Appeal from Circuit Court of Sangamon County No. 99CF102 No. 99CF101 Honorable Stuart H. Shiffman, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
In February 1999, police arrested and a grand jury separately indicted defendants, Louis Sparks and Patricia Nunn, for cannabis trafficking (720 ILCS 550/5.1(a) (West 1998)), unlawful possession with intent to deliver cannabis (720 ILCS 550/5(g) (West 1998)), conspiracy to commit cannabis trafficking (720 ILCS 5/8-2 (West 1998)), and unlawful possession of more than 100 but less than 400 grams of a controlled substance (720 ILCS 570/402(a)(2)(B) (West 1998)). The grand jury additionally indicted Sparks for unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 1998)) and unlawful possession of less than 15 grams of a controlled substance (720 ILCS 570/402(c) (West 1998)). In both cases, the trial court suppressed evidence seized from Nunn's car by officers attempting to "Terry stop" defendants. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). On appeal, we granted the State's motion to consolidate defendants Sparks' and Nunn's cases (Nos. 4-99-0561 and 4-99-0622, respectively). The State now argues that (1) defendant Sparks lacked standing to challenge the constitutionality of the search since he had no protectible privacy interest in the automobile and (2) the trial court erred in suppressing the evidence from Nunn's car because officers conducted a proper Terry stop. We affirm.
In February 1999, officers from the Springfield police department and Sangamon County sheriff's office set up surveillance along Interstate 55 after a confidential source told police that defendants would be traveling back from Texas with contraband in their car. Officers spotted the car, driven by defendant Nunn, and initiated a Terry stop. Two canine units arrived minutes later and, after "sniffing" around Nunn's car, alerted to the trunk. Officers opened the trunk and removed a duffel bag. Both canine units alerted toward the duffel bag, so officers unzipped it and found what they later determined was cannabis.
At defendant Sparks' suppression hearing, Detective Michael Pennington testified that he received information regarding defendants from a confidential informant. The informant told Detective Pennington that defendants would be traveling from Odessa, Texas, carrying contraband. The source gave the defendants' names, their race, and approximate ages; the make, model, color, and license plate number of the car; and the date and approximate time (afternoon) that defendants would be arriving in Springfield. Although confidential, Detective Pennington knew the informant based on unrelated charges pending against the informant. Detective Pennington agreed to "work on" the informant's case in exchange for information regarding defendants.
On February 1, 1999, Detective Pennington and other officers formed a surveillance team and positioned themselves at various locations along Interstate 55. Around 6:30 p.m., Detective Robert Steil of the Sangamon County sheriff's office, who was not part of the surveillance team, was positioned on Interstate 55 conducting radar checks for speeding. He testified that he clocked Nunn's car traveling 68 miles per hour in a 65-mile-per-hour zone. Detective Steil pulled out behind Nunn's car and began following it. Before he could activate his Mars lights, members of the surveillance team overtook him and initiated a stop of Nunn's vehicle. Then Detective Steil activated his Mars lights and accompanied the surveillance team vehicles as they pulled Nunn's car to the roadside.
Detective Steil testified that surveillance team officers went immediately to Nunn, the driver, and began questioning her, while he talked with the passenger, Sparks, asking him whether "he had any guns, knives, drugs, or anything like that." Sparks denied having any such objects. A few minutes later, Detective Steil told defendant Nunn that he was going to issue her a speeding citation. The pair returned to Detective Steil's patrol car, where he began writing out the citation. During this process, he asked Nunn if she had any illegal drugs in her possession and whether police could search her car. Nunn did not give them permission to search and said they would have to ask defendant Sparks. Detective Steil asked Sparks whether they could search the car. Sparks did not give permission to search, stating "it's not my car."
Sparks testified that Nunn owned the car in which they were traveling. The car was registered in Texas and Sparks explained that they planned to stay in this area visiting family for a few days, then travel to Missouri before returning home to Texas. Sparks said that some of the items in Nunn's car belonged to him, including clothes for the trip. Furthermore, Sparks indicated that, although he was not the registered owner of the car and did not have a driver's license, he had a set of car keys.
About five minutes after officers stopped defendants, two canine units arrived and began "sniffing" the exterior of the car. Detective Pennington testified that he saw the dogs circle the exterior of the car and then "indicate" toward the trunk. He and other officers opened the trunk and discovered two large duffel bags, a milk crate full of various items, and a plastic shopping bag. Detective Pennington watched as the dogs sniffed the various items and "indicated" toward the duffel bags. Officers opened the duffel bags and found what they later determined was cannabis.
