from the Circuit Court of Boone County. No. 14-CF-20
Honorable C. Robert Tobin III, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion. Justices Hutchinson and Birkett concurred in the
judgment and opinion.
1 Following a stipulated bench trial in the circuit court of
Boone County, defendant, Ken Heritsch, was convicted of
possession of more than 10 grams but not more than 30 grams
of a substance containing cannabis (720 ILCS 550/4(c) (West
2014)). Because defendant had a prior conviction of
possession of cannabis, the offense was a Class 4 felony.
Defendant was sentenced to a three-year term of probation and
90 days in the Boone County jail. Defendant's conviction
was based on the discovery of cannabis in his vehicle
following a traffic stop and a dog sniff. On appeal,
defendant argues that the trial court erred in denying his
motion to suppress that evidence. We affirm.
2 At the hearing on defendant's motion to suppress,
Belvidere police officer Richard Zapf testified that, on
January 24, 2014, at 7:04 p.m., he observed a silver Mercury
Sable proceeding west on Bypass 20. He had previously been
given a description of the vehicle in connection with a
report of a possibly impaired driver. Zapf's squad car
was equipped with a video camera. A video recording was
admitted into evidence. We note that the time stamp on the
video recording establishes a timeline of events. In the
description of facts that follows, parenthetical references
to the time stamp represent the time of day (in hours,
minutes, and seconds) at which particular events appear on
the video recording.
3 Zapf testified that he observed the Mercury cross the fog
line, after which he pulled the vehicle over (7:05:34 p.m.).
Shortly thereafter, officers Bogdonas and Coduto arrived at
the scene. At some point Zapf's shift supervisor,
Sergeant Gardner, also arrived at the scene. Zapf approached
the driver's side of the Mercury (7:06:11 p.m.).
Defendant was driving the Mercury. Zapf asked defendant for
his driver's license and proof of insurance. Zapf then
started to walk back to his squad car (7:07:29 p.m.). Before
reaching the squad car, Zapf spoke briefly with Bogdonas
about his observations of defendant's condition. At the
end of the conversation, Zapf asked Bogdonas to try to get
defendant's consent for a search of the Mercury (7:08:12
p.m. to 7:08:20 p.m.). Zapf then returned to his squad car
and ascertained that defendant's driver's license was
valid and that he had no outstanding warrants. Zapf decided
to issue a warning to defendant for crossing the fog line.
4 Meanwhile, Bogdonas had defendant step out of his vehicle,
and she searched his person. Defendant did not consent,
however, to a search of his vehicle. Bogdonas approached Zapf
and told Zapf that defendant was being an "asshole"
(7:09:53 p.m.). Zapf had been writing a warning to defendant,
but after speaking with Bogdonas, Zapf decided to issue
defendant a citation for improper lane usage. At that point,
Zapf had written only defendant's name on the warning.
Zapf then spoke briefly with Gardner. Zapf told Gardner that
he had decided to issue a citation to defendant because
Bogdonas said that defendant was a "jerk" (7:10:59
p.m.). Gardner then told Zapf to summon Officer Grubar, who
worked with a drug detection dog, to the scene (7:11:02
p.m.). Zapf made a radio call to Grubar at 7:11:07 p.m.
Grubar responded at 7:11:33 p.m. and told Zapf that she was
unavailable. Zapf ended the call at 7:11:55 p.m. Shortly
thereafter, Zapf received a radio communication from Boone
County deputy sheriff Kevin Smyth, who indicated that he
would bring his drug detection dog, Bosco, to the scene
(7:12:29 p.m. through 7:12:47 p.m.). When Smyth arrived, he
had Bosco conducted a free air sniff of the Mercury. Zapf
then searched the vehicle, found cannabis, and placed
defendant under arrest.
5 Zapf testified that, while waiting for Smyth to arrive, he
was in his vehicle and was working on defendant's
citation. Bosco completed the free air sniff while Zapf was
still working on the citation. When Zapf finished writing the
citation, he stepped out of his vehicle. Smyth was
questioning defendant. Zapf testified that he walked to
defendant, who was standing in front of Zapf's vehicle.
Smyth was walking back to his own vehicle. We note that the
video recording shows that, when Zapf exited his squad car,
he walked directly to defendant's vehicle.
6 Smyth testified that identifying drugs by odor was among
the things Bosco was trained to do. When Smyth arrived at the
scene, he retrieved Bosco and started walking him toward
defendant's vehicle. Defendant was not in the vehicle.
Zapf was sitting in his squad car. Smyth walked Bosco to the
driver's side of defendant's vehicle. Smyth saw Bosco
respond to the odor of drugs. Smyth opened the
driver's-side door, and Bosco jumped in the car and
indicated on an ashtray in the center console and on a
lunchbox. Smyth then pulled Bosco out of the vehicle and
approached defendant. The video recording shows that Bosco
climbed into defendant's vehicle at 7:18:09 p.m. Smyth
then walked over to defendant and spoke with him from 7:18:39
p.m. to 7:19:15 p.m. Zapf is then seen outside his vehicle,
walking toward defendant's vehicle a few seconds later.
