Appeal from the Circuit Court of Effingham County. Nos. 09-CF-233 & 09-DT-338 Honorable Sherri L. E. Tungate, Judge, presiding.
The opinion of the court was delivered by: Justice Stewart
The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
JUSTICE STEWART delivered the judgment of the court, with opinion.
Justices Welch and Chapman concurred in the judgment and opinion.
¶ 1 After a traffic stop for improper lane usage, the defendant, Michael E. Scott, was charged with possession of unstamped cigarettes in case number 09-CF-233 and with driving under the influence of drugs and possession of cannabis in case number 09-DT-338. He filed motions to suppress evidence and statements in both cases. After an evidentiary hearing, the court granted the motions. The State filed a certificate of substantial impairment and a timely notice of appeal. The two cases were consolidated for this appeal. We reverse and remand.
¶ 3 We summarize the pertinent evidence introduced at the hearing on the motions to suppress as follows. Effingham County sheriff's deputy Darin Deters, who had been a law enforcement officer for four years, was on duty in a marked squad car during the early morning hours of November 4, 2009. He testified that he had received training on how to conduct traffic stops and had made between 800 and 900 traffic stops as a law enforcement officer. In his training, he was taught to look for violations of the Illinois Vehicle Code when patrolling in his squad car.
¶ 4 Deputy Deters testified that he was patrolling northbound on Interstate 57 when he noticed a gray Kia passenger car that crossed over the white fog line on the right side of the interstate twice for a couple of seconds each time. He did not notice any other vehicles or pedestrians in the vicinity. Deputy Deters testified that both the front and rear right-side tires crossed over the fog line. At approximately 2:50 a.m., Deputy Deters began following three to four car lengths behind the Kia. The Kia exited the interstate. As Deputy Deters followed the car, both the front and rear right-side tires again crossed the fog line on the exit ramp, and this time both tires were over the fog line for about 250 feet. He estimated that the defendant was driving at about 50 miles per hour on the exit ramp. Deputy Deters testified that he suspected that the defendant might be impaired, sleepy, or distracted, all of which are safety concerns. The defendant testified that he was aware of the squad car following him, that it was not possible that his tires crossed over the fog line, and that he was going to a nearby truck stop for coffee and donuts when the officer pulled him over.
¶ 5 After he observed the Kia make a left turn from the exit ramp, Deputy Deters called in the traffic stop and his location to the dispatcher and activated his overhead emergency lights, which caused the driver of the Kia to pull over. Deputy Deters walked to the driver's door of the Kia and used his flashlight to look inside the vehicle and observe the defendant as he explained the reason for the stop and asked for identification and proof of insurance. Deputy Deters did not notice anything illegal in the interior of the car and did not smell any alcohol, cannabis, or other illegal drugs. He asked the defendant where he had been and where he was going. The defendant told him that he had traveled from Chicago to the St. Louis area to shop and that he was on his way back to Chicago, where he lived. The defendant showed the officer a bag he said contained a pair of long underwear he had purchased.
¶ 6 Deputy Deters testified that the defendant's behavior "stood out just a little bit" because he was more nervous than usual for a person pulled over for a traffic violation. He said that the defendant's "movements appeared almost mechanical like they would jerk," that his movements were "very robotic," that his hand trembled, and that his carotid artery was pulsing. He testified that he thought the defendant's eyes were red and irritated but that he had not listed red or irritated eyes in his report. He did not think the defendant's explanation for his trip, that he traveled all the way from Chicago to the St. Louis area just to buy a pair of long underwear, made much sense. From his training, Deputy Deters was certain there was some type of illegal activity taking place in the defendant's vehicle. At that point, Deputy Deters returned to his squad car and called for an officer with a drug-detection dog to come to the scene to conduct a walk-around of the defendant's vehicle. While waiting, Deputy Deters completed a written warning for improper lane usage as a result of observing the defendant cross the fog line. Within a couple of minutes, Deputy Robert Rich of the Effingham County sheriff's department arrived with his narcotics-detection dog, Jaeger.
¶ 7 Deputy Rich had 22 years' experience with the sheriff's department and had been a canine handler since 2001. Deputy Rich testified about his and Jaeger's training and the procedures they employ when conducting a dog sniff of the exterior of a vehicle. Jaeger alerted to the driver's door, to the front passenger door, and again to the driver's door of the defendant's vehicle. Deputy Rich informed Deputy Deters that Jaeger had alerted on the vehicle, and he put the dog back in his squad car. Deputy Deters exited his squad car, went to the defendant's car, and asked him to get out. Deputy Rich began searching the interior of the defendant's car as Deputy Deters questioned the defendant. Deputy Rich testified that he was aware of Deputy Deters talking to the defendant, but he was searching the car and could not hear what they were saying. Deputy Deters testified that he told the defendant that Jaeger had alerted to the car, and Deputy Deters asked him if there was anything illegal in his car. The defendant told him there was a marijuana cigarette in an eyeglasses container in the car. Deputy Deters testified that he asked the defendant when he had last smoked marijuana, and the defendant replied that he had smoked it twice earlier in the day. The defendant acknowledged that he told Deputy Deters that he had smoked earlier that day, but denied that he had told him he smoked marijuana twice.
¶ 8 As Deputy Deters was talking to the defendant, Deputy Rich said that he had found a marijuana cigarette in the car. Deputy Rich then opened the trunk and found two large boxes of cigarettes. Deputy Deters opened one of the cartons of cigarettes and noticed that the top two cigarette packs were stamped with State of Missouri tax stamps, but not State of Illinois tax stamps. Deputy Deters testified that the defendant said times were tough, that he did not have a job, and that he was planning to sell the cigarettes. Deputy Deters placed the defendant under arrest for possession of cannabis and driving under the influence of drugs and placed him in the squad car. He then called for the defendant's car to be towed and began a tow inventory of the car. He took the ...