Illinois Official Reports 

Appellate Court

People v. Duran, 2016 IL App (1st) 152678

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. 

JOSE DURAN, Defendant-Appellee.

District & No. First District, Sixth Division 

Docket No. 1-15-2678

Filed October 7, 2016

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 13-CR-06164; the 

Hon. Rickey Jones, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

John E. Nowak, and Kathryn F. Sodetz, Assistant State’s Attorneys, of 

counsel), for the People.

John Paul Carroll, of Naperville, for appellee.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the 

court, with opinion.

Justices Rochford and Delort concurred in the judgment and opinion.
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 OPINION 

¶ 1 The defendant, Jose Duran, was charged by indictment with one count of possession with 

intent to deliver 900 or more grams of methamphetamine in violation of sections 55(a)(1) and 

55(a)(2)(F) of the Methamphetamine Control and Community Protection Act (720 ILCS 

646/55(a)(1), (a)(2)(F) (West 2012)). The defendant filed a motion to quash his arrest and 

suppress evidence, contending, inter alia, that the search of the vehicle in which he was riding 

and the attaché bag in which the methamphetamine was found was conducted without consent, 

articulable factual justification, or probable cause. Following an evidentiary hearing, the trial 

court granted the defendant’s motion, finding that the defendant was arrested without probable 

cause and, as a consequence, the seizure of the methamphetamine was unlawful. The State 

filed a motion for reconsideration of the trial court’s order, which was denied. Thereafter, the 

State filed a notice of substantial impairment and a notice of appeal. For the reasons which 

follow, we reverse the trial court’s order granting the defendant’s motion to quash arrest and 

suppress evidence. 

¶ 2 When reviewing a ruling on a motion to suppress evidence, we accord great deference to 

the trial court’s factual findings, which we will reverse only if those findings are against the 

manifest weight of the evidence; however, we review de novo the ultimate question of the legal 

challenge to the trial court’s ruling. People v. Sutherland, 223 Ill. 2d 187, 196-97 (2006). 

¶ 3 After conducting an evidentiary hearing on the defendant’s motion to quash arrest and 

suppress evidence, the trial court found the testimony of the State’s witnesses to be credible. 

The following factual recitation is based upon that testimony. 

¶ 4 On February 26, 2013, Chicago police officers and agents of the federal Drug Enforcement 

Administration (DEA) were assigned to the DEA Airport Task Force Group. On that date, 

Chicago Police Sergeant Dennis O’Connor received a telephone call from DEA Special Agent 

Leach stationed in San Diego, California, informing him that information had been received 

from a confidential informant that a woman named Valerie Santos “would be transporting 

narcotics from San Diego to Chicago O’Hare Airport.” Agent Leach did not disclose the date 

that the transportation was to take place or the type of narcotics involved. He did, however, 

inform Sergeant O’Connor that Santos would be staying at the Whitehall Hotel located at 105 

East Delaware Place in Chicago but did not specify the date that she would be checking in. 

Agent Leach never gave Sergeant O’Conner any information as to the reliability of the 

confidential informant. 

¶ 5 Sergeant O’Connor relayed the information that he received to DEA Agent Glynn, DEA 

Agent Aristidis Karabinas, and Chicago Police Officer Raymond Caballero; all of whom are 

members of the DEA Airport Task Force Group. Based upon that information, Agents Glynn 

and Karabinas and Officer Caballero went to the Whitehall Hotel to watch for Santos. Upon 

arrival at the hotel, Agent Karabinas ascertained from the hotel manager that a Ms. Santos was 

registered for that day. At approximately 4:45 p.m., a taxi arrived at the hotel and a woman 

exited. Agent Karabinas recognized the woman as Valarie Santos from a picture he had 

received from the DEA’s California office. At the time that Santos exited the taxi, she was 

carrying a black attaché bag. Agent Karabinas stationed himself in a room across from the one 

in which Santos was registered, while Agent Glynn and Officer Caballero remained in the 

hotel lobby. From his vantage point, Agent Karabinas was able to see Santos enter her hotel 

room carrying the black attaché bag. About two hours later, Agent Karabinas saw a man and a 
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woman enter Santos’s room where they remained for several minutes. When the man left 

Santos’s room, he was carrying the black attaché bag. Agent Karabinas telephoned the other 

members of his team who were conducting surveillance in the hotel lobby and informed them 

that a man and a woman had entered Santos’s room and left several minutes later. The man and 

the woman were observed leaving the hotel and getting into a black Cadillac Escalade. The 

woman drove the vehicle while the man rode in the passenger’s seat. Agent Karabinas later 

learned that the woman was Erica Armas and the man was the defendant.

