The opinion of the court was delivered by: Reagan, District Judge
On September 19, 2007, Defendant Kirkland was indicted for possession with intent to distribute 50 grams or more of crack-cocaine (Doc. 14). This case is currently set for trial on Monday, April 28, 2008.
On November 30, 2007, Kirkland filed a motion to suppress evidence (Doc. 27) under the Fourth Amendment and the Illinois Constitution Article I, Section 6. Specifically, he argues that his initial traffic stop was an unreasonable detention in violation of the Fourth Amendment, that physical evidence was obtained from his vehicle in violation of the Fourth Amendment, and that his statements were obtained in violation of the Fifth Amendment. He requests that his statements and any physical evidence obtained from his vehicle be suppressed.
The Government filed its response on January 4, 2008 (Doc. 32) and Kirkland filed a reply on February 1, 2008 (Doc. 36). The Court held a hearing on the motion to suppress on February 28, 2008 (Doc. 40).*fn1 At the hearing, the Government presented various witnesses and exhibits, including a DVD of the traffic stop (See Doc. 41). Kirkland did not testify at the hearing.
Having fully considered the parties' filings and the evidence presented at the February 28, 2008 hearing, the Court hereby GRANTS IN PART AND DENIES IN PART Kirkland's motion to suppress (Doc. 27).
Jason Totel is a police officer in Fairview Heights, Illinois. Totel works with Kohl, a German Shepherd trained in the detection of narcotics. Totel has undergone extensive training with Kohl, including an initial three-week training period in January of 2007. He and Kohl currently participate in monthly training with other officers, and Totel does personal training with Kohl on a weekly basis.
Kohl has been trained in narcotics detection in automobiles and rooms. Totel testified that Kohl is 98.8% accurate in his detection of narcotics.*fn2 Totel also testified that when Kohl identifies the odor of narcotics, he sits and looks at the location of the drugs if they are above his head, or else he lays down and puts up his ears if they are lower. However, Totel also testified that Kohl sometimes varies slightly from these alert signals, but Totel can generally interpret Kohl's behavior due to their personal training. Totel noted that a positive alert to the presence of narcotics does not necessarily mean that drugs are present, but rather that the odor of narcotics is there. For instance, a drug dog might give a positive indication where drugs were present 8-10 days prior to the search. In any case, whenever Kohl alerts to the presence of drugs, Totel rewards him by giving him a rubber toy known as a "kong."
On September 2, 2007, Totel was on duty when an employee of the Ramada Inn notified him of possible drug activity related to Kirkland. Totel obtained a criminal history check and was told that Kirkland had a prior felony related to a drug trafficking offense. Totel then searched the parking lot and identified Kirkland's vehicle, a blue Chevrolet Caprice.
At approximately 4:45 a.m., Totel had Kohl perform a "sniff" of the vehicle. Starting at the rear passenger side, Totel led Kohl around the vehicle in a counter-clockwise direction. Kohl indicated the presence of narcotics at the rear passenger side by laying down with his head between his paws and his ears in an upright position. Kohl also indicated the presence of narcotics near the driver's door by laying down.
At that time, Totel also received information from the Illinois State Police that Kirkland was the subject of an open DEA investigation in Kansas City, Missouri. Consequently, Totel contacted his commanding officer, Sergeant Origliosso, who told Totel to conduct surveillance of the vehicle. Totel conducted visual surveillance for approximately two hours and was then replaced by Officer Brian Rogers.
When Rogers began surveillance, he was informed that Kohl had given a positive indication as to the presence of narcotics and that Kirkland had a prior felony. Sgt. Origliosso directed Rogers to perform surveillance on the vehicle and initiate a traffic stop, if possible, when Kirkland entered the vehicle.
At approximately 9:15 a.m., Kirkland drove the vehicle out of the parking lot and travelled westbound on Interstate 64. Rogers followed and observed air fresheners dangling from the rearview mirror, a cracked windshield, and believed that Kirkland was not wearing a seatbelt. Rogers pulled him over for these violations.
Rogers asked Kirkland a variety of questions, including his name, where he was going, where he was from, where he was staying, and why he was in the area. Kirkland stated that he was from Kansas City and was in town to visit his girlfriend, though he could not recall where she lived. Rogers testified that Kirkland's vague answers raised his suspicions that criminal activity was afoot. Additionally, when Kirkland obtained his license and registration, Rogers noticed large sums of cash in the glove compartment, which Kirkland said were earnings from work.
At this time, Rogers' partner, Officer Hester, then began to write warning tickets for the violations. Rogers presented Kirkland with the warnings at the rear of Kirkland's vehicle and then told Kirkland he was free to leave. Approximately 13 minutes had elapsed from the time of the initial stop.
Just as Kirkland turned to leave, Rogers asked, "Mr. Kirkland, before you go, do you mind if I ask you a couple questions?" Kirkland replied, "Go ahead."*fn3 Rogers then asked Kirkland whether he had any drugs in the car, and Kirkland stated that he did not. Rogers then requested that he be allowed to search the car. Though Kirkland never provided written consent, the DVD shows that he unequivocally consented to the requested search and offered to open the trunk. He also expressly stated that he had no objection to other officers helping with the search.
At this time, Officer Madrusic and Sgt. Origliosso conducted a search of the vehicle while Rogers engaged in "small talk" with Kirkland. Though Kirkland offered to help with the search, Rogers indicated that the officers would do it on their own for safety reasons. At no time did Kirkland attempt to stop or limit the scope of the search, though he did state a concern that ...