Appeal from the Circuit Court of Kane County. Nos. 01-CF-3161 01-CF-3614 Honorable Grant S. Wegner, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
In case No. 01--CF--3161, defendant, Octaviano Marungo, was indicted for two counts of unlawful use of a weapon within 1,000 feet of a school or park (720 ILCS 5/24--1(c)(1.5) (West 2000)), and three counts of unlawful use of a weapon (720 ILCS 5/24--1(a)(4) (West 2000)). In case No. 01--CF--3614, defendant was indicted for the offenses of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2000)) and unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2000)). Defendant filed a motion to quash arrest and suppress evidence in each case. The trial court denied each motion on May 29, 2002, following an evidentiary hearing. Defendant moved for reconsideration in light of this court's recent decision of People v. White, 331 Ill. App. 3d 22 (2002), which was filed on May 24, 2002. The trial court reversed each order and granted defendant's motions. The State appeals in both cases, contending that the trial court erred in applying White and granting defendant's motions to quash arrest and suppress evidence. We consolidated the appeals, and for the following reasons, now affirm.
The salient facts of both cases are not in dispute and we will briefly set them forth here. In case No. 01--CF--3161, Officer Steven Stemmet of the Aurora police department testified at the evidentiary hearing that around 3:22 p.m. on November 11, 2001, he saw defendant's car fail to come to a complete stop at a stop sign. He also observed that defendant's car had a license plate placed on the dashboard. Stemmet effected a traffic stop, approached the car, which was driven by defendant, and asked for defendant's driver's license and proof of insurance. Stemmet returned to his squad car and ran a computer check on defendant. He found that there were no outstanding warrants, returned to defendant's car, and informed defendant that he was going to write him two citations. Stemmet testified that he did not see any criminal activity at that time. Stemmet asked defendant what he wanted to post as bond, but defendant never answered because Stemmet also asked defendant if he had anything illegal in the car. Defendant responded no, and Stemmet then asked for consent to search his car. After receiving consent, Stemmet searched the car and found a loaded Smith and Wesson .40-caliber handgun under the driver's seat.
Upon reconsideration, the trial court noted that White held that, while a police officer making a lawful stop of a motorist is not precluded from making reasonable inquiries concerning the purpose of the stop, the scope of the activities and questioning by the police during an investigatory detention must be reasonably related to the circumstances that initially justified the stop. The court further noted that White held that questioning wholly unrelated to the purposes of the stop that is reasonably calculated to elicit incriminating responses is impermissible unless supported by independent, reasonable, and articulable suspicion. In applying these principles to the facts, the trial court found that the request for consent to search was totally unrelated to the traffic offense, which was the basis for the stop, and that the request was calculated to elicit an incriminating response. The court also found that there was no independent, reasonable, and articulable suspicion to form the basis for the request to search. Accordingly, the trial court concluded that defendant's fourth amendment rights were violated and the court granted defendant's motion to suppress.
In case No. 01--CF--3614, defendant first testified at the evidentiary hearing that at approximately 7:15 p.m. on December 15, 2001, he was driving in Aurora and was pulled over by an unmarked Aurora police car and subsequently placed under arrest. Defendant stated that he turned his turn signal on approximately 1,000 feet prior to making the turn. Officer Jeff Wiencek next testified that he observed defendant's car make a turn without activating its turn signal within 100 feet prior to turning. While Wiencek and his assistant, Officer Knepp, ran a license plate check, defendant, the driver of the car, walked to a unit four houses away and returned to the car. By that point, the license plate information returned and Wiencek went over to the car to speak with defendant. The car had stopped in the driveway before the officers had an opportunity to activate their lights and pull the car over. Other than the traffic violation, Wiencek had not seen defendant commit any other crimes. Wiencek and Knepp also wanted to speak with defendant because they considered defendant's actions to be suspicious. Wiencek testified that defendant had parked his vehicle at a house in an area where there were gang problems. Further, defendant also acted suspiciously when he walked four houses away from where he parked, looked at the officers as he walked away, and stood by the door of a residence for a moment before he walked back to his car. Because he felt this behavior was suspicious, Wiencek wanted to see whether there was any ongoing criminal activity other than the failure to properly signal a turn within 100 feet of an intersection. As defendant returned to the car, Wiencek approached him and asked what he was doing. Defendant replied that he was looking for somebody, but would not give the person's name or address. Wiencek asked defendant for identification and defendant gave him an identification card. Also, during the conversation, the officers asked defendant if they could look in his car. Wiencek stated that the gang activity in that area was one reason why he wanted to investigate defendant. Wiencek admitted that he had not seen anything that made him think that defendant had a gun. During his search, Knepp located two bags of cocaine. The traffic citation was not written until defendant was placed in custody and had been transported to the police station.