As noted, Zapf testified that he stepped out of his squad car
when he finished writing the citation and that Smyth was
questioning defendant. Zapf testified that, when he stepped
out of his squad car, Smyth was returning to his own vehicle.
This appears to have taken place at about 7:19:15 p.m., a
little over a minute after Bosco detected drugs in
7 Zapf described the steps involved in writing a citation or
a warning. He testified that the steps for a citation and a
warning are the same up to the point where the officer must
look up and write the statutory citation for the traffic
violation on a citation and assign a court date. For either a
citation or a warning, the officer first uses his or her
computer to determine whether the motorist's license is
valid. This takes about two to three minutes. Next, the
officer uses his or her computer to check the motorist's
criminal history. It takes 2½ to 3 minutes to enter
the information needed for a criminal history search and
another 2 minutes or so for the computer to return the
results. The officer then begins to write up the warning or
citation. First the officer fills in a case number, which is
generated by dispatch when the officer calls in a traffic
stop. Next, the officer fills in the motorist's name,
address, eye color, hair color, and date of birth. The
officer also fills in the driver's license number and
expiration date. It takes 1½ to 2 minutes to fill in
that information. The officer then fills in the date and time
of the traffic stop. Next, the officer fills in information
about the vehicle, i.e. the make, model, and year,
the license plate number, and the expiration date of the
license plates. Zapf testified that he retrieved
defendant's vehicle information from his computer.
Because, in this case, the dispatch involved an identified
vehicle, this information was available to Zapf before he
pulled the vehicle over. Transferring the information onto
the ticket generally takes about a minute. When writing a
citation, the officer looks up the statutory citation for the
motorist's traffic violation. That takes about two
minutes. Finally the officer assigns a court date (which
takes about a minute) and then signs and dates the ticket.
8 Upon review of a ruling on a motion to suppress, the trial
court's findings of fact are entitled to great deference,
and we will reverse those findings only if they are against
the manifest weight of the evidence. People v.
Jarvis, 2016 IL App (2d) 141231, ¶ 17. The trial
court's legal conclusion whether the evidence must be
suppressed is subject to de novo review.
9 Although a police officer may stop and briefly detain a
motorist when the officer has observed the motorist
committing a traffic offense (People v. Abdur-Rahim,
2014 IL App (3d) 130558, ¶ 26), the traffic stop can
become unlawful "if it is prolonged beyond the time
reasonably required to satisfy its initial purpose"
(People v. Reedy, 2015 IL App (3d) 130955, ¶
25). The United States Supreme Court has observed that
"the tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure's
'mission'-to address the traffic violation that
warranted the stop." Rodriguez v. United
States, 575 U.S.___, ___, 135 S.Ct. 1609, 1614 (2015).
According to the Court, "[a]uthority for the seizure
thus ends when tasks tied to the traffic infraction are-or
reasonably should have been-completed." Id.
at___ 135 S.Ct. at 1614. In a routine traffic stop, the
officer's mission includes not only deciding whether to
issue a ticket, but also activities such as "checking
the driver's license, determining whether there are
outstanding warrants against the driver, and inspecting the
automobile's registration and proof of insurance."
Id. at___, 135 S.Ct. at 1615. Although an officer
may also conduct checks unrelated to the traffic stop's
mission, "he may not do so in a way that prolongs the
stop, absent the reasonable suspicion ordinarily demanded to
justify detaining an individual." Id. at___,
135 S.Ct. at 1615.
10 A dog sniff during a traffic stop does not inherently
violate the fourth amendment. Id. at___, 135 S.Ct.
at 1612 (citing Illinois v. Caballes, 543 U.S. 405
(2005)). However, because a dog sniff is not an ordinary
incident of a traffic stop (id. at___, 135 S.Ct. at
1615), it must be conducted in a manner that does not prolong
the stop. In Rodriguez, an officer conducted a dog
sniff after issuing a warning ticket to a motorist,
prolonging the stop by about seven or eight minutes.
Id. at___, 135 S.Ct. at 1613. The Eighth Circuit
ruled that the additional period of detention was a de
minimis intrusion on the motorist's liberty that did
not run afoul of the fourth amendment. The Supreme Court
disagreed, rejecting the Eighth Circuit's de
minimis exception to the rule that investigations
outside the mission of the stop may not prolong the stop.
Id. at ___, 135 S.Ct. at 1615-16.
11 The Rodriguez Court also rejected the
government's argument that "an officer may
'incremental[ly]' prolong a stop to conduct a dog
sniff so long as the officer is reasonably diligent in
pursuing the traffic-related purpose of the stop, and the
overall duration of the stop remains reasonable in relation
to the duration of other traffic stops involving similar
circumstances." Id. at___, 135 S.Ct. at 1616.
According to the Court, the government's argument was
essentially that an officer who expeditiously completes all
tasks related to the traffic ...