United States District Court, S.D. Illinois
June 10, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JAMES T. WENDT, Defendant.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
MEMORANDUM and ORDER
In August 2004, James Wendt was indicted for possession with
intent to distribute cocaine, in violation of
21 U.S.C. § 841.*fn1 At his arraignment, Wendt was released on bond,
and trial was set for October 25, 2004. Wendt successfully moved
to continue both the deadline for filing a suppression motion and
the trial date (the latter was continued to December 13, 2004).
On October 25, 2004, Wendt filed a motion to suppress evidence
and quash arrest (Doc. 25) and memorandum in support (Doc. 26).
In the wake of several continuances, that motion was set for
hearing February 18, 2005, with trial to commence the following
month. The United States of America ("the Government") responded
to Wendt's motion on January 29, 2005 (Doc. 43).
Ten days later, Wendt moved to supplement his suppression
motion, actually seeking to reverse his position on the question
of whether probable cause supported his traffic stop. Wendt claimed that the receipt of certain "newly discovered evidence"
caused him to withdraw his earlier concession that probable cause
existed for the traffic stop/seizure.
The Court permitted the "supplementation," with the
understanding that Wendt would promptly produce to the Government
whatever newly discovered evidence triggered the change in
positions. See Doc. 55.*fn2 On February 17, 2005, defense
counsel obtained another continuance, which resulted in the
suppression hearing being moved to February 25, 2005.
At the February 25th hearing, defense counsel (complaining
of having just received certain tape recordings requested just
one week earlier) orally moved to continue the suppression
hearing and trial yet again. Over the Government's objection, the
Court granted Wendt's oral motions, continued the suppression
hearing to June 6, 2005, and continued trial to June 7, 2005.
Wendt moves to quash his arrest and suppress all evidence
discovered (and statements made) during a July 2004 traffic stop
and search of his vehicle. A hearing was held on the suppression
motion on June 6 and June 7, 2005 and the parties were permitted
to submit written closing arguments. Having heard the evidence
and reviewed the various legal memoranda, the Court finds that
the evidence establishes the following.
II. Analysis of Motion to Suppress Evidence and Quash Arrest
On July 22, 2004, members of the Metropolitan Enforcement Group
of Southwestern Illinois ("MEGSI") and the Collinsville, Illinois
Police Department placed signs on the shoulder of the eastbound lanes of Interstate 55/70 about a half-mile west of
Exit 9 (the "Black Lane" exit). The signs stated that a drug
checkpoint lay one mile ahead. Decoy police cruisers (which
actually contained no officers) were positioned down the highway
with their lights activated. The officers and agents positioned
themselves off the interstate, down Exit 9 near the intersection
of Fairway Drive and Black Lane/Fairmont Avenue.
Just before 3:00 p.m., MEGSI Agent Michael Parkinson (using
binoculars, sitting in his Jeep Cherokee, and acting as a
"spotter" observing the eastbound lanes of 55/70) radioed the
officers that he had seen a white Ford Expedition cross two lanes
of traffic without using a turn signal and exit the interstate
without using a turn signal.
As the Expedition drove onto the exit ramp for Black Lane,
MEGSI Agent Jon Brett Boerm saw the vehicle straddling the center
line of the roadway. Agent Boerm initiated a stop at the
intersection of Fairmont Avenue and Fairway Drive. The vehicle
had Missouri license plates.
Boerm approached the driver of the Expedition, explained the
reason for the traffic stop, and asked for the driver's license.
Defendant James Wendt provided a Missouri driver's license.
Wendt's hands were visibly trembling as he handed over the
license. Boerm asked where Wendt resided. Wendt did not make eye
contact. He responded in a shaky voice that he was living in
Springfield, Missouri. Wendt then volunteered that he was
traveling to Green Bay, Wisconsin. Through the open driver's side
window of the Expedition, Boerm saw what looked like a license
plate sticking out from the passenger floor mat.
While this exchange was taking place, Collinsville Police
Officer Charles Mackin approached the rear driver's side of
Wendt's vehicle and noticed fresh black paint on the rear wheel well. This aroused Mackin's suspicion, because his training in
drug interdiction had taught him that fresh paint "overspray" can
be indicative of a secret compartment in a vehicle.*fn3
Agent Boerm returned to his own car where he radioed central
dispatch at the Collinsville Police Department. The dispatcher
ran Wendt's driver's license and reported to Boerm that Wendt's
license was valid in Missouri and surrendered in Wisconsin.