¶ 6 Agent Glynn and Officer Caballero got into separate vehicles and followed the Cadillac 

Escalade as it went west from the hotel to the Dan Ryan Expressway and then proceeded south 

on the Stevenson Expressway. The Cadillac exited the expressway at Kedzie Avenue and 

travelled northbound. Using the Chicago police radio frequency, one of the members of the 

DEA team who was following the Cadillac requested assistance from a marked police vehicle 

in stopping the Cadillac. At approximately 7:40 p.m. the Cadillac reached 33rd Street and was 

seen by uniformed Chicago police officers Perez and Sanchez, who were patrolling in a 

marked police vehicle. Officer Perez stated that he had heard a broadcast over the police radio 

that Chicago police officers and DEA agents were following a black Cadillac Escalade that 

was “suspected of having narcotics in it.” Officer Sanchez, who was driving, made a U-turn 

and followed the Cadillac northbound on Kedzie Avenue. After about two blocks, officers 

Sanchez and Perez stopped the Cadillac for traveling too fast for conditions. The officers 

exited their marked patrol car and approached the Cadillac. Officer Sanchez spoke to the 

driver, Armas, and obtained her driver’s license and insurance card. Officers Sanchez and 

Perez then returned to their vehicle. 

¶ 7 Officer Caballero stopped his vehicle directly behind the marked squad car and approached 

the Cadillac. He informed Armas that they were conducting a narcotics investigation and asked 

her if they could search the vehicle. According to Officer Caballero, Armas gave him oral 

permission to search the Cadillac. Armas and the defendant exited the Cadillac, and the 

defendant was immediately handcuffed and placed in the marked police car. 

¶ 8 Approximately five minutes after the Cadillac Escalade was pulled over, Agent Glynn, a 

DEA narcotics canine officer, arrived on the scene with a dog that is certified to detect 

narcotics, including methamphetamine. Officer Caballero informed Agent Glynn that Armas 

had given her consent for a search of the Cadillac. Agent Glynn had the dog search the exterior 

of the Cadillac and then allowed the dog to go inside of the vehicle. The dog gave an alert for 

the presence of narcotics upon sniffing the black attaché bag, which was located on the rear 

seat of the vehicle. The bag was removed from the vehicle, opened, and a powdery substance 

was found inside. According to Officer Caballero, it was at that time that Armas and the 

defendant were placed under arrest. After being tested, the powdery substance in the attaché 

bag was found to be methamphetamine. 

¶ 9 The defendant testified at the evidentiary hearing. He admitted that he and Armas went to 

Santos’s hotel room and that he left carrying the black attaché bag, which he placed in the rear 

of the Cadillac Escalade. He stated that, at the time that the vehicle was stopped by the police, 

Armas was driving and he was seated in the front passenger’s seat. According to the defendant, 

as soon as the Cadillac was stopped, he was handcuffed and taken to a marked police car. He 

testified that he could not hear any of the conversations that Armas had with the police officers. 

The defendant stated that he never gave the police permission to search the attaché bag. 
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Additionally, he admitted that he was not the owner of the Cadillac Escalade and that Armas 

owned the vehicle. 

