle does not violate the fourth amendment, as a warrant
is a matter of public record in which an individual has no reasonable
expectation of privacy. Harris, 228 Ill. 2d at 237.
I further note that the Supreme Court has held repeatedly that
mere questioning of an already-seized individual does not constitute
an additional seizure within the meaning of the fourth amendment, as
long as there is no compulsion to answer, i.e., “as long as the police
do not convey a message that compliance with their requests is
required.” Florida v. Bostick, 501 U.S. 429, 434-35 (1991); see also
Muehler v. Mena, 544 U.S. 93, 101 (2005) (even though officers had
no reasonable suspicion, they could ask suspect her name, date and
place of birth, and immigration status); Hiibel v. Sixth Judicial
District Court, 542 U.S. 177, 186 (2004) (“[Q]uestions concerning a
suspect’s identity are a routine and accepted part of many Terry
stops.”); United States v. Drayton, 536 U.S. 194, 200 (2002) (a police
officer does not violate the fourth amendment merely by approaching
a person in public to ask questions if the person is willing to listen).
Finally, as noted, there also is no question that under Caballes, the
officers could validly conduct a suspicionless, unaided canine sniff of
the exterior of defendant’s vehicle during the traffic stop. It is upon
this uncontested point in Caballes, however, that the majority focuses
its analysis, principally owing to the fact that the majority has forced
a seizure case into a “search” framework, and Caballes is a search
case. Thus, the majority proceeds as if the performance of the dog
sniff is a contested issue, which it is not. To this end, the majority
notes that, just as in Caballes, the dog sniff here was performed on
the outside of the vehicle, and “[e]ven though the officers ordered her
to roll up her windows and turn the blowers on high,” any intrusion
into defendant’s privacy “does not rise to the level of a
constitutionally cognizable infringement.” Slip op. at 11. The majority
thus arrives at the unremarkable, uncontested and well-settled
conclusion that under Caballes, “the dog sniff in the present case was
not a search subject to the fourth amendment because it did not
‘compromise any legitimate interest in privacy.’ ” Slip op. at 11. The
majority thus answers a question not presented by this appeal, and
declines to address the question squarely raised in this case.
In fact, the analysis conducted by the majority was flatly rejected
in Ladeaux. The Ladeaux opinion noted that the government had
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urged that court to hold that Caballes compelled the conclusion that
under the facts presented, no fourth amendment violation occurred.
The court, however, found any argument premised upon Caballes
inapposite, explaining: “The salient difference between Caballes and
this case *** is that there was no order in Caballes comparable to [the
officer’s] request directed at the occupants of the vehicle in this case.
Ladeaux objects not to the dog-sniff, but rather to the request;
Caballes simply does not reach this question.” Ladeaux, 454 F.3d at
1110 n.3.
I agree with Ladeaux. Under the facts presented in both Ladeaux
and in this appeal, the police went further than the officers in
Caballes: they ordered defendant to assist them in facilitating the
canine sniff by demanding that she turn the vehicle to auxiliary power,
close the windows and place the blowers on high to force the air from
the inside of her truck to the outside of the vehicle. There also is no
question that the officers demanded defendant’s compliance in the
midst of what was an already coercive environment, wherein
defendant was confronted by two officers and a narcotics canine, and
was seated in a vehicle which was parked in front of two police squad
cars arranged in a “T” formation. Because the officers’ actions
subsequent to the initial stop unquestionably “communicated to a
reasonable person that [she] was not free to decline the officers’
requests or otherwise terminate the encounter” (Bostick, 501 U.S. at
439), I conclude that the officer’s order to defendant to comply with
the set-up procedure constituted an additional seizure. Accordingly,
the reasonableness of this additional seizure must be assessed.
As stated, the reasonableness of a particular law enforcement
practice is judged by balancing its promotion of legitimate
governmental interests against its intrusion on fourth amendment
interests. Prouse, 440 U.S. at 654 (and cases cited therein); Mimms,
434 U.S. at 109 (quoting Brignoni-Ponce, 422 U.S. at 878).
Examination is first made of that side of the balance which supports
the interests of the State in ordering motorists to perform the set-up
procedure as a matter of course during all traffic stops. The State has
proffered nothing in support of police making this demand of all
drivers, including whether this procedure promotes legitimate law
enforcement purposes, and to what extent–if any–it enhances the
ability of the canine to find contraband that would not have been
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discoverable through a routine, unaided exterior canine sniff. Further,
when the State was questioned during oral argument regarding the
silence of the record on this point, counsel candidly admitted that “we
do not know the value of the procedure.” Based upon these facts, the
State has offered no justification to support police demanding that
motorists perform the set-up procedure during routine traffic stops.
