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People v. Fondia

December 21, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JONATHAN L. FONDIA, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 99CM1272 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JONATHAN L. FONDIA, DEFENDANT-APPELLANT.

Appeal from Circuit Court of Champaign County No. 99CM1272 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Steigmann

Following a stipulated bench trial in November 1999, the trial court found defendant, Jonathan L. Fondia, guilty of possession of drug paraphernalia (a Class A misdemeanor) (720 ILCS 600/3.5(a) (West 1998)). The court later sentenced him to 300 days in jail and ordered him to pay a fine. Defendant appeals, arguing that the court erred by denying his motion to suppress evidence. We agree and reverse.

 I. BACKGROUND

In November 1999, defendant filed a motion to suppress evidence on the ground that the search of his person was illegal in that it violated his fourth amendment right to be protected from unreasonable searches and seizures (U.S. Const., amend. IV). At the hearing on defendant's motion, the trial court received the parties' stipulation to the following facts.

On September 16, 1999, Champaign police officer David Shaffer stopped a vehicle after noticing that its rear taillight was not functioning. Sharon Russell was the driver of the car, Waine Aikens was riding in the front-passenger seat, and defendant was riding in the backseat on the passenger side of the car. Shaffer requested Russell's license and proof of insurance and told Russell the reason for the stop. After Russell provided Shaffer with the requested documents, Champaign police officer Douglas Gallagher arrived on the scene.

Gallagher spoke with defendant and Aikens, and they provided him with their identification at his request. The officers then returned to their squad cars to conduct computer inquiries and warrant checks on Russell, Aikens, and defendant. While running the check on Russell, Shaffer requested that Champaign police officer Douglas Martin and his police canine respond to their location.

Approximately two minutes later, Martin and the police canine arrived. As Martin walked the dog around the vehicle, Russell, Aikens, and defendant remained inside. When the dog reached the rear seam of the driver's door, he alerted to the odor of illegal substances. Martin informed Shaffer of the alert. Shaffer returned to the vehicle and asked Russell to get out of the car and step to the rear. Shaffer explained to Russell that the dog had alerted and that the occupants of the vehicle and the vehicle itself would be searched. He then called in a request for Champaign police officer Elizabeth Mennenga to come to the location to search Russell. Meanwhile, the officers also asked Aikens and defendant to get out of the car, which they did.

Gallagher then informed defendant that the dog had alerted and that Gallagher was going to search him. When defendant responded that he did not want to be searched, Gallagher told him that he did not have the right to refuse. Gallagher then searched defendant's person by placing his hand into defendant's left-front pocket. Gallagher felt a metal tube and removed it from defendant's pocket. Based on his training and experience, Gallagher recognized the tube to be a crack pipe. Gallagher then handcuffed defendant and completed the search. He found no other contraband on defendant. Gallagher performed a field test on the tube he had found in defendant's pocket, and it indicated positive for the presence of cocaine. The other officers searched Russell's purse and Aikens but did not find any contraband.

The parties also stipulated to the following: (1) Shaffer conducted a valid traffic stop; (2) the dog was properly trained and had a highly accurate record; and (3) the canine sniff of the vehicle was valid. On this evidence, defendant argued that the canine alert to the presence of contraband in Russell's vehicle did not give rise to probable cause to search defendant's person.

The trial court ruled that the canine alert gave the officers probable cause to search the vehicle and that "if there is probable cause to believe that there is an illegal item in the vehicle, then the vehicle can be searched, and all of the occupants can be searched." ...


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