Docket No. 97439.



### IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JOHN A. DRIGGERS, Appellant.

Opinion filed July 5, 2006.

CHIEF JUSTICE THOMAS deliv ered the judgment of the court, with opinion. Justices Fitzgerald and Garman concurred in the judgment and opinion. Justice Freeman specially conc urred, with opinion, joined by Justices McMorrow and Kilbride. Justice Karmeier took no part in the decision.

OPINION

Defendant, John A. Driggers, was charged by information with possession of drug parapher nalia (720 ILCS 600/3.5 (West 2000)) and unlawful possession of more than 2.5 but less than 10 grams of cannabis (720 ILCS 550/4(b) (West 2000)). The charges against defendant arose from a traffic stop where a drug-sniffing dog alerted to defendant = s automobile. Defendant filed a motion to suppre ss, claiming that the search and seizure were conducted illegally because the officer had no reasonable suspicion to justify the canine sniff and defendant did not consent to the s earch of his vehicle or his2 person. Following a hearing, the circuit court of Champaign County denied defendant = s motion to suppress. Defendant thereafter agreed to a stipulated bench trial. The trial court found defendant not guilt y on the charge of unlawful possession of cannabis, but found defendant guilty of possession of drug paraphernalia. The trial court ordered defendant to pay a $750 fine and costs, and sentenced defendant to 180 days = incarceration. The appellate court affirmed defendant = s conviction and sentence. No. 4

B 01

B 1118 (unpublished order under Supreme Court Rule 23). This court then allowed defendant = s petition for leave to appeal. 177 Ill. 2d R. 315. For the reasons set forth, we affirm the judgment of the appellate court.

BACKGROUND At the hearing on defendant = s motion to suppress, Officer James Sullivan testified that he is a K-9 officer with the Village of Rantoul. On July 7, 2000, Su llivan was on routine K-9 patrol, drug interdiction, when he observed a vehicle with a cracked windshield. Sullivan decided to run the plates of the vehicle and learned that the vehicle = s registration had expired. Sullivan followed the vehicle into a gas station and activated his lights. Sullivan called in the traffi c stop and then approached the vehicle. Sullivan asked the dr iver, defendant, for his driver = s license and proof of insuranc e. Sullivan advised defendant of the reason for the stop. Def endant gave Sullivan his name and birth date, stating t hat although he had a driver = s license, he did not have it with him. Su llivan also asked defendant and his passenger, defendant = s stepson, if they had any prior contacts with the law. Defendant told Su llivan that he had been arrested in the past and that there we re some drug charges, although he was not currently on probation. Defendant = s stepson stated that he had been arrested once for battery. Sullivan then went back to his squad car and ran a warrant check through the police dispatcher and ran a crim inal history on his laptop computer. Sullivan learned that defendant had 13 prior arrests, including several arrests for drugs, and that defendant = s3 stepson had three prior arrests. Sullivan testified that this information heightened his interest A in the drug interdiction part of it, @ so he decided to walk his K- 9 partner around the vehicle. Sullivan called for backup, whic h arrived within approximately 45 seconds. Sullivan began writi ng defendant a warning ticket for the cracked windshield and expired license plates while he was waiting for the backup office r to arrive, but the ticket was not completed until after def endant had been arrested. Once the backup officer arrived, Sullivan walked the dog around defendant = s vehicle. The dog alerted to the driver = s door seams and the front wheel we ll area on the driver = s side. Sullivan told defendant and his stepson that t he dog had alerted to their vehicle. Defendant responded that he had no idea why the dog would alert to his vehicl e. Sullivan then asked defendant whether he would have a problem if Sullivan searched him and his vehicle. Defendant told Sullivan to A go ahead @ and search. Sullivan searched defendant first, then searched the vehicle. When Sullivan searched defendant, he found a gold A onehitter @ pipe in defendant = s left front pants pocket, with what appeared to be cannabis residue on it, and a small film canister containing what appeared to be cannabis. Sullivan showed the items to the backup officer, t hen advised defendant that he was under arrest and placed him in handcuffs. Sullivan testified that the entire stop took less than five minutes.

