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People v. Litwhiler

Court of Appeals of Illinois, Third District

June 9, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
KARL R. LITWHILER, Defendant-Appellant

As Corrected.

Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 10-CF-441. Honorable Ted J. Hamer, Judge, Presiding.

SYLLABUS

The trial court properly denied defendant's motion to suppress the psilocybin mushrooms discovered in a warrantless search of defendant's vehicle after he was stopped for speeding and a drug dog alerted while walking around the vehicle, notwithstanding defendant's contention that the State failed to establish the reliability of the dog's alert, since the arresting officer testified that he and his dog completed a training program on narcotics detection, he was certified as a drug dog handler and his dog was certified for narcotic and apprehension work and recertified twice a year, the records showed that narcotics were found 66% of the time the dog alerted, and based on the record, there was sufficient evidence of the dog's reliability.

Santiago A. Durango (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

Terence M. Patton, State's Attorney, of Cambridge (Laura E. DeMichael (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Lytton and Justice Carter concurred in the judgment and opinion.

OPINION

SCHMIDT, JUSTICE

Page 142

[¶1] The State charged and convicted defendant, Karl Litwhiler, of controlled substance trafficking (720 ILCS 570/401.1 (West 2010)), unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(11) (West 2010)), and unlawful possession of a controlled substance (720 ILCS 570/402(a)(11) (West 2010)). The circuit court of Henry County sentenced defendant to 12 years' incarceration. Defendant appeals his convictions, claiming the trial court erred in denying his motion to suppress the evidence, as the State failed to provide proper indicia of reliability regarding a drug dog's alert.

[¶2] BACKGROUND

[¶3] Defendant's conviction stems from a traffic stop during which a police officer found him in possession of 27.46 pounds of psilocybin mushrooms, a controlled substance. The stop occurred on December 11, 2010, on Interstate 80.

[¶4] At defendant's preliminary hearing, Sergeant Floyd Blanks of the Illinois State Police testified that he was performing stationary radar patrol on Interstate 80 when he observed a white sport utility vehicle (SUV) traveling toward his location at a velocity that appeared to exceed the 65-mile-per-hour speed limit. He activated his radar, which showed the vehicle traveling at 72 miles per hour, so he effectuated a traffic stop.

[¶5] Blanks noted defendant was driving the vehicle, which was a rental. Defendant's hands began to shake and defendant showed signs of nervousness. Dressed in a suit and tie, defendant explained to Blanks that he was traveling across the country. Blanks observed a large Disney princess box in the cargo area of the SUV.

[¶6] Blanks stated that minutes later, Trooper Andrew Fratzke arrived with his canine, Viper, and conducted a free-air sniff of the outside of the SUV. Viper alerted; the officers searched the SUV, finding almost 30 pounds of psilocybin mushrooms inside the Disney princess box. The defendant subsequently stated that he agreed to transport 28 pounds of psilocybin mushrooms for $2,500 and also explained that he had a cannabis cigarette in his shoe.

[¶7] Defendant filed a motion to suppress the evidence obtained at the search, and the matter proceeded to a hearing on defendant's motion. At the hearing, defendant testified that he was traveling from Portland, Oregon, to New York when he was stopped. He claimed to be traveling at 64 miles per hour at the time of the stop. Knowing he was transporting illegal narcotics, he set his cruise at 64 miles per hour so he would not be stopped for speeding. He was traveling downhill when he spotted Sergeant Blanks' squad car parked in the median. He checked the speedometer and did not notice any fluctuation in his speed. He neither touched his brakes nor altered his speed.

[¶8] Trooper Fratzke testified that he has been a canine handler for 11 to 12 years. He explained that when a dog is paired with a handler, the two attend a 10-week training session in which the dog is taught apprehension, tracking, and the detection and recognition of different scents and odors of contraband. Viper was trained to identify the odor of marijuana, cocaine, crack cocaine, methamphetamines, and heroin. At the end of the training period, Viper was ...


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