¶ 10 Following the evidentiary hearing, the trial court found that the police officers “had a 

reasonable articulable suspicion to believe that the defendant and others were involved in 

criminal narcotics activity and that Ms. Armas was driving too fast for road conditions.” The 

trial court concluded that the officers were “justified in stopping the vehicle, detaining the 

occupants, and having them step out of the vehicle to conduct a Terry investigation.” The trial 

court also found that the officers obtained valid consent from Armas to search her vehicle and 

that the dog’s alert upon sniffing the attaché bag was “sufficiently reliable to establish probable 

cause to believe that the bag contained illegal drugs and, therefore, the officers were justified in 

searching the bag, seizing the drugs, and arresting the defendant and Ms. Armas.” The trial 

court also found that the defendant’s testimony regarding his detention and custody after the 

Cadillac was stopped was credible and, based on that testimony, found that the defendant 

remained handcuffed and confined in a police car from the time that he was removed from the 

Cadillac. The trial court concluded that the defendant was arrested without probable cause 

prior to the dog’s alert to the presence of narcotics in the attaché bag and, therefore, “the 

seizure was unlawful.” As a consequence, the trial court granted the defendant’s motion to 

quash arrest and suppress evidence. 

¶ 11 In urging reversal of the trial court’s order granting the defendant’s motion, the State 

makes a number of arguments. However, in its brief, the State has commingled arguments 

which should have been addressed separately, leaving us to unravel the package and attempt to 

address each of the arguments in a logical sequence. 

¶ 12 We first address the State’s contention that the trial court erred in finding that the defendant 

was under arrest when he was handcuffed and confined in a police car immediately after being 

removed from the Cadillac. The State contends that, assuming the defendant was handcuffed 

when he exited the Cadillac, his detention was incidental to a valid investigatory stop (see 

Terry v. Ohio, 392 U.S. 1 (1968)), and the fact that he was handcuffed did not transform the 

Terry type stop into an arrest (People v. Colyar, 2013 IL 111835, ¶ 46; see also People v. 

Waddell, 190 Ill. App. 3d 914, 928 (1989)). The State argues that, because, as the trial court 

found, the officers had reasonable suspicion that the defendant was involved in criminal 

narcotic activity, they were justified in handcuffing the defendant as a safety precaution 

without transforming his temporary detention incident to a valid traffic stop into an arrest. We 

agree. 

¶ 13 The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and 

article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6) guarantee 

the right of individuals to be free from unreasonable searches and seizures. Generally, the 

seizure of an individual without a warrant is valid only if supported by probable cause. People 

v. Jackson, 232 Ill. 2d 246, 274-75 (2009). However, a limited exception exists when, under 

appropriate circumstances, a police officer briefly stops a person for investigatory purposes. 

Terry, 392 U.S. at 21-22. Such investigatory stops have come to be known as Terry stops. A 

police officer may briefly detain an individual for questioning if the officer reasonably believes 

that the person has committed, or is about to commit, a crime. Id. at 22. 

¶ 14 The decision to stop a motor vehicle is reasonable when the police have probable cause to 

believe that a traffic violation has been committed. Whren v. United States, 517 U.S. 806, 810 

(1996). As the occupants of a motor vehicle which is stopped by the police are considered to 
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have been seized within the meaning of the fourth amendment at the moment that the vehicle is 

stopped (Maryland v. Wilson, 519 U.S. 408, 413-14 (1997)), their detention during the traffic 

stop is subject to the requirement of reasonableness. Whren, 517 U.S. at 809-10. The 

reasonableness of a traffic stop and the resulting detention of its occupants are analyzed 

pursuant to the principles articulated by the Supreme Court in Terry. People v. Gonzalez, 204 

Ill. 2d 220, 226 (2003). Consequently, detention following a valid traffic stop must be limited 

in both scope and duration. People v. Johnson, 408 Ill. App. 3d 107, 113 (2010). 

¶ 15 The defendant does not contend, nor could he, that the initial stop of the vehicle in which 

he was riding was unreasonable. As the trial court found, the police were justified in stopping 

the vehicle based on their observation that it was being driven too fast for conditions. 

Nevertheless, the actions of the police after stopping the Cadillac must have been reasonably 

related in scope to the circumstances which justified the vehicle being stopped in the first 

place. 

¶ 16 Handcuffing is the type of activity that may convert an otherwise lawful investigatory stop 

into an arrest because it heightens the intrusiveness of a temporary detention. People v. Wells,

403 Ill. App. 3d 849, 857 (2010). However, the use of handcuffs does not, by itself, convert a 

lawful investigatory stop into an arrest. People v. Arnold, 394 Ill. App. 3d 63, 71 (2009). 