While Boerm was waiting for this information from dispatch,
Mackin had taken Boerm's position at the driver's side window of
Wendt's Expedition. Mackin asked if he could talk to Wendt. Wendt
said yes. Mackin asked: "Where are you going?" Wendt said to
Green Bay. Mackin asked Wendt: "Why would you get off the highway
here?" Wendt responded: "To get gas." Mackin looked down and
noticed that Wendt had between one-quarter and one-half a tank of
gas. Mackin found Wendt's answer unusual, because the stretch of
highway which Wendt had just left contained no signs indicating
that there was a gas station at this exit. Mackin also found it
odd that Wendt would not look at him while talking to him.
Instead, Wendt stared straight ahead.
Boerm returned to the Expedition, and Mackin stepped back,
positioning himself at the rear driver's corner of the vehicle,
to provide "cover" or officer safety for Agent Boerm. Boerm again
asked Wendt where he currently lived.
This time, Wendt said he lived in Green Bay, Wisconsin and was
headed there. Agent Boerm asked where Wendt had departed from.
Wendt said he had left Springfield, Missouri the day before (July
21st). This response struck Agent Boerm as curious, since
Springfield was only a 4-hour drive from the location of the
Wendt was becoming increasingly nervous while answering these
simple questions. Boerm then asked Wendt why he had exited the highway. Wendt said
to get gasoline. Boerm asked where Wendt planned to get gas.
Wendt responded that he "didn't know, he hadn't seen any signs."
[Wendt, who testified on day two of the suppression hearing,
conceded that he had seen no signs for a gasoline station at the
Black Lane exit. Ultimately, he admitted that the statement about
looking for a gas station was not truthful. Indeed, Wendt
explained that he exited the interstate because he "didn't want
to deal with the police." Wendt even admitted that he knew or
believed there were drugs in his Expedition.]
Boerm asked Wendt to step out of the vehicle. Wendt did so.
Boerm gave Wendt back his license and stated that Wendt's nervous
behavior and conflicting answers about where he lived made Boerm
believe that Wendt was not being truthful. Boerm asked Wendt if
he had anything illegal in his vehicle, such as guns, drugs, or
contraband. Wendt said no. Boerm asked if Wendt would consent to
having his vehicle searched. Wendt shrugged his shoulders and
Wendt expressed no reluctance in consenting. Wendt neither
asked questions nor hesitated before consenting. Officer Mackin,
who overheard this portion of Wendt and Boerm's exchange (which
occurred after Wendt had stepped out of the Expedition), saw and
heard no reluctance when Wendt orally consented to the search.
Boerm got in the front seat of the Expedition. He found
United States currency, in five dollar denominations, in several spots
throughout the passenger compartment, including in the console
and under the visor. He examined a license plate that was
protruding from the passenger-side floor mat, which was lying
face-up under the mat with a second license plate from Wisconsin
and a temporary registration form. Agent Boerm then got in the
second row of seats of the Expedition. He looked in a
medium-sized duffel bag and saw several changes of clothing, some toiletries, and a receipt. The receipt was from a Drury Inn in
Dallas, Texas and displayed Wendt's name. Interestingly, the
receipt had a check-in date of July 21, 2004 and a check-out date
of July 22, 2004. This was inconsistent with the itinerary
information Wendt had provided. Additionally, Boerm had learned
in his drug interdiction training that Texas is a "source state"
Boerm questioned Wendt about his travel path. Wendt said he had
left Springfield, Missouri on July 21st and was driving to Green
Bay, Wisconsin. Boerm asked Wendt how that could be true if he
just left a Dallas, Texas hotel that same day (July 22, the day
of the traffic stop).
Meanwhile, Officer Mackin (assisted by a sheriff's deputy
trainee named Hank Ritter) looked under Wendt's vehicle and saw
what appeared to be a false compartment, directly under the rear
seat (there was an outline of a square that appeared to have been
welded to the vehicle, and that area was covered in fresh black
spray paint). Boerm saw this too.
Boerm re-approached Wendt and told him that they suspected his
vehicle contained a false compartment. Wendt denied any knowledge
of such a compartment and said he had just purchased the vehicle
the previous week. Boerm then asked if Wendt would let the
officers more thoroughly inspect the vehicle at a nearby Amoco
station/garage. Wendt said yes. [At the suppression hearing,
Wendt testified that he did not ask to leave at this point in the
traffic stop, did not object in any way to himself being taken to
the Amoco station, and expressed no reluctance to the officers
moving his vehicle to the Amoco for further inspection.]
Boerm explained that Wendt would be detained pending further
investigation of the vehicle. Agent Boerm drove Wendt's
Expedition to the Amoco station in Collinsville. In accord with
police department policy, Wendt was handcuffed (for officer
safety) while being transported by Collinsville Police Officers
to the Amoco station. The officers began transporting Wendt to
the Amoco station at 3:18 p.m., roughly 20 minutes after the traffic
stop had begun.
