APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
526 N.E.2d 616, 172 Ill. App. 3d 385, 122 Ill. Dec. 357 1988.IL.1059
Appeal from the Circuit Court of Cook County; the Hon. John N. Hourihane, Judge, presiding.
JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
The defendant, Lloyd Forrest, was charged with possession of more than 500 grams of cannabis with intent to deliver. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 705(e).) Prior to trial, the court granted the defendant's motion to suppress the evidence obtained from the search of his garment bag. The State appeals.
At approximately 11:40 p.m. on January 31, 1985, defendant arrived at Midway Airport, located in Chicago, on a flight from Orlando, Florida. Officers Crowley and Boyle of the Chicago police department were at Midway Airport observing the passengers disembark from this flight because it originated in Orlando, a city known to be a source for illegal drugs. They were looking for anyone who fit the drug courier profile, which listed various characteristics associated with couriers. These characteristics included such things as arrival from a source city, activities by the suspected courier which were calculated to determine the existence of any law enforcement surveillance, or any activities which otherwise distinguished the suspected courier from fellow passengers in a manner arousing suspicion that contraband was being carried on his person or in his baggage. The defendant here passed through the concourse to the terminal carrying a garment bag over his shoulder. Once in the terminal, he did not pick up baggage in the claim area, but stopped at a public phone, although he did not speak into the phone. At that point, he was approached by Officer Crowley, who had a brief conversation with him, and in response to Crowley's inquiry, the defendant produced a valid driver's license bearing his name, address and likeness. When Crowley asked if he could inspect his bag, Forrest denied him permission to search the bag, and when Crowley told him the bag would then be detained, the defendant gave Crowley a phone number and left the airport without the bag.
According to the defendant's version of this occurrence, when he got off the plane, he went to a phone, and dialed the number of the party who was to pick him up, but no one answered. When Crowley approached him and identified himself as a police officer, Crowley made no mention of a drug investigation. When the defendant denied Crowley permission to search his bag, Crowley physically took the bag from his person, and the defendant claimed that no mention was made of a canine sniff test. Defendant admitted that Crowley told him that he was free to go and that he would be contacted regarding the bag. At that point, defendant said he left the airport.
According to Crowley, neither he nor his partner had previous knowledge that anyone on board would be carrying contraband, but defendant caught their attention because he behaved strangely by repeatedly looking over his shoulder, while most passengers were looking ahead for an expected party who was to meet them or remained at the gate or another apparent agreed-upon location. Defendant initially passed quickly through the arrival gate area and started moving down through the concourse while repeatedly glancing backward. He did, however, stop at another gate for five to seven minutes while his fellow passengers, approximately 100 in number, had passed by him into the terminal. He was the last one to enter the terminal and went immediately to a public telephone where he did not dial any number but pivoted around continuously while surveying the terminal. He then left the terminal. Outside on the sidewalk, Crowley, dressed in casual clothes, approached the defendant, identified himself as a police officer, and asked defendant if they could talk. Defendant agreed, but told Crowley that he was in a hurry. Defendant produced a driver's license on request but said he left his ticket on the plane. Crowley indicated that he was conducting a drug investigation and asked to search defendant's bag, but indicated that defendant was not under arrest and was free to go. Defendant refused to allow a search of the bag and said that he was irritated at frequently being asked to allow a search of his bags for drugs. During the 5-to 10-minute Discussion, Crowley testified that defendant became very nervous and argumentative. Although he earlier informed the defendant that he did not have to consent to the search, Crowley said he subsequently announced to the defendant that his behavior justified detention of his bag for a canine sniff test. Crowley stated that he then told defendant that if the test was positive, he would seek a search warrant and, if negative, defendant's unopened bag would be returned. Although Crowley invited defendant to stay while the sniff test was being conducted, defendant told Crowley that he did not care what Crowley did because he was leaving. Before the defendant departed in a taxicab, defendant left the bag on the sidewalk, and left Crowley a telephone number, which turned out to be a wrong number.