¶ 17 In this case, not only was the vehicle in which the defendant was riding stopped based on 

the commission of a traffic violation, but the trial court also found that the officers had reason 

to believe that the defendant was involved in criminal narcotics activity. The defendant, 

however, appears to dispute the trial court’s finding in that regard. We believe that the trial 

court’s finding is supported by the evidence introduced at the evidentiary hearing.

¶ 18 A Terry type stop is permissible when the police have reasonable suspicion, based upon 

specific articulable facts, that a person has committed a crime. People v. Croft, 346 Ill. App. 3d 

669, 674-75 (2004). In determining whether there was a reasonable suspicion of criminal 

activity, we consider the totality of the circumstances. Id. at 675. 

¶ 19 In this case, Sergeant O’Conner received a telephone call from DEA Agent Leach who 

stated that that he had received information from an unidentified confidential informant that 

Valerie Santos would be transporting narcotics to Chicago from San Diego and that she would 

be staying at the Whitehall Hotel. No date was given for the transportation or when Santos 

would be at the hotel. On that same date, DEA agents and a Chicago police officer acting on 

that information went to the Whitehall Hotel and conducted surveillance. They ascertained that 

a Ms. Santos was registered as a guest at the hotel. Valarie Santos was seen entering the hotel 

carrying a black attaché bag and going to her room. Approximately two hours later, Armas and 

the defendant were seen entering Santos’s room and exiting several minutes later with the 

defendant carrying the black attaché bag. Thereafter, the defendant and Armas were observed 

getting into a Cadillac Escalade into which the defendant had placed the attaché bag. 

¶ 20 The information relayed to Sergeant O’Conner standing alone did not demonstrate the 

basis of the confidential informant’s knowledge or the veracity of the information. Therefore, 

without more, the information relayed by Agent Leach was insufficient to provide the 

reasonable suspicion necessary to support a Terry type stop of the vehicle in which the 

defendant was riding. The fourth amendment requires more than some minimal level of 

objective justification for making a Terry stop. Immigration & Naturalization Service v. 

Delgado, 466 U.S. 210, 217 (1984). However, independent corroboration of significant 

aspects of the informant’s predictions can impart a degree of reliability on the informant’s 
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other allegations sufficient to support an investigative stop. Alabama v. White, 496 U.S. 325, 

330-31 (1990). Even corroboration of innocent details can be sufficient to establish reasonable 

suspicion of criminal activity. See Illinois v. Gates, 462 U.S. 213, 243-46 (1983); Draper v. 

United States, 358 U.S. 307, 309-13 (1959). 

¶ 21 In addition to reporting that Valerie Santos would be transporting narcotics from San 

Diego to Chicago, the confidential informant predicted that Valerie Santos would be staying at 

the Whitehall Hotel. In possession of a picture of Valarie Santos, which had been supplied by 

the DEA’s California office, DEA agents and a Chicago police officer went to the Whitehall 

Hotel, verified that a Ms. Santos was registered as a guest, and observed her enter the hotel and 

go to her room carrying a black attaché bag. Two hours after Santos was observed entering her 

room, the defendant and Armas were seen going into Santos’s room and exiting several 

minutes later with the defendant carrying a black attaché bag like the one that Santos had when 

she entered the hotel. Thereafter, the defendant was observed placing the attaché bag in the 

Cadillac Escalade. 

¶ 22 As was the case in Alabama v. White, the confidential informant in this case predicted 

future actions of a third party. Only someone familiar with Santos’s affairs could have

predicted that she would be in Chicago and staying at the Whitehall Hotel; information which 

the police corroborated. In addition to the corroboration of Santos’s predicted activity, the 

officers observed the defendant exiting Santos’s hotel room after a very brief stay carrying a 

black attaché bag like the one Santos entered the hotel with. Under a totality of the 

circumstances analysis, we believe that the facts of this case support the trial court’s finding 

that the officers had a reasonable articulable suspicion that the defendant was involved in 

criminal narcotics activity, justifying an investigative stop of the vehicle in which the 

defendant was riding. 

