Appeal from Circuit Court of Champaign County No. 98CF1760 Honorable Jeffrey B. Ford, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
In November 2001, after a remand, defendant, Steve A. Gilbert, filed a motion to suppress, which the trial court heard and denied on July 1, 2002, at which time the court also reinstated defendant's conviction and sentence and discharged him from probation. Defendant appeals, arguing the court erred in denying his motion to suppress. We agree and reverse.
On December 24, 1998, defendant was arrested and charged with possession of a controlled substance, less than 15 grams of cocaine (720 ILCS 570/402(c) (West 1998)). On March 9, 1999, a jury convicted defendant, and on May 10, 1999, the trial court sentenced him to 24 months' conditional probation. While on probation, there was a dispute as to whether defendant had failed a drug test, and the court revoked his probation and resentenced him to an additional 24 months' probation on October 26, 1999.
Defendant appealed both his underlying conviction for possession (No. 4-99-0445) and also the revocation of probation (No. 4-99-0915). On August 17, 2001, this court reversed the conviction due to ineffective assistance of counsel. People v. Gilbert, No. 4-99-0445 (August 17, 2001) (unpublished order under Supreme Court Rule 23). We remanded the case to the trial court so that defense counsel could file a motion to suppress. On October 16, 2001, this court also vacated the revocation of defendant's probation, since the trial court had no jurisdiction after the sentence was reversed. People v. Gilbert, No. 4-99-0915 (October 16, 2001) (unpublished order under Supreme Court Rule 23).
On November 7, 2001, defendant filed a motion to suppress. At the hearing on the motion on July 2, 2002, Officer Brian Gallagher of the Champaign police department testified that he was on "directed patrol for narcotics investigation" in the north district of Champaign on the night of December 24, 1998. He stated that he observed defendant's car parked on the side of the road with only the driver in it and the engine running. Gallagher did not see anyone enter or exit defendant's vehicle and only observed the vehicle for about 30 seconds as he drove past. However, Gallagher testified that this was a high drug-activity area, and although he could no longer recall the address of the particular house defendant was parked in front of, or whether it was a drug house, he stated that he was sure that defendant's car was parked near a suspected drug house.
Having worked in the north end of Champaign for several years, Gallagher had developed a pattern of drug-purchasing behavior based upon his own observations:
"There would be a pattern where people would park their cars. A driver would most likely stay in the car. If they had a passenger, the passenger would exit the car, purchase narcotics, get back in the car and leave, and that would be done within a 10-minute, 15-minute period of time, a very quick trans-action. That was the most significant pattern."
Based upon this pattern and his observation of defendant parked in his car with the engine running, Gallagher formed the opinion that defendant was buying crack cocaine.
Gallagher then parked his car in an area where he knew defendant would have to drive past to leave the neighborhood and waited for defendant to approach. After waiting for approximately two minutes, he saw defendant drive by with two additional occupants in the vehicle. When he observed that the right taillight of defendant's car was not operational, he pulled defendant over. He approached defendant, asked him for his driver's license and proof of insurance, and informed him why he had been stopped. Gallagher stated that he saw nothing suspi-cious inside defendant's car, he did not smell any suspicious odors, and he noted nothing suspicious about defendant's or either of the passengers' behavior. Nonetheless, Gallagher immediately called for a canine unit upon returning to his car to run a license and warrant check. In addition to running a license and warrant check on defendant, Gallagher also ran warrant checks on both of the passengers in the car, which he stated quite often causes a time delay.
After about three minutes, Officer Doug Martin arrived on the scene with a canine unit. Gallagher spoke briefly to Martin and described the situation to him. Martin then walked his canine around defendant's vehicle. While Gallagher was writing out a warning ticket for the taillight violation, Martin returned to Gallagher's squad car and informed him that the canine had alerted to the presence of drugs within the vehicle.
Gallagher completed the warning ticket for the taillight violation, then exited his car and approached defendant's vehicle. He informed defendant that the canine had alerted on the vehicle and asked him to step outside of the car. Defendant complied, and Gallagher took him to the rear of the vehicle and searched his person. During this search, Gallagher found several rocks of what he suspected was crack cocaine in defendant's rear pocket.
The trial court found that the police had probable cause to stop the vehicle initially, and after the dog had alerted, probable cause to conduct a search of the vehicle and passengers. The entire encounter took about 10 minutes, which the trial court said is about what a person would expect for a traffic stop, so no delay was caused by calling in the canine. The court then determined that because of Gallagher's experience and his observations, he had a reasonable suspicion of criminal activity supporting his decision to bring in a canine unit. Because of this, the court denied the motion to suppress. The court then held that because the motion to suppress had been denied, the language in the order from this court reversing and remanding the cause, "[w]e also find that were such a motion not ...