Within 25 minutes of the defendant's departure, the sniff test was conducted and the result was positive. In less than an hour after the defendant's departure, Crowley applied for a search warrant. The next day a search warrant was issued, and the subsequent search of defendant's garment bag revealed 3,150 grams of marijuana.
At defendant's trial, defendant moved to suppress the evidence of the contents of the garment bag based on the fact that the search was illegal. The trial court granted defendant's motion to suppress, allegedly relying on Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319, Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752, People v. Blevins (1983), 118 Ill. App. 3d 221, 454 N.E.2d 802, People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, and People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, all of which assess the propriety of the seizure of the person of an airline passenger suspected of being a drug courier. The trial court relied on these cases and found that the State failed to meet its burden of demonstrating that reasonable, articulable suspicion existed to justify an investigatory stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The trial court, however, did not indicate whether it considered the illegal stop to have taken place when Crowley approached the defendant or when the defendant's personal property was detained, i.e., at what point in time did the court apply the articulable facts test. From the court's brief comments, it appears that the court addressed itself exclusively to the issue of the seizure of the defendant's person, which the court found required articulable suspicion for Crowley's initial approach to the defendant, and did not recognize the detention of the garment bag as a separate and distinct issue. The trial court granted defendant's motion to suppress and the State now appeals.
The State raises the issue of whether the trial court erred when it granted the defendant's motion to suppress by relying solely on the rationale that articulable suspicion was required for the initial stop of defendant. The State here contends that the trial court's order sustaining defendant's motion to suppress the evidence recovered from his garment bag was manifestly erroneous, inasmuch as Officer Crowley's initial contact with him constituted a consensual encounter rather than a seizure within the meaning of the fourth amendment. Further, the State argues that the subsequent detention of defendant's garment bag for testing by a trained canine must be considered separate and that this seizure was supported by reasonable, articulable suspicion, grounded on objective facts which indicated that the bag contained contraband. We agree with the State's analysis.
Prior to the opinion of Justice Stewart in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (opinion of Stewart, J., joined by Rehnquist, J.), the mere approach of law enforcement officers to an airline passenger based on his similarity to the so-called drug courier profile was considered a seizure of the person. Accordingly, even if the seizure was temporary and limited, it had to be supported, under the Terry v. Ohio standard, by reasonable, articulable suspicion, based upon objective facts, or on probable cause if the Terry limitations had been exceeded and a traditional arrest occurred. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The Mendenhall decision, however, notes that every encounter between police and citizens in a public area does not involve a seizure of the person and that no seizure occurs unless, based on the circumstances, a reasonable person would believe that his liberty had been restrained. Thereafter, in Reid v. Georgia, Justice Rehnquist's Dissenting opinion (Reid v. Georgia, 448 U.S. at 442, 65 L. Ed. 2d at 895, 100 S. Ct. at 2754 (Rehnquist, J., Dissenting)), and Justice Powell's Concurring opinion, joined by Chief Justice Burger and Justice Blackmun (448 U.S. at 442-43, 65 L. Ed. 2d at 895-96, 100 S. Ct. at 2755 (Powell, J., Concurring, joined by Burger, C.J., and Blackmun, J.)),1 commented on and approved of the Court's prior decision of United States v. Mendenhall, and the clear inference of their opinions in Reid as that the principles of Mendenhall would be followed by a majority of Justices in a proper case.
Thereafter, in 1983, in Florida v. Royer, a majority of Justices did approve the objective test announced in Mendenhall and held that law enforcement officers who approach an airline passenger in a public area, announce their office, and ask him if he is willing to answer questions put to him have not committed a seizure of the person within the meaning of the fourth amendment, and, thus, any answers given to the police during such a consensual encounter will not be suppressed. (See Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 235-36, 103 S. Ct. 1319, 1324.) Accordingly, the threshold question has been whether, under the objective Mendenhall test, a seizure of the person has occurred, and when a seizure has been found to exist, the next point of inquiry is to determine whether a reasonable, articulable suspicion was present to support such a temporary and limited investigative Terry stop or whether probable cause existed to support a full-blown arrest. See Florida v. Rodriguez (1984), ...