APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE STUART PALMER AND DEBORAH M. DOOLING, JUDGES PRESIDING.
As Corrected June 28, 1995.
Presiding Justice Scariano delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.
The opinion of the court was delivered by: Scariano
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
After a stipulated bench trial before Judge Stuart Palmer, defendant Richard Bailey was found guilty of armed violence, cannabis trafficking, and possession of cannabis with the intent to deliver, and was sentenced to six years imprisonment, and fined $36,050. He now appeals, claiming that his consent to the search of his luggage was not voluntary; rather that it was solely the result of a coercive, misleading, and legally insupportable threat by a law enforcement official to detain and subject defendant's luggage to a narcotics detector canine sniff. We agree, and we therefore reverse.
During the hearing before Judge Deborah M. Dooling on defendant's motion to quash arrest and suppress evidence, DEA Agent Gary Boirtlein ("Boirtlein") testified that he received a "tip" from a fellow drug task force agent in Texas, indicating that on November 3, 1993, a male passenger traveling under the name of "Keith Ericson" had boarded an Amtrak train in Austin, Texas, with a final destination of Milwaukee, and a transfer of trains the following day at Union Station, Chicago. The day prior to his departure the passenger had purchased his ticket for $378 in cash, and had been assigned to a handicap compartment, although not handicapped himself. The tip also included a description of the passenger, later identified as defendant, and the two bags he was carrying.
On November 4, 1993, Agent Boirtlein met two other officers at Union Station, and observed defendant alight from his train with two bags, "scan" the area, and proceed into the terminal where he paced around while "twitching" his head and "opening up [his eyes] in an exaggerated fashion" before proceeding to the Amtrak ticket counter, and eventually settling in a seating area. There, the agent, accompanied by one of the other officers, approached defendant, identified himself as a federal drug task force agent, and asked if defendant would answer a few questions. Defendant did not object, but throughout the questioning appeared very nervous; his hands were shaking, and his "whole body was trembling."
When asked to do so, defendant showed the agent his ticket and his driver's license, and explained that the names on the two did not correspond since he was traveling under an alias in order to "hideout from [his] wife." Thereafter, the agent told defendant that he was not under arrest and was free to leave at any time. Defendant agreed to answer more questions, but indicated that he was having difficulty hearing out of his left ear, so the agent spoke louder and more toward his right ear. Upon answering a few more questions about his bags, i.e., that he owned them and knew what they contained, the agent repeated that defendant was free to leave, and then asked for consent to search his bags. Defendant refused to consent.
At this point, although telling him that he was still free to leave, Agent Boirtlein further advised defendant that if he refused to consent to the search of his bags, they would be detained and subject to a scent check by a narcotics detector dog on the premises; if the scent check was positive, a search warrant would be obtained for defendant's bags, but if it was negative, the bags would be returned to him as soon as possible. According to the agent, defendant responded to this advisement by "taking a deep breath and [saying] well go ahead and look[,] you are going to find it anyway." Thereafter, the agent searched defendant's bags, and discovered a pistol and a bundle of gray duct tape that was later determined to contain cannabis.
Defendant's testimony tracked that of the agent's; however, he stated that after being advised that his bags were going to be detained, he "didn't know what to do[, so he] kicked [his] bag out;" that he had purchased a two week round trip ticket; and that the agent had ripped the ticket when defendant gave it to him.
One exception to the procedural protections of the fourth amendment is the consent search, which occurs when a person voluntarily consents to a search. "The question whether a consent to search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances." ( Schneckloth v. Bustamonte (1973), 412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63 93 S. Ct. 2041, 2047-48.) The State bears the burden to prove that such consent was freely given, and not the result of duress or coercion. ( People v. Kessler (1986), 147 Ill. App. 3d 237, 240, 497 N.E.2d 1323, 101 Ill. Dec. 10.) A trial court's ruling that the State has met its burden will not be reversed unless manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766, 68 Ill. Dec. 122.
In the case at bar, whether defendant's consent was freely given depends in large part on whether Agent Boirtlein had actual grounds upon which to carry out his threat to subject defendant's bags to a canine sniff. ( People v. Price (1990), 195 Ill. App. 3d 701, 708, 552 N.E.2d 1200, 142 Ill. Dec. 459; see also People v. Guenther (1992), 225 Ill. App. 3d 574, 578, 588 N.E.2d 346, 167 Ill. Dec. 705 (before concluding that defendant's consent was voluntary under the totality of the circumstances, the court first determined that the officer could have legally carried out his threat to subject the defendant's bags to a canine sniff).) In United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637, it was held that a brief detention of luggage for the purposes of investigation, including a canine sniff, does not constitute a search for fourth amendment purposes, and need only be supported by a reasonable suspicion based on specific facts that the luggage contained contraband. However, facts justifying such an investigatory detention may not merely describe "a very large category of presumably innocent travelers, who would be subject to virtual random seizures." ( Reid v. Georgia (1980), 448 U.S. 438, 441, 65 L. Ed. 2d 890, 894, 100 S. Ct. 2752, 2754.) As with the determination of whether consent was freely given, the court employs the totality of the circumstances test to determine whether a reasonable, articulable suspicion existed to justify an investigatory detention of luggage. United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581.
Defendant cites a number of cases for his contention that Agent Boirtlein did not have the grounds upon which to carry out his threat to detain defendant's bags, the most persuasive of which is People v. Breeding (1991), 219 Ill. App. 3d 590, 579 N.E.2d 1128, 162 Ill. Dec. 314. There, the defendant's tote bag was detained based on the following information: The defendant's train had originated from a city which was a "source" for narcotics, she was among the last persons to exit the train, and she walked slowly as she scanned the crowd. Then, she made eye contact with an individual who nodded his headed sharply to the right, and subsequently joined her. The defendant handed her tote bag to the individual, and exclaimed: "'These have been the longest two days of my life.'" ( Breeding, 219 Ill. App. 3d at 592, 579 N.E.2d 1128.) The individual noticed the officers following them, nudged the defendant, and placed his index finger against his lips. Thereafter, the defendant turned pale, had difficulty removing a cigarette from the pack, and attempted to light it four times before succeeding. When confronted, she told the officers that she had lost her train ticket and that her name was "Brown;" however, the defendant's luggage and driver's license identified her as "Breeding." Breeding, 219 Ill. App. 3d at 595-96, 579 N.E.2d 1128.
In holding that the detention of the defendant's tote bag was improper, the court concluded that (1) the absence of a train ticket was of no particular significance as the defendant was at the end of her trip; (2) scanning the crowd when she alighted from the train was not unusual; (3) the individual's "gesture of common courtesy" of taking the defendant's tote bag was "hardly suspicious;" (4) nervousness is not uncommon when being followed by two men; (5) the defendant's statement regarding her long trip was not suspicious in light of her two day cross-country train ride; and (6) that the context in which the individual pressed his index finger to his lips was "susceptible of innocent interpretation." The court also placed great import on there being no claim that the defendant ever made any untruthful statements to the police; and since the State ...