¶ 23 In Waddell, 190 Ill. App. 3d at 927, the court held that handcuffing the defendant in that 

case following a traffic stop did not convert a lawful Terry stop into an arrest as “there is 

nothing unreasonable about police officers being apprehensive concerning the risks inherent in 

interdicting drug traffic.” We find no reason to deviate from that rationale. We believe, 

therefore, that the trial court erred in finding that the defendant was arrested prior to the dog’s 

narcotics alert based solely upon the fact that he was handcuffed and placed in a police car 

upon exiting the Cadillac. 

¶ 24 Having determined that the initial stop of the vehicle in which the defendant was riding was 

justified both by reason of the traffic violation which the police observed and the reasonable 

suspicion which the officers had that the occupants were engaged in criminal narcotics activity 

and having found that the defendant was not under arrest solely by reason of having been 

handcuffed and placed in a police car, we must next address the question of whether the 

resulting detention of the defendant prior to the discovery of the methamphetamine was 

reasonable in both scope and duration. 

¶ 25 The United States Supreme Court has held that an otherwise lawful seizure of an individual 

during a traffic stop becomes an unlawful detention if it is prolonged beyond the time 

reasonably required to complete the purpose of the seizure. Illinois v. Caballes, 543 U.S. 405, 

407 (2005). Relying upon the holding in Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 

1609 (2015), the defendant argues that his roadside detention following the traffic stop of the 

vehicle in which he was riding was unreasonably prolonged in order to conduct the dog sniff 

and, as such, the search of the attaché bag and the seizure of the contents thereof violated the 
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constitutional proscription against unreasonable searches and seizures. We believe that the 

defendant’s reliance upon the holding in Rodriguez is misplaced. 

¶ 26 The question resolved in Rodriguez was “whether police routinely may extend an 

otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog 

sniff.” (Emphasis added.) Id. at ___, 135 S. Ct. at 1614. And, although the Supreme Court held 

that a “traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required 

to complete th[e] mission’ of issuing a warning ticket” (id. at ___, 135 S. Ct. at 1614-15 

(quoting Caballes, 543 U.S. at 407)), the Supreme Court declined to address the question of 

whether the police had reasonable suspicion of criminal activity which justified the detention 

of the defendant after the tasks attendant to the traffic stop had been completed (id. at ___, 135 

S. Ct. at 1616-17). 

¶ 27 In this case, Agent Glynn arrived on the scene about five minutes after officers Perez and 

Sanchez had stopped the vehicle in which the defendant was riding. The uniformed officers 

obtained Armas’s driver’s license and insurance card and returned to their vehicle. Thereafter, 

Officer Caballero requested that Agent Glynn have the dog perform a sniff investigation of the 

Cadillac. Without more, a strong argument could be made that the defendant’s detention was 

prolonged beyond the time necessary for officers Sanchez and Perez to complete their 

traffic-related tasks, rendering his continued detention an unreasonable seizure. This is 

especially true in light of the fact that no traffic citation or warning was issued to Armas. 

However, the officers in this case also had a reasonable suspicion that the defendant was 

engaged in criminal narcotics activity. In addition, Armas, the owner of the Cadillac Escalade 

consented to a search of the vehicle. Under these circumstances, we do not believe that the 

defendant’s continued detention for the five minutes that it took for Agent Glynn to arrive on 

the scene with the dog and the time it took to complete the dog sniff exceeded the bounds of 

reasonableness to the point of becoming unlawful. 

¶ 28 The defendant also argues that the trial court’s suppression of the evidence seized from the 

attaché bag should be affirmed because it is the product of an illegal search. The defendant 

contends that he had a legitimate expectation of privacy in the contents of the attaché bag 

which did not evaporate when he became a passenger in the vehicle in which it was found. He 

asserts that the police knew that he had been in possession of the attaché bag and that he never 

gave consent to it being searched. For the reasons which follow, we find no merit is the 

argument that the search of the attaché bag violated the defendant’s constitutional protection 

from unreasonable searches. 

¶ 29 As noted earlier, both the United States Constitution and the Illinois Constitution of 1970 

protect individuals from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. 

Const. 1970, art. I, § 6. However, as the defendant has not argued that our state constitution 

provides broader protection than the fourth amendment to the United States Constitution, we 

will confine our analysis to fourth amendment jurisprudence. See Sutherland, 223 Ill. 2d at 

229. 

