Appeal from Circuit Court of Douglas County No. 00CF34 Honorable Frank W. Lincoln, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
After a stipulated bench trial, the trial court found defendant, Travis L. Powell, guilty of possession of marijuana with intent to deliver (720 ILCS 550/5(f) (West 2000)) and sentenced him to an agreed four-year prison term. Defendant appeals the trial court's denial of his motion to suppress, arguing (1) the traffic offense of following too closely (625 ILCS 5/11-710(a) (West 2000)) is unconstitutionally vague and (2) the police illegally detained him after the traffic stop was complete. We reverse.
At the preliminary hearing on May 26, 2000, Sergeant Tony Cessna of the Illinois State Police testified that on April 29, 2000, at about 8:35 a.m., while patrolling Interstate 57, he pulled defendant over because he had seen him following a semitrailer too closely. Defendant gave Cessna a valid Mississippi driver's license and a rental car agreement for the vehicle. Cessna informed defendant of the offense, and defendant admitted he had followed the truck too closely. While taking defendant's information, Cessna smelled the odor of air freshener coming from inside the car.
Cessna asked defendant to come into his squad car while he wrote a warning ticket for following too closely. As defendant sat with him in the squad car, Cessna ran a criminal history and driver's license inquiry on defendant. While waiting for the results, Cessna asked defendant where he was traveling. Defendant responded that he and his passenger were coming from Chicago and traveling to Jackson and West Pointe, Mississippi. Cessna asked defendant if he had ever been arrested; defendant told him he had been arrested for possession of cannabis. When Cessna received the inquiry results, they showed defendant had several prior arrests for possession of a controlled substance as well as possession of cannabis; there was an outstanding warrant for defendant's arrest in Cook County, but it could not be executed outside of that county; and defendant's Illinois license had been revoked.
Cessna completed the warning ticket and handed it to defendant. He kept defendant's driver's license, however, and told him he was going to talk to the passenger in his car while defendant signed the warning ticket. "I handed him the warning and asked him to sign it and advised him I was going to talk to his passenger while he was doing that." Cessna then exited his squad car and returned to defendant's vehicle, where he spoke to the passenger, Candace Martin, for two to three minutes. Martin told Cessna they were on their way to Maywood, Illinois, from Chicago, to visit relatives. Cessna returned to his squad car, returned defendant's driver's license, and gave defendant a copy of the warning ticket. Cessna then told defendant that Martin stated they were traveling to a destination different from the one defendant had stated. Defendant responded that Martin knew where they were going and he could not explain her answer. Cessna asked defendant for permission to search his car, and defendant consented. After Cessna opened the trunk and began the search, defendant asked him what would happen if defendant told him he could not search the car. Cessna told defendant he had the right to refuse, and defendant responded that he was in a hurry and "would like to get going." Considering that comment a withdrawal of consent to search, Cessna stopped searching. At that point, Cessna told defendant he was free to leave--but not with the vehicle, or at least not yet, because he had sufficient suspicion to detain it and call for a canine unit. Master Sergeant Jeffrey Gaither arrived on the scene.
While waiting approximately 24 minutes for the canine unit, Gaither spoke to Martin and saw what appeared to be cannabis on the floor of defendant's car. Gaither removed some of the material, and it field-tested positive for cannabis. Two or three minutes later, the canine unit arrived, and the dog alerted to the driver's door of defendant's car. Cessna told defendant he was going to complete his search of the car. A search of the trunk revealed a shopping bag, inside of which was a grocery bag containing seven clear Ziploc bags of green plant material. The police field-tested two of the bags, and both tested positive for cannabis. They arrested defendant for possession of cannabis (720 ILCS 550/4(f) (West 2000)) and possession with intent to deliver (720 ILCS 550/5(f) (West 2000)). At the conclusion of the testimony in the preliminary hearing, the court found probable cause.
In July 2001, defendant filed a motion to suppress his statements and the physical evidence against him, arguing that the offense of following too closely (625 ILCS 5/11-710(a) (West 2000)), for which the police had stopped him, was unconstitutionally vague. Defendant further argued that if even the offense were constitutional, the search of his car and seizure of his person were unreasonable because the traffic stop was complete before Cessna discovered any reason for suspicion. At the hearing on the motion, Cessna's testimony was essentially the same as his earlier testimony at the preliminary hearing. He testified that defendant was traveling 20 to 30 feet, or roughly a car-and-a-half length, behind a semitrailer, a distance Cessna considered too small for defendant to come to a stop if the semitrailer stopped. According to Cessna, defendant was traveling faster than the semitrailer and had to hit the brakes to slow down. Cessna again testified that during the stop, he smelled an odor of air freshener coming from defendant's car and, in his experience, air fresheners were often used to mask the odor of narcotics.
Because of the smell of air freshener, defendant's prior criminal record, and defendant's and his passenger's conflicting accounts of their destination and what they were doing, Cessna believed some type of illegal activity was afoot. Therefore, he requested permission to search the vehicle, and defendant consented.
After finding the cannabis and arresting defendant, Cessna read him his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)). Defendant told Cessna that Martin had nothing to do with the marijuana. Defendant also claimed not to have seen the dog alert Gaither to the presence of drugs in his car. Cessna took defendant to the door that the canine had pawed, and defendant tried to wipe out the paw-marks with his foot.
On cross-examination, Cessna stated that he had five years' experience with a canine unit and had received "Valkyrie" training (training for drug-interdiction patrol). He could not recall the particular smell of the air freshener and acknowledged that air fresheners in cars are not illegal. Cessna testified that he went to talk to Martin, the passenger, because he suspected criminal activity.
On January 3, 2001, the trial court denied defendant's motion to suppress. The State dismissed the count for possession and on July 11, 2002, proceeded with a bench trial on the remaining count, with defendant's stipulation that the evidence in the preliminary hearing and in the hearing on his motion to suppress was sufficient for a finding of guilt. He expressly preserved for appeal the issues he had raised in his motion to suppress. The trial court found defendant guilty of possession of cannabis with intent to deliver (720 ILCS 550/5 (West 2000)) and sentenced him to an agreed four-year ...