NO. 4-02-0272

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Champaign County

DUPREE STAPLE,						)	No. 01CM1019

		Defendant-Appellant.		)

								)	Honorable

								)	Michael Q. Jones,

								)	Judge Presiding.

		JUSTICE MYERSCOUGH delivered the opinion of the court:

		On February 1, 2002, the trial court found defendant,

Dupree Staples, guilty of possession of more than 2.5 but less

than 10 grams of cannabis (720 ILCS 550/4(b) (West 2000)) and

sentenced defendant to 21 days in jail plus costs and fees. 

Defendant filed a posttrial motion, which the trial court denied. 

Defendant appeals, arguing that (1) the trial court erred in

denying his motion to suppress, (2) he did not knowingly waive in

open court his right to a jury trial, (3) he is entitled to a $15

credit against his fines, and (4) the trial court erred in

ordering him to pay a $15 "anