NO. 4-02-0953

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

           Plaintiff-Appellant,

           v.

WILLIAM A. MILLER,

           Defendant-Appellee.	)

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)	  Appeal from

  Circuit Court of 

  Livingston County

  No. 02CF163

  Honorable

  Harold J. Frobish,

  Judge Presiding.

_________________________________________________________________

		JUSTICE APPLETON delivered the opinion of the court:

		The State charged defendant, William A. Miller, with

unlawful possession with intent to deliver cannabis (720 ILCS

550/5(c) (West 2002)) and unlawful possession of drug parapherna

lia (720 ILCS 600/3.5(a) (West 2002)).  Defendant filed a motion

to quash the arrest and suppress evidence.  At the conclusion of

an evidentiary hearing, the trial court granted the motion.	 On appeal, the State argues the trial court erred in granting

defendant's motion and suppressing evidence.  We affirm.

I. BACKGROUND

		In August 2002, the State charged defendant by infor

mation with one count of unlawful possession with intent to

deliver cannabis (720 ILCS 550/5(c) (West 2002)), alleging he

knowingly and unlawfully possessed, with intent to deliver, more

than 10 grams, but not more than 30 grams, of a substance con

taining cannabis.  The State also charged him with one count of

unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a)

(West 2002)), alleging he knowingly possessed a gold metal smoking pipe with the intent to use it to smoke cannabis.

		In October 2002, defendant filed a motion to quash the

arrest and suppress evidence.  He alleged that at the time of the

stop, neither he nor any of the car's occupants had committed a

crime or violated any traffic laws.  Further, he argued the

police officer had stopped and detained him without probable

cause.

		In November 2002, the trial court held a hearing on

defendant's motion.  Defense counsel called Daniel Davis, a

police officer with the Pontiac police department.  Davis testi

fied he stopped a car driven by defendant at approximately 3:56

p.m. on August 24, 2002.  Approximately an hour before the stop,

Davis was advised of an anonymous tip that defendant had been

participating in illegal activity involving cannabis.  Davis was

therefore "looking to speak" with defendant, whose vehicle he saw

parked at a residence in Pontiac.  After following defendant,

Davis pulled him over because of "a defective muffler, loud exhaust system."  He characterized the muffler as "abnormally

loud, and when the vehicle accelerated, it was even louder, a

lower guttural sound."   

		After stopping defendant's car, Davis approached and

spoke with defendant regarding the muffler.  He obtained defen

dant's driver's license and insurance card and returned to his

squad car, while another officer spoke with two passengers in the

car.  Having determined that defendant had a valid license, Davis

wrote a warning for the muffler, returned to defendant’s car, and (according to Davis’s testimony) handed those documents to

defendant.  

		Defense counsel asked Davis:

			"Q. *** So, traffic stop completed at

that point, you’re giving him the warning and

giving him his insurance card and his license

back?

			A. That is correct.

			Q. At some point, did someone ask [de

fendant] to remove himself from the vehicle?

			A. Yes, I did, so I could speak with him

regarding the earlier complaint.

			Q. *** Was this after you had given him

the insurance card and license and warning

ticket?

			A. Yes.

			Q. And what was your motivation in ask

ing him to remove himself from the vehicle?

			A.  Just so I could speak with him sepa

rate from his two passengers regarding the

information that we had received."

  		Davis testified that Sergeant Hugh Roop was observing the stop in a separate vehicle approximately 200 feet away.  When

defendant got out of the car and walked toward Davis, Roop warned

Davis, over the radio, that he saw "some type of shiny object

similar to a knife, a large knife, in [defendant's] pocket."  Davis asked defendant about the object, which, defendant admit

ted, was a knife.  Davis removed a "large sheath knife" and set

it on the hood of the car "for officer safety."  Davis asked

defendant if there was anything else on him he should know about,

and defendant told him "about the cannabis and other parapherna

lia in his pocket."  Davis then searched defendant for other

potential weapons and found a bag of cannabis and a gold smoking

pipe.  He placed defendant under arrest.  A search of defendant's

car revealed a "large amount of cannabis."  

		Defense counsel then played a videotape, shot from

Davis's squad car, showing the traffic stop.  Davis narrated the

events up to when he pulled defendant's car over.  The videotape

showed Davis approaching the driver's side of the car and another

police officer, Adam Fulkerson, on the passenger side.  Thereaf

ter, defense counsel fast-forwarded the tape to when Davis

returned to defendant's car, because the trial court wanted to

hear that conversation.  Upon watching that sequence, the court

remarked that Davis appeared to say, "'[W]ould you step on out,

would you step on out for a second[?']"  

		The court continued, in part, as follows:

			"Not wanting to cut anybody short, but

the [a]ppellate [c]ourt when they get this

will say, at that instant he was seized, it's

an absolute seizure of the defendant.  The

[a]ppellate [c]ourt will say, this was a good

stop, if you have excessive or unusual noise out of your muffler, the police can stop. 

The [a]ppellate [c]ourt will say the traffic

stop was *** 100[%] completed.

.  ***

* * *

			***  But, I mean, we've got a good stop,

we've got the traffic stop completed, we've

got the defendant in the car.  The other

officers didn't add a lot other than in his

mind, of the defendant or anybody else, this

looks like it's pretty serious.  But this

amounts to an instruction by the officer to

get out of the car.  He is seized at that

point, and it's at that point that the stop

is tainted."

		The trial court granted the State permission to cross-

examine Davis.  Davis agreed it appeared, from the videotape,

that he said to defendant, "Hey, William, could you hop on out

for me for a second?"  He testified that if defendant had stated

he did not want to get out of the car, the stop "would have been

completed" and he would have let him go.  The videotape showed

that after Davis asked defendant to "hop on out," Davis walked

away from the car.  Davis did not open the door or order defen

dant out of the car.  Davis testified that defendant exited his

car, after which Davis removed the knife from defendant's belt

and asked him if he had anything else he should know about,

whereupon defendant "voluntarily told [him] that he had a pipe

and a bag of weed in his left pocket."  

		Watching the videotape, one can see Davis approaching the driver's window of defendant's car, collecting documents from

defendant, and returning, documents in hand, to his squad car. 

Then, after a few minutes, one can see Davis walking back to

defendant's car, documents in hand, and, without handing defen

dant anything, asking him to get out.  As defendant gets out of

the car and follows Davis to the rear of the car, Davis still has

the documents in his hand.   

		The trial court granted defendant's motion to suppress,

characterizing this situation "as a direction to get out of the

car."  The State filed a certificate of substantial impairment

and appealed the trial court's ruling pursuant to Supreme Court

Rule 604(a) (188 Ill. 2d R. 604(a)).  

II. ANALYSIS

		The State argues the trial court erred in granting

defendant's motion to quash the arrest and suppress evidence.  We

disagree.	

A. Standard of Review and Burden of Proof	

		The appeal of a ruling on a motion to suppress presents

mixed questions of law and fact.  People v. Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003).  We will not disturb the 

trial court's factual determinations and assessment of witnesses'

credibility unless they are manifestly erroneous.  People v. Anthony, 198 Ill. 2d 194, 200-01, 761 N.E.2d 1188, 1191 (2001).  We review de novo the trial court's ultimate decision of whether to suppress the evidence.  See People v. Crane, 195 Ill. 2d 42, 51, 743 N.E.2d 555, 562 (2001).

		On a motion to suppress evidence, the defendant has the

burden of proving the search and seizure were unlawful.  725 ILCS

5/114-12(b) (West 2002).  "However, once the defendant makes a

prima facie showing of an illegal search and seizure, the burden shifts to the State to produce evidence justifying the intru

sion."  People v. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000).  

B. The Traffic Stop

		The fourth amendment to the United States Constitution

guarantees "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures."  U.S. Const., amend. IV.  Similarly, the

Illinois Constitution affords citizens with "the right to be

secure in their persons, houses, papers[,] and other possessions

against unreasonable searches, [and] seizures."  Ill. Const.

1970, art. I, §6.  Our supreme court has interpreted the search

and seizure clause of section 6 in a manner consistent with the

United States Supreme Court's fourth amendment jurisprudence. 

People v. Gonzalez, 204 Ill. 2d 220, 224, 789 N.E.2d 260, 264 (2003). 

		A temporary detention of an individual during a vehicle

stop constitutes a "seizure" of his or her person within the

meaning of the fourth amendment, even if the stop is brief and

for a limited purpose.  Whren v. United States, 517 U.S. 806, 809-10, 135 L. Ed. 2d 89, 95, 116 S. Ct. 1769, 1772 (1996).  The Supreme Court has held:

		"An automobile stop is thus subject to the

constitutional imperative that it not be

'unreasonable' under the circumstances.  As a

general matter, the decision to stop an auto

mobile is reasonable where the police have

probable cause to believe that a traffic

violation has occurred."  Whren, 517 U.S. at 810, 135 L. Ed. 2d at 95, 116 S. Ct. at 1772.

		Our own supreme court has explained:

		"Because a traffic stop is more analogous to

a Terry investigative stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to a formal arrest, the

reasonableness of a traffic stop is analyzed

under Terry principles.  [Citation.]  A Terry analysis involves a dual inquiry: '(1)

"whether the officer's action was justified

at its inception," and (2) "whether it was

reasonably related in scope to the circum

stances which justified the interference in

the first place."'  Gonzalez, 204 Ill. 2d at 228, [789 N.E.2d at 266,] quoting Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879."  People v. Bunch, 207 Ill. 2d 7, 13-14, 796 N.E.2d 1024, 1029 (2003).

		In the case sub judice, the legality of the initial stop of defendant's vehicle under the first prong of Terry is not at issue.  Both parties agree Davis was justified in stopping

defendant's vehicle because of his observation of a traffic

violation.  He pulled defendant over because his car had an

"abnormally loud" muffler, a violation of section 12-602 of the

Illinois Vehicle Code (625 ILCS 5/12-602 (West 2002)).  See also People v. Sorenson, 196 Ill. 2d 425, 433, 752 N.E.2d 1078, 1084 (2001) (stop of vehicle justified based on officer's observation

of traffic violation).  Thus, Davis had probable cause to initi

ate a valid traffic stop.

C. The Completion of the Traffic Stop

		Under the second prong of the Terry analysis, a court considers the length of the detention and the manner in which it

was carried out.  Bunch, 207 Ill. 2d at 14, 796 N.E.2d at 1029.  The Supreme Court has stated "an investigative detention must be

temporary and last no longer than is necessary to effectuate the

purpose of the stop."  Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325 (1983) (plurality opin

ion).  Upon initiating a minor traffic stop, a police officer may

briefly detain the driver to request his driver's license,

determine its validity and, under certain circumstances, conduct

a speedy warrant check.  Ortiz, 317 Ill. App. 3d at 220, 738 N.E.2d at 1018.  After stopping defendant, Davis rightfully

obtained defendant's driver's license and insurance information

to verify in his squad car. 

		Once a check of a driver's license and any warrant information is completed, "if no further suspicion is aroused,

the traffic stop must cease and the individual should no longer

be detained."  Ortiz, 317 Ill. App. 3d at 220, 738 N.E.2d at 1018.  The police officer should then issue a ticket or warning

and allow the driver to continue on his or her way.  See People v. Koutsakis, 272 Ill. App. 3d 159, 164, 649 N.E.2d 605, 609 (1995) (Third District).

		Here, Davis testified he returned defendant's driver's

license and insurance card prior to asking defendant to step out of his car.  If such was the case, the traffic stop ended when

Davis returned the driver's license and insurance card and gave

defendant either a verbal or written warning.  See People v. Brownlee, 186 Ill. 2d 501, 516, 713 N.E.2d 556, 565 (1999) (traffic stop concluded when officer returned driver's license

and insurance card and told the defendant no citations would be

issued); Ortiz, 317 Ill. App. 3d at 221, 738 N.E.2d at 1018 (investigative stop complete after officer returned the defen

dant's driver's license and issued a warning).

		Even if, as the videotape seems to show, Davis did not

return the license and insurance card prior to requesting defen

dant to exit the vehicle, the traffic stop was nevertheless

complete.  When Davis returned to defendant's car, he had com pleted his determination of the motor vehicle offense and verifi

cation of defendant's driver's license and insurance information. 

He had nothing else to do at that point other than return defen dant's documents to him.  We must assess Davis's direction or request to defendant to get out of the car according to the

second prong of the Terry analysis, as used in Gonzalez.

		As the trial court correctly found, the initial traffic

stop, whether pretextual or not, was valid.  The scope of the

permissible "seizure" of defendant was limited, however, to the

traffic offense, absent other articulable facts to justify

prolonging the seizure.  Bunch, 207 Ill. 2d at 16, 796 N.E.2d at 1036.  

		We find the rule the supreme court expressed in

Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564, to be applicable here.  In Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565, the police completed all that was necessary for their traffic stop. 

They then delayed allowing the vehicle to leave before asking for

permission to search the car.  Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565-66.  The supreme court agreed that during the

delay, the driver of the car could not have believed himself free

to leave.  Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 566.

		The videotape here shows that while Davis had nothing

more to do to complete the traffic stop, he held on to defen

dant's documents, thereby preventing him from leaving.  See

People v. Hardy, 142 Ill. App. 3d 108, 118, 491 N.E.2d 493, 500 (1986) (retention of driver's license tends to negate freedom to

leave).  His request for defendant to exit the car therefore was

the same as the request in Brownlee to search the car, i.e., without articulable facts justifying a Terry investigative seizure.  The subsequent search is therefore tainted, and the fruits thereof were properly suppressed.  See Wong Sun v. United States, 371 U.S. 471, 484, 9 L. Ed. 2d 441, 453, 83 S. Ct. 407, 416 (1963).

III. CONCLUSION

		For the foregoing reasons, the decision of the trial

court granting defendant's motion to suppress is affirmed.

		Affirmed.

		STEIGMANN, J., concurs.

		TURNER, J., dissents.

		JUSTICE TURNER, dissenting:

		Although I agree with the majority that Officer Davis

had probable cause to initiate a valid traffic stop, I disagree

with the majority's conclusion that Officer Davis' request for

defendant to exit the car tainted the subsequent search.  There

fore, I dissent.

		This case is factually distinguishable from our supreme

court's decision in Brownlee, relied upon by the majority.  In that case, police officers stopped a vehicle and approached the

car on both sides.  Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559.  The officers obtained the identities of the occupants and

checked for and found no outstanding warrants.  Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559.  The officers decided not to

issue any citations, but they did agree to ask the driver for

permission to search the car.  Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559.  One officer returned to the driver his license

and insurance card and explained that no citations would be

issued.  Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559.  Thereafter, the officers stood near the car's doors for about two

minutes and said nothing.  Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565-66.  After the pause, the officer asked the driver

to search the vehicle, and the subsequent search revealed con

trolled substances.  Brownlee, 186 Ill. 2d at 506-07, 713 N.E.2d at 559-60.

		This case is also factually distinguishable from this

court's opinion in Ortiz.  In that case, an officer with the Illinois State Police stopped the defendant driver for speeding

and asked him for his driver's license and insurance information,

which defendant provided.  Ortiz, 317 Ill. App. 3d at 215, 738 N.E.2d at 1014.  After asking general questions concerning the

driver's destination and the ownership of the vehicle, the

officer returned to his squad car and ran a criminal history

check.  Ortiz, 317 Ill. App. 3d at 215, 738 N.E.2d at 1014-15.  The officer then decided to call in a canine unit, which arrived

prior to the officer's receipt of the defendant's criminal

history or the completion of his paperwork.  Ortiz, 317 Ill. App. 3d at 215-16, 738 N.E.2d at 1015.  The officer walked back to the

truck and asked the defendant to exit the vehicle.  Ortiz, 317 Ill. App. 3d at 216, 738 N.E.2d at 1015.  Thereafter, the officer

issued the defendant a warning and returned his license, and,

according to his testimony, the traffic stop was complete at that

time.  Ortiz, 317 Ill. App. 3d at 216, 738 N.E.2d at 1015.  However, the officer then asked questions of the defendant, and

after he refused to consent to a search of the truck, the canine

unit eventually alerted to drugs in the vehicle.  Ortiz, 317 Ill. App. 3d at 216-17, 738 N.E.2d at 1015-16.

		In the case sub judice, however, Officer Davis did not ask defendant to step out of the car after he returned his

license and insurance card.  Nor did Officer Davis explain that

citations would or would not be issued prior to asking defendant

to exit the vehicle.  Based on the videotape evidence, the

investigative stop of defendant had not ended, as the stops had in Brownlee and Ortiz, and Officer Davis could have asked defen dant to exit the vehicle.  During a lawful traffic stop, a police

officer may order the driver out of the vehicle (Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337, 98 S. Ct. 330, 333 (1977)) as well as the passengers (Maryland v. Wilson, 519 U.S. 408, 415, 137 L. Ed. 2d 41, 48, 117 S. Ct. 882, 886 (1997)).  See Sorenson, 196 Ill. 2d at 433, 752 N.E.2d at 1084 ("following a lawful traffic stop, police may, as a matter of course, order

the driver and any passengers out of the vehicle pending comple

tion of the stop").  Thus, as no delay existed here, the major

ity's conclusion that the request for defendant to exit the car

is the same as that in Brownlee is erroneous.

		At the hearing, Officer Davis testified his reason for

asking defendant to exit the car was "to speak with him about the

complaint" involving his alleged cannabis activity.  This,

however, is not fatal to the State's case under our fourth

amendment analysis.  In Ohio v. Robinette, 519 U.S. 33, 35, 136 L. Ed. 2d 347, 352, 117 S. Ct. 417, 419 (1996), Deputy Roger Newsome stopped the defendant, Robert Robinette, for speeding. 

Newsome received the defendant's license and ran a computer

check.  Robinette, 519 U.S. at 35, 136 L. Ed. 2d at 352, 117 S. Ct. at 419.  Deputy Newsome then asked the defendant to exit his

car, issued him a verbal warning, and returned his license. 

Robinette, 519 U.S. at 35, 136 L. Ed. 2d at 352, 117 S. Ct. at 419.  Thereafter, Newsome asked the defendant if he was carrying

any contraband, and the defendant replied he was not.  Robinette, 519 U.S. at 35-36, 136 L. Ed. 2d at 352, 117 S. Ct. at 419.  Deputy Newsome then received the defendant's consent to search

his car, and the officer found controlled substances.  Robinette, 519 U.S. at 36, 136 L. Ed. 2d at 352, 117 S. Ct. at 419.

		The Supreme Court found the fourth amendment does not

require a police officer to advise a lawfully seized defendant

that he is free to go before a consent to search will be deemed

voluntary.  Robinette, 519 U.S. at 39-40, 136 L. Ed. 2d at 355, 117 S. Ct. at 421.  The Supreme Court also noted the Supreme

Court of Ohio, in ruling the search resulted from an unlawful

detention, held that Deputy Newsome had returned to the defen

dant's car and asked him to exit, after he had determined not to

give him a ticket.  Robinette, 519 U.S. at 38, 136 L. Ed. 2d at 353-54, 117 S. Ct. at 420.  The Supreme Court, however, found "the subjective intentions of the officer did not make the

continued detention of [the defendant] illegal under the [f]ourth

[a]mendment."  Robinette, 519 U.S. at 38, 136 L. Ed. 2d at 354, 117 S. Ct. at 420.  Moreover, the Supreme Court stated "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."  Robinette, 519 U.S. at 38, 136 L. Ed. 2d at 354, 117 S. Ct. at 421.

		Based on the foregoing, Officer Davis could ask defen

dant to exit his vehicle prior to the stop's completion notwith

standing his subjective intentions because defendant's vehicle

had been lawfully detained for a traffic violation and defendant could have been ordered out prior to the stop's conclusion.  See

Robinette, 519 U.S. at 38, 136 L. Ed. 2d at 354, 117 S. Ct. at 420 (continued detention of the defendant based on officer's

subjective intentions did not violate fourth amendment); United States v. Mendenhall, 446 U.S. 544, 554 n.6, 64 L. Ed. 2d 497, 509 n.6, 100 S. Ct. 1870, 1877 n.6 (1980) (the subjective inten

tions of a police officer are irrelevant to a fourth amendment

analysis, except to the extent they have been communicated to the

defendant).  Thus, the effect of the majority's holding is to

ignore the established precedent of the United States Supreme

Court.

		In People v. Staley, 334 Ill. App. 3d 358, 360, 778 N.E.2d 362, 363-64 (2002), a Pontiac police officer pulled a

driver over for operating a vehicle with a suspended registration

and later found the driver had no insurance.  The police officer

sat in his squad car to run a computer check and to write out two

citations and then returned to the driver's vehicle to ask her to

get in the squad car to issue the citations.  Staley, 334 Ill. App. 3d at 361, 778 N.E.2d at 364.  The officer then asked the

driver for her consent to search the vehicle, which she gave. 

Staley, 334 Ill. App. 3d at 361, 778 N.E.2d at 364.  The officer testified about 18 minutes elapsed from the stop of the car until

he issued the citations and received the driver's consent to

search.  Staley, 334 Ill. App. 3d at 361, 778 N.E.2d at 364.  

		This court held the 18-minute traffic stop was reason

able, not unduly long, and affirmed the defendant passenger's

conviction for possession of a controlled substance.  Staley, 334 Ill. App. 3d at 366-67, 369, 778 N.E.2d at 368-69, 370.  Thus, an

officer's request that a driver step out of the vehicle to issue

a citation does not impermissibly extend the traffic stop.  The

majority here would conclude the officer in Staley could not have asked the defendant to get in his squad car to issue the cita

tions because "the traffic stop was nevertheless complete" (slip

op. at 10) even though the temperature in that case was -9

degrees.  Staley, 334 Ill. App. 3d at 360, 778 N.E.2d at 363.

		The United States Supreme Court has stated 			

			"[t]The hazard of accidental injury from

passing traffic to an officer standing on the

driver's side of the vehicle may also be

appreciable in some situations.  Rather than

conversing while standing exposed to moving

traffic, the officer prudently may prefer to

ask the driver of the vehicle to step out of

the car and off onto the shoulder of the road

where the inquiry may be pursued with greater

safety to both."  Mimms, 434 U.S. at 111, 54 L. Ed. 2d at 337, 98 S. Ct. at 333.

Although our facts here do not indicate any particular hazardous

conditions, the majority's holding makes no exception for such

situations.  The majority now forces police officers to brave

inclement weather and roadside conditions when returning a

driver's license or issuing citations, unable to ask a driver out

of the car prior to the stop's completion. 

		Here, Officer Davis asked defendant to step out of the car roughly six minutes after stopping the vehicle.  After

Officer Davis asked defendant to "hop on out" of the car, but

before he could complete the traffic stop, subsequent events in

quick succession led to the discovery of incriminating evidence

on defendant's person.  The trial court's conclusion that the

traffic stop was completed was therefore against the manifest

weight of the evidence.  Further, I would find Officer Davis had

probable cause to arrest defendant when defendant volunteered he

possessed cannabis and a smoking pipe resulting in the subsequent

discovery of those items on his person.  I would therefore

reverse the trial court's judgment.