Defendant testified at the hear ing on his motion to suppress that his impression was that he did not have an option concerning the search because Sullivan was going to search anyway. On cross-examinati on, defendant stat ed that when Sullivan asked if he could sear ch defendant and his vehicle, defendant said, A Go ahead. @ The trial court denied the motion to suppress. The trial court stated that the search and se izure in this case were reasonable. The trial court not ed that the dog was used before the traffic stop had been concluded, and defendant = s consent to the search was lawfully giv en. There was no indication that defendant = s will was overborne. This was not a case where an unreasonable amount of time had elapsed, and Sullivan had used reasonable judgment under all the circumstances.4 Defendant waived his right to a jury trial, and the parties proceeded with a stipulated bench tria l. As noted, the trial court found defendant not guilty of unlaw ful possession of more than 2.5 but less than 10 grams of cannabis, but found defendant guilty of possession of drug paraphernalia. Defendant appealed the trial court = s denial of his motion to suppress, arguing that Sulliv an did not have a reasonable suspicion sufficient to justify a canine sniff of his car. The appellate court, with one justice di ssenting, affirmed the trial

court = s ruling. No. 4

B 01

B 1118 (unpublished order under Supreme Court Rule 23). The appellate court held that the canine sniff of defendant = s vehicle was permissible under the circumstances of this case and that the canine sniff did not impermissibly prolong the detention or change the fundamental nature of the stop. The appellate court also found that defendant voluntarily consented to the search of his person. Justice Appleton, in dissent, stated that the trial court should have granted defendant = s motion to suppress because the seizure of defendant was unr easonable and in violation of the fourth amendment. No. 4

B 01

B 1118 (Appleton, J., dissenting). The dissent noted that the canine sniff was unrelated to the initial purpose of the stop, and there was no reasonable, articulable suspici on to justify the canine sniff. Citing this court = s decision in People v. Cox , 202 Ill. 2d 462 (2002), the dissent stated that a police officer must have reasonable suspicion to justify a canine sniff of a vehicle stopped for a traffic violation. The dissent disagreed with the majority = s assertion that the exist ence of a prior criminal conviction for drugs was suffici ent to establish the reasonable suspicion necessary to expand the scope of the interaction between defendant and Sullivan.

This court allowed defendant = s petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS Where a motion to suppre ss involves credibility assessments or factual determinations, this court will reverse a trial court = s ruling only if it is manifestly erroneous. People v.5 Love , 199 Ill. 2d 269, 274 ( 2002). The trial court = s ultimate ruling granting or denying a motion to suppress is reviewed de

novo

. Love , 199 Ill. 2d at 274. Becaus e this appeal concerns the trial court = s ultimate ruling denying defendant = s motion to suppress, our review is de novo

. At the outset, we note that def endant confines his argument on appeal to the fourth amendm ent to the United States Constitution (U.S. Const., amend. IV). Defendant does not argue that the search and seizure provision of article I, section 6, of the Illinois Constitu tion (Ill. Const. 1970, art. I, ' 6) provides broader protection than the fourth amendment. Defendant also does not argue t hat the search and seizure provision of the Illinois Consti tution should not be interpreted and applied in lockstep with the Un ited States Supreme Court = s interpretation and application of the search and seizure clause of the fourth amendment. C onsequently, we confine our analysis to defendant = s fourth amendment claim. Before this court, defendant argues that because Officer Sullivan lacked reasonable suspicion to initiate the canine sniff of defendant = s vehicle, the evidence seized as a result of the canine = s alert must be suppressed. Defendant claims that the only basis for conducting the canine sniff was defendant = s criminal history, as there were no suspicious activities or odors that would justify the search . Defendant contends that under the fourth amendment, the determi nation of whether a search is reasonable involves a two- step analysis: (1) whether the officer = s action was justified at its inception; and (2) whether the search was reasonably related in scope to the circumstances which justified the interference in the first place. Defendant concedes that Sullivan = s initial actions in this case were justified, but argues that prior arrests alone, without contemporaneous, corroborating behavior, do not create a reasonable suspicion sufficient to enlarge the scope of the original detention to include a c anine sniff of a vehicle during a routine traffic stop. In support of his argum ent on appeal, defendant argues that this case is analogous to People v. Caballes , 207 Ill. 2d 504 (2003), where this court held that the trial court should have granted defendant = s motion to suppress evidence6 obtained after a police dog al erted to the defendant = s vehicle during a routine traffic stop. Def endant is correct that the facts of this case are analogous to the facts set forth in Caballes . In that case, the defendant was st opped for speeding by Illinois State Trooper Gillette. Caballes , 207 Ill. 2d at 506. When Gillette radioed the police dispatc her to report the stop, Illinois State Trooper Graham over heard the transmission and decided to head to the scene with his narcotics-detection dog. Caballes , 207 Ill. 2d at 506. While Gillette was writing out a warning ticket for defendant, Gr aham walked his dog around respondent = s car. The dog alerted to the trunk of defendant = s car. Based upon the alert, the o fficers searched the trunk and found marijuana. The office rs then arrested defendant. Caballes , 207 Ill. 2d at 507. The entir e incident took less than 10 minutes. This court initially held that the trial court should have granted defendant = s motion to suppress because the State had not offered sufficient justificat ion for implementing the canine sniff. Caballes , 207 Ill. 2d at 509. The officers had not detected the odor of marijuana in the ca r, nor had they observed any other evidence suggesting the presence of illegal drugs. Caballes , 207 Ill. 2d at 509. Th is court stated that A the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation because there were no specific and articulable facts to suppor t the use of a canine sniff. @ Caballes , 207 Ill. 2d at 509. The United States Supreme C ourt, however, vacated this