¶ 30 We begin our analysis with the search of the vehicle in which the attaché bag was located. 

An individual may consent to a search of her property conducted without a warrant (People v. 

Phillips, 264 Ill. App. 3d 213, 217 (1994)), and fourth amendment guarantees are not 

implicated when police conduct a search pursuant to a voluntary consent (Ohio v. Robinette,

519 U.S. 33, 40 (1996); People v. Cardenas, 237 Ill. App. 3d 584, 587 (1992)). In this case, it 

was the defendant’s testimony that the Cadillac in which he was riding belonged to Armas, and 
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the testimony at the evidentiary hearing supports the trial court’s finding that the police 

obtained valid consent from Armas to search the vehicle. The defendant has not argued before 

this court that he had any legitimate expectation of privacy in the Cadillac itself; nor could he. 

He did not own the vehicle and there is no evidence in the record before us that he had any 

possessory interest in the vehicle, had previously used the vehicle, or that he had a right to 

control others use of the vehicle. Consequently, he could not challenge the search of either the 

exterior or interior of the Cadillac. 

¶ 31 Pursuant to the consent received from Armas, Agent Glynn had the dog sniff both the 

outside and inside of the Cadillac. Upon sniffing the attaché bag located within the vehicle, the 

dog alerted to the presence of narcotics. 

¶ 32 Having obtained Armas’s consent to search the vehicle, the dog sniff itself was not a search 

subject to the fourth amendment unless the sniff itself infringed upon the defendant’s 

constitutionally protected legitimate interest in privacy. Caballes, 543 U.S. at 408-09. 

However, the possession of narcotics cannot be deemed “legitimate,” and as a consequence, 

the dog sniff in this case which only revealed the presence of narcotics did not compromise any 

legitimate privacy interest possessed by the defendant. Id. Once the dog alerted the police to 

the presence of narcotics in the attaché bag, they had probable cause to search the bag, which 

revealed the methamphetamine located therein. United States v. Carrazco, 91 F.3d 65, 67 (8th 

Cir. 1996). 

¶ 33 Based upon the foregoing analysis, we find that the vehicle in which the defendant was 

riding was lawfully stopped, he was lawfully detained, and the search of the attaché bag in 

which the methamphetamine was found was conducted after the police had probable cause to 

believe that narcotics were located therein. We conclude, therefore, that the trial court erred in 

granting the defendant’s motion to quash arrest and suppress evidence. 

¶ 34 Although we have concluded that the trial court erred in finding the defendant was arrested 

without probable cause when he was handcuffed and placed in a police car before the dog 

alerted to the presence of narcotics in the attaché bag, we would still reverse the trial court’s 

order even if the defendant had been unlawfully arrested. 

¶ 35 When the arrest of an individual is tainted by illegality, evidence obtained as a result of the 

illegal arrest may be subject to the exclusionary rule and suppressed. People v. Johnson, 237 

Ill. 2d 81, 92 (2010). However, a determination that an individual has been unlawfully arrested 

does not necessarily resolve the issue of whether subsequently obtained evidence is 

admissible. Id. The relevant inquiry is whether the evidence was derived from the illegal arrest 

or whether it was obtained by means sufficiently distinguishable from the taint of the illegal 

arrest. Id.; People v. Lovejoy, 235 Ill. 2d 97, 130 (2009). 

¶ 36 In this case, the Cadillac in which the defendant was riding was lawfully stopped. After the 

owner of the vehicle, Armas, gave consent for a search of the vehicle, a narcotics-detection dog 

sniffed the exterior and interior of the Cadillac and alerted to the presence of narcotics in the 

attaché bag, giving the police probable cause to search the bag. It is clear that the 

methamphetamine found in the attaché bag was not obtained as a result of the defendant’s 

alleged arrest and should not have been suppressed. See Johnson, 237 Ill. 2d at 92-93.

¶ 37 For the reasons stated, we reverse the trial court’s order granting the defendant’s motion to 

quash arrest and suppress evidence and remand the matter for further proceedings consistent 

with the opinions expressed herein. 
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¶ 38 Reversed and remanded.