Because there is nothing to balance against the intrusion to
defendant’s personal liberty interests and her right to be free from
arbitrary interference by police, it necessarily follows that the set-up
procedure is unreasonable and constitutionally infirm.
Indeed, it is based upon this significant balance in favor of
defendant that the State’s analogy between the order to defendant to
perform the set-up procedure and an officer’s order to occupants to
exit the vehicle during a traffic stop fails. In its brief to this court, the
State draws this analogy by relying upon the decisions of the United
States Supreme Court in Maryland v. Wilson, 519 U.S. 408, 414-15
(1997), and Mimms, 434 U.S. at 111, which hold that the fourth
amendment is not violated where police order occupants out of their
vehicles as a matter of course during traffic stops. Notably, both
Mimms and Wilson begin their analysis with the premise that an order
by police to a motorist to exit the car is an additional intrusion into his
or her personal liberty–in other words, a seizure. Mimms, 434 U.S. at
111; Wilson, 519 U.S. at 414-15. Thus, the critical question in these
cases was whether the additional seizure was reasonable under the
fourth amendment. In Mimms, the Supreme Court’s holding that the
additional seizure was reasonable was animated by the significant
balance of interests in favor of the State. Unlike in the matter before
us–where the State has proffered no evidence to support the police
order to engage in the set-up procedure–the Court in Mimms held that
the State’s justification for the order to exit the vehicle was to ensure
officer safety, an interest “both legitimate and weighty.” Mimms, 434
U.S. at 110. When balanced against the public’s substantial interest in
officer safety, the additional intrusion into the driver’s personal liberty
occasioned by such order was found to be “de minimis.” Mimms, 434
U.S. at 111; accord Wilson, 519 U.S. at 413-15 (extending Mimms to
uphold validity of police order to passengers to exit vehicle during
traffic stop, as “danger to an officer from a traffic stop is likely to be
greater when there are passengers in addition to the driver in the
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stopped car,” and “the additional intrusion on the passenger is
minimal”).
As explained, because it is my view that this appeal should be
analyzed using seizure principles, I disagree with the majority’s use of
search analysis. However, even if I were to agree that it is appropriate
to use search principles, I would nevertheless be unable to join the
majority’s opinion.
In the penultimate paragraph of the majority’s analysis, my
colleagues analogize the set-up procedure used in this case to a
luggage “prepping” procedure approved by the federal Court of
Appeals for the Fifth Circuit in United States v. Viera, 644 F.2d 509
(5th Cir. 1981). There, a bus driver became suspicious when two
passengers boarded his bus with suitcases which were unusually heavy
and in which he observed bags of pills and white powder. The driver
alerted Drug Enforcement Administration agents, who conducted a
dog sniff of the suitcases after “prepping” the bags by “press[ing]
lightly with [the] hands and slowly circulat[ing] the air a little bit,”
with the goal of “procur[ing] a scent from the bag.” Id. at 510. The
Fifth Circuit held that the district court had properly denied the
defendants’ suppression motion, holding that this prepping procedure
was not sufficiently intrusive to constitute a violation of the fourth
amendment. Id.
I note that apart from Caballes–which was never contested by the
parties in this appeal–Viera is the only case cited by the majority in
support of its holding that defendant was not subject to a search, and,
therefore, that the fourth amendment was not implicated in this case.
The facts in Viera, however, are significantly distinguishable from the
instant appeal: there, the “prepping” prior to the dog sniff was done
by government agents; here, defendant was ordered to perform the
set-up procedure prior to the dog sniff. In addition, defendant
contends that the continued viability of Viera is placed in question by
the subsequent decision of the United States Supreme Court in Bond
v. United States, 529 U.S. 334 (2000). In Bond, the Court held that
a bus passenger had an expectation of privacy in a bag placed in an
overhead bin, and that a police officer’s physical manipulation of the
bag violated that privacy expectation and constituted an illegal search.
Id. at 338-39. The majority addresses neither Bond nor defendant’s
contention.
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In sum, under the facts presented, it is my view that the order to
defendant to engage in the set-up procedure was an additional seizure
which was unreasonable under the fourth amendment.
For the foregoing reasons, I respectfully dissent from the majority
opinion.
JUSTICES BURKE and THEIS join in this dissent.
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