When they reached the BP/Amoco station on Highway 157 in
Collinsville, the officers un-cuffed Wendt. Agent Boerm asked
Agent Parkinson for a pre-printed MEGSI search waiver form, which
Parkinson provided. Boerm and Parkinson presented the waiver form
to Wendt, who was not handcuffed and was then out of the squad
car. Wendt signed it, without question or hesitation, around 3:30
Only after the form was signed did the officers/agents further
inspect the vehicle, turning their attention to the false
compartment. When the rear seat was removed and the carpet pulled
back, the officers immediately saw a hidden trap door secured by
a single bolt. Inside the compartment the officers found 17
individually-wrapped bundles of cocaine. A total of $1814.00 in
U.S. currency was found in the car.
Records of radio transmissions establish that the cocaine was
discovered at approximately 3:35 p.m. Wendt was arrested,
handcuffed, and advised of his Miranda rights. He was driven to
the Collinsville Police Department, where he was booked at 4:30
Moving to quash his arrest and suppress all evidence/statements
made during the search, Wendt argues that, after requesting his
license and asking where he was residing, Agent Boerm improperly
continued to ask questions and "investigate other crimes which
were independent of the original reason for the stop" (i.e.,
asking if Wendt had anything illegal in the vehicle). Citing
Terry v. Ohio, 392 U.S. 1 (1968), Wendt argues that Boerm
lacked "reasonable articulable suspicion" to probe into possible
drug or gun violations.
Under Terry, "police officers may conduct a brief,
investigatory stop of a suspect if they have reasonable suspicion
based on articulable facts that a crime is about to be or has
been committed." United States v. Johnson, 383 F.3d 538, 542
(7thp> Cir. 2004). Reasonable suspicion means an "objective
manifestation that the person stopped is, or is about to be,
engaged in criminal activity." Id.
Here, defense counsel maintain that, by investigating matters
beyond the subject of the traffic stop, Agent Boerm ran afoul of
the rule in Terry. In a recent dissenting opinion, Justice
Souter tendered a similar argument. See Illinois v. Caballes,
___ U.S. ___, 125 S. Ct. 834, 839 n. 1 (2005). The stop at
issue here, however, is not properly analyzed under Terry.
Rather, this traffic stop was justified by probable cause.
According to the testifying police officers, Wendt committed
three separate traffic violations:1) he changed lanes without
using his turn signal; 2) he exited the highway without using a
signal; and 3) he straddled the center line of the road. One
officer observed the first two violations while a second officer
observed the third. Clearly, a police officer who has probable
cause to believe that a driver has committed a traffic infraction
even a minor one may initiate a traffic stop, and the
officer's subjective motivations for making the stop are
irrelevant. See Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Brown, 188 F.3d 860, 864 (7thp>
Cir. 1999); United States v. Williams, 106 F.3d 1362, 1365-66
(7thp> Cir. 1997).
In United States v. Bass, 325 F.3d 847, 850 (7thp> Cir.),
cert. denied, 540 U.S. 998 (2003), the Seventh Circuit
As a general matter, a police officer's decision to
stop a car is reasonable if the officer has reason to
believe a traffic violation has occurred. . . . Any
ulterior motive an officer may have for making the
stop is irrelevant. . . . [quoting Whren,
517 U.S. at 813] "Subjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis."
Without question, Agent Boerm properly stopped
Wendt's vehicle. Wendt had committed a traffic violation, and the stop was
supported by probable cause. The request for the
driver's license likewise was proper. "This is
reasonable in any traffic stop supported by probable
cause." United States v. Jackson, 377 F.3d 715,
717 (7thp> Cir.), cert. denied, 125 S. Ct. 649
Defense counsel challenge the questions which went beyond
Wendt's identity, driver's license, and current residence. In the
brief supporting suppression (Doc. 26), defense counsel argue:
"Even having declared his intention of giving Mr. Wendt a
warning, Agent Boerm still did not issue a warning, and instead
began asking questions and investigating other crimes which were
independent of the original reason for the stop."*fn4
Defense counsel maintains that these questions transformed an
arguably proper initial detention into an illegal "seizure" of
The Seventh Circuit rejected just such an argument in United
States v. Childs, 277 F.3d 947, 949 (7thp> Cir.), cert.
denied, 537 U.S. 829 (2002), concluding: "The full court holds
that, because questions are neither searches nor seizures, police
need not demonstrate justification for each inquiry." The Court
Because probable cause supported this stop, neither
the driver nor [the Defendant] had a right to be
released the instant the steps to check license,
registration, and outstanding warrants, and to write
a ticket, had been completed.
Childs, 277 F.3d at 953. Additionally, the Seventh Circuit
clarified that questions asked of persons involved in traffic
stops "are not seizures and thus do not require probable cause or
reasonable suspicion." Childs, 277 F.3d at 951.