Upon reconsideration, based on White, the trial court found that the request to search was totally unrelated to the traffic offense, which was the basis for the stop, and that the request was calculated to elicit an incriminating response. The court further found that no evidence was presented to determine the nature of any gang-related problems and that it was not uncommon for people to look at the police to see what they were doing. As such, the court concluded that no independent, reasonable suspicion had been articulated that could form the basis for requesting permission to search the car. Accordingly, the court concluded that defendant's fourth amendment rights were violated, and it reversed its previous order and granted defendant's motion to suppress.
The State contends on appeal that the trial court erred in applying White and granting defendant's motions to quash arrest and suppress evidence. Essentially, the State argues that White holds that an officer cannot properly ask the defendant for permission to search his car, unless that request is based on something related to the initial traffic stop or, alternatively, is based on some other criminal activity observed by the officer. The State points out that in certain cases an officer may ask for permission to search a vehicle, even though such a request is unsupported by probable cause. See, e.g., United States v. Childs, 277 F.3d 947, 950-51 (7th Cir. 2002). The State fears that White will be increasingly expanded by the trial courts, as the trial court did in this appeal, in an almost "talismanic manner" to create a per se rule. The State argues that such an analysis carries White beyond the parameters of the problem that arose in that particular case and creates a wholly unrealistic situation for police officers in traffic stop cases. The State asserts that White should be limited to its facts in order to strike a better balance between protecting citizens from unwarranted interference with their privacy and serving their interests in the efficient and effective prevention and detection of crime. The State asks us to re-examine our decision in White in light of its argument. Finally, the State requests that we re-examine White in light of the recent Illinois Supreme Court opinion of People v. Gonzalez, 204 Ill. 2d 220 (2003), and "make whatever adjustments and modifications that are necessary." Accordingly, a brief overview of White and Gonzalez is necessary for the disposition of this appeal.
In White, an officer pulled the defendant over for failing to signal a lane change and the officer observed a lawn mower and weed whacker in the back of the defendant's station wagon. The officer asked to see the defendant's driver's license and proof of insurance and informed him of the reason for the stop. The officer then asked the defendant if he had any receipts for the items. The defendant gave him the receipts, and the officer observed that the name on the receipts was different from that of the defendant. The officer inquired about the name on the receipts and asked the defendant where the items came from. Additional statements made by the defendant regarding the ownership and possession of the items, and a further check of the car during the computer check, subsequently revealed that the defendant had forged a check in order to obtain the lawn mower and weed whacker. White, 331 Ill. App. 3d at 25-26.
Under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), a dual analysis is applied in determining whether a traffic stop implicates the fourth amendment. The first prong concerns whether the officer's action in stopping the vehicle was justified at its inception. The second prong considers whether the officer's conduct following the stop was reasonably related in scope to the circumstances that justified the interference in the first place. In White, we were concerned with the scope of the detention and whether the questioning about the items in the back of the station wagon was reasonably related in scope to the circumstances that justified the interference in the first place, absent reasonable suspicion to conduct this type of questioning. White, 331 Ill. App. 3d at 28. Based on our review of the relevant case law, we held:
"While a police officer making a lawful stop of a motorist is not
precluded from making reasonable inquiries concerning the purpose
of the stop, the scope of the activities and questioning by the
police during an investigatory detention must be reasonably related
to the circumstances that initially justified the stop.
[Citation.] An officer may expand the scope of his detention
beyond that which is reasonably related to the circumstances only
when the officer has a reasonable and articulable suspicion that
other criminal activity may be afoot or where matters that arise
during the course of the stop cause the officer reasonable
suspicion. [Citation.] Questioning wholly unrelated to the
purposes of the stop, which is reasonably calculated to elicit
incriminating responses, is impermissible unless supported by
independent, reasonable, and articulable suspicion." White, 331
Ill. App. 3d at 34.
In applying the law to the facts, we found that the officer's questions regarding the ownership of the items in the car were intrusive, calculated to elicit possibly incriminating responses, wholly unrelated to the purpose of the traffic stop, and unsupported by independent, reasonable suspicion. We further found that the defendant was doing nothing unusual to indicate that other criminal activity was afoot. Accordingly, we affirmed the trial court's suppression order. White, 331 Ill. App. 3d at 35.
In April 2003, one year after White was decided, the supreme court in Gonzalez conducted a thorough analysis to determine when and to what extent a police officer's conduct following a traffic stop satisfies the second prong of the Terry test. In Gonzalez, the officer stopped a car, in which the defendant was the passenger, for not having a front license plate. The officer approached the car on the passenger's side. He observed no criminal conduct by the defendant either before or immediately after the stop, and asked him for identification. The defendant complied. Thereafter, the officer ran a criminal history check of the defendant. The ensuing encounter between the officer and the defendant resulted in a search of the defendant's person, revealing a packet of cocaine. The defendant filed a motion to quash arrest and suppress evidence. The trial court concluded that, absent any suspicion of ...