court = s decision in Caballes . See Illinois v. Caballes , 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S. Ct. 834, 838 (2005). The Supreme Court noted that this court had held that the use of the dog converted the encount er between the defendant and the officer from a lawful traffi c stop into a drug investigation, and that this shift in purpose was unlawful because it was not supported by any reasonable su spicion that the defendant possessed narcotics. Caballes , 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. The Supreme Court disagreed, stating that, A conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reas onable manner, unless the dog7 sniff itself infringed respondent = s constitutionally protected interest in privacy. @ Caballes , 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. If o fficial conduct does not

A > compromise any legitimate interest in privacy, = @ it is not a search subject to the fourth amendment. Caballes , 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837, quoting United States v. Jacobsen , 466 U.S. 109, 123, 80 L. Ed. 2d 85, 100, 104 S. Ct. 1652, 1661 (1984). Because any interest in possessing contraband cannot be deemed legitimate, governmental conduct that onl y reveals the possession of contraband does not compromise a legitimate privacy interest. Caballes , 543 U.S. at 408, 160 L. Ed . 2d at 847, 125 S. Ct. at 837. The Supreme Court t herefore held that A the use of a welltrained narcotics-detection dog

B one that > does not expose noncontraband items that otherwise would remain hidden from public view, = [citation]

B during a lawful traffic stop, generally does not implicate legitimate privacy interests. @ Caballes , 543 U.S. at 409, 160 L. Ed . 2d at 847, 125 S. Ct. at 838. The Court noted that the dog sniff at iss ue was performed on the exterior of the respondent = s car while the respondent was lawfully seized for a traffic violation. Caballes , 543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838. T herefore, any intrusion of the respondent = s privacy expectations did not rise to the level of a constitutionally cognizable infringement. Caballes , 543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838. The Court concluded:

A A dog sniff conducted during a concededly lawful traffic stop that reveals no informati on other than the location of a substance that no i ndividual has any right to possess does not violate the Fourth Amendment. @ Caballes , 543 U.S. at 410, 160 L. Ed. 2d at 848, 125 S. Ct. at 838. In this case, as in Caballes , there is no dispute that the duration of the stop, which wa s less than five minutes, was entirely justified by the traffic offense and the or dinary inquiries incident to such a stop. The canine sniff in this case was performed on the ex terior of defendant = s car while defendant was lawfully seized for a traffic vi olation. Like the canine sniff at8 issue in Caballes , the canine sniff in this case was conducted during a concededly lawful traffic stop and revealed no information other than the locati on of materials that defendant had no right to possess. The cani ne sniff, therefore, did not violate the fourth amendment. For that reason, the trial court properly denied defendant = s motion to suppress. For the foregoing reasons, t he judgment of the appellate court, affirming the trial court = s order denying defendant = s motion to suppress, is affirmed.

Affirmed.

JUSTICE KARMEIER took no part in the consideration or decision of this case.

JUSTICE FREEMAN, specially concurring: Although defendant, in his brief, includes a citation to the search and seizure provisions of the Illinois Constitution, he does not argue in any way that th is provision affords him more protection than its f ederal constitutional counterpart, nor does he maintain that the state pr ovision should be interpreted differently from the federal provision. Had he done so, those arguments would have been analyzed under this court = s recent decision in People v. Caballes , No. 91547 (May 18, 2006). Because defendant did not raise t hese state issues, this appeal raises solely a question of f ederal constitutional law, the resolution of which is controlled by the United States Supreme Court = s decision in Illinois v. Caballes , 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005). For t hat reason alone, I concur in the judgment of the court.

JUSTICES McMORROW and KILBRIDE join in this special

concurrence.