The Court's analysis does not end here, though. If a driver is
placed in custody via a traffic stop, the nature and duration of
that custody must be reasonable under the Fourth Amendment to the
United States Constitution. The Court must ascertain whether the
questioning rendered the physical detention unreasonable.
Childs, 277 F.3d at 952.
In the case at bar, the questions were legitimate, and the
detention was reasonable. As the Seventh Circuit declared in
Childs, 277 F.3d at 954:
Questions that hold potential for detecting crime,
yet create little or no inconvenience, do not turn
reasonable detention into unreasonable detention.
They do not signal or facilitate oppressive police
tactics that may burden the public for all suspects
(even the guilty ones) may protect themselves fully
by declining to answer. Nor do the questions forcibly
invade any privacy interest or extract information
without the suspects' consent.
Ohio v. Robinette, 519 U.S. 33, 36-37 (1996), is
instructive as to the questions which may be asked during a
traffic stop. In Robinette, a deputy sheriff stopped a motorist
for speeding. After performing the necessary administrative tasks
and returning the motorist's license, the deputy asked the
motorist if he had any drugs or contraband in the car. That
question prolonged the custody. The motorist said no, after which
the deputy asked if he could search the car. The motorist
consented, marijuana was discovered, and the motorist
unsuccessfully tried to suppress.
The Ohio Supreme Court held that the questioning was
unconstitutional, and the officer could not raise matters
unrelated to the original purpose of the traffic stop until he
told the driver he was free to go. The United States Supreme
Court reversed, finding the detention lawful and reasonable. The
high Court also upheld the deputy's directive for the motorist to
exit his car:
there is no question that, in light of the admitted
probable cause to stop Robinette for speeding, Deputy
Newsome was objectively justified in asking Robinette to get out of the car,
subjective thoughts notwithstanding. See
Pennsylvania v. Mimms, 434 U.S. 106, 111 . . .
(1977) ("once a motor vehicle has been lawfully
detained for a traffic violation, the police officers
may order the driver to get out of the vehicle
without violating the Fourth Amendment's proscription
of unreasonable searches and seizures").
Similarly, by asking a motorist about drugs, the officer in
Childs did not transform the motorist's custody into an
What happened here must occur thousands of times
daily across the nation. Officers ask persons stopped
for traffic offenses whether they are committing any
other crimes. That is not an unreasonable
law-enforcement strategy, either in a given case or
in gross; persons who do not like the question can
decline to answer. Unlike many other methods of
enforcing the criminal law, this respects everyone's
Childs, 277 F.3d at 954.
In the instant case, because there existed a proper traffic
stop, Wendt could be questioned by Agent Boerm without the
questions constituting a "seizure" under the Fourth Amendment.
Moreover, assuming arguendo that Boerm's questions constituted
a seizure, reasonable suspicion of criminal activity justified
the questions. See United States v. Moore, 375 F.3d 580,
583-84 (7thp> Cir. 2004).
Agent Boerm plainly observed nervous behavior by Wendt (i.e.
Wendt's shaking hands when furnishing the driver's license, Wendt
avoiding eye contact when answering questions).*fn5 Wendt
also gave inconsistent answers to a simple straightforward
question about where he lived and claimed he needed gas (which he
admitted in court was untrue) while the officer could see his
fuel gauge was between a fourth to a half full. Nervous or evasive
behavior is a "pertinent factor" in determining whether
reasonable suspicion existed. See Illinois v. Wardlow,
528 U.S. 119, 124 (2000). And inconsistent statements can give rise
to a reasonable suspicion that a suspect was involved in criminal
activity. See United States v. Sholola, 124 F.3d 803, 808
(7thp> Cir. 1997).
The traffic stop, the request for the driver's license, the
initial questions, and the additional questions do not offend the
Fourth Amendment. Neither does the consensual search of Wendt's
Expedition or his subsequent arrest.
Wendt orally consented at the site of the traffic stop and
executed a written consent at the BP/Amoco station. The evidence
in the record indicates that both these consents were wholly
voluntary and were not the product of any coercion, duress, or
overreaching. See United States v. Celitti, 387 F.3d 618, 622
(7thp> Cir. 2004) (listing factors to be considered in
determining voluntariness of consent to search); Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973); United States v.
Raibley, 243 F.3d 1069, 1075-76 (7thp> Cir.), cert.
denied, 534 U.S. 876 (2001).*fn6
For all these reasons, the Court DENIES Defendant Wendt's
motion to quash arrest and suppress evidence (Doc. 25).
If Defendant Wendt elects to go to trial, a final pretrial
conference will be held 1:00 p.m. on June 17, 2005. Trial will
proceed at 9:00 a.m. on June 27, 2005. If Defendant elects to
pursue a conditional plea, that plea will be taken at 1:00 p.m.
on June 17, 2005 in lieu of the final pretrial conference.
IT IS SO ORDERED.