In July 1999, by way of memorandum opinion, the court found that defendant Sparks had standing to challenge the search. Further, the court ruled that the informant's tip failed to establish the informant's basis of knowledge. In particular, the informant gave mostly innocent details regarding defendants, and officers were unable to corroborate the allegation of criminal activity until after defendants were already seized. Accordingly, the trial court ordered the evidence against Sparks suppressed. Since the facts were identical, the trial court adopted the record of Sparks' suppression hearing as the record for Nunn's motion to suppress and likewise suppressed the evidence against her. This appeal followed.
As an initial matter, we must dispose of defendants' motion to strike certain portions of the State's reply brief. Specifically, defendants complain that, in its reply brief, the State argued for the first time that the Terry stop of defendants was valid because Detective Steil ultimately cited Nunn for speeding apart from any stop by the surveillance team. We grant defendants' motion since the State has forfeited this issue. Issues or arguments that a party fails to raise in its initial brief cannot later be raised in a reply brief. Smith v. Intergovernmental Solid Waste Disposal Ass'n, 239 Ill. App. 3d 123, 127, 605 N.E.2d 654, 656 (1992). Addressing the substance of an appellant's brief, Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)) declares that "[p]oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."
Turning to the substantive issues, as a general rule, suppression motions raise mixed questions of law and fact, and the court's ruling thereon will be reversed only if manifestly erroneous. In re D.G., 144 Ill. 2d 404, 408, 581 N.E.2d 648, 649 (1991). However, in this case, where neither party contests the facts or the credibility of witnesses, we will review de novo the question of whether reasonable suspicion warranted an investigatory stop. See D.G., 144 Ill. 2d at 408-09, 581 N.E.2d at 649.
A. Does Sparks Have Standing?
We address first the State's contention that Sparks lacks standing to challenge the search of Nunn's vehicle. The State argues that since Sparks did not own the car or otherwise have a possessory interest in it, he lacked standing to challenge the search made by police. We disagree.
Fourth amendment (U.S. Const., amend. IV) protection from unreasonable government intrusion extends to individuals who have a reasonable expectation of privacy in the place searched or property seized. Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430 (1978). Determining whether a person has a reasonable expectation of privacy in the area searched or in the items seized can only be resolved in view of the totality of circumstances of the particular case. People v. Johnson, 114 Ill. 2d 170, 192, 499 N.E.2d 1355, 1364 (1986). In deciding whether a reasonable expectation of privacy exists, a reviewing court may consider (1) the ownership of property searched or seized; (2) whether the person was legitimately in the area searched; (3) possessory interest in the area or property seized; (4) prior use of the property; (5) the ability to control or exclude others; and (6) one's subjective expectation of privacy. Johnson, 114 Ill. 2d at 191-92, 499 N.E.2d at 1364.
In Johnson, the court concluded that the defendant did not have a reasonable expectation of privacy in his stepfather's truck. In reaching its decision, the court stressed that the defendant had not driven the truck for six months prior to its seizure, was not present at, or in possession of, the truck when police seized it, did not claim any interest in items seized or establish that he ever stored personal effects in the truck, and failed to prove that he had access rights to the truck at the time police searched it. Johnson, 114 Ill. 2d at 192, 499 N.E.2d at 1364-65.
More recently, in People v. Taylor, 245 Ill. App. 3d 602, 614 N.E.2d 1272 (1993), the Third District Appellate Court held that the defendant had a reasonable expectation of privacy as the passenger in a car. Taylor, 245 Ill. App. 3d at 611, 614 N.E.2d at 1278. There, the defendant was traveling with her friend, in his car, from Illinois to Colorado after visiting family. The court pointed out that the defendant was on a long-distance trip in a car in which she kept some personal effects and luggage. Taylor, 245 Ill. App. 3d at 611, 614 N.E.2d at 1278. Furthermore, the car was, in a sense, the defendant's home for the duration of the trip; any of us traveling for an extended period of time in a car, in which we stored our belongings, would expect a certain amount of privacy over the duration of that trip. Taylor, 245 Ill. App. 3d at 611, 614 N.E.2d at 1278.
This court faced similar circumstances in People v. McCoy, 269 Ill. App. 3d 587, 593, 646 N.E.2d 1361, 1365 (1995), and concluded that the defendant there lacked standing to challenge the search of the car in which he was a passenger. In that case, the passenger defendant failed to establish any possessory interest in the vehicle (even though he allegedly rented the vehicle) or in the items seized because he had no valid driver's license and could not prove that he obtained the car with permission from "kinfolk." McCoy, 269 Ill. App. 3d at 592-93, 646 N.E.2d at 1365. However, we expressly acknowledged the Taylor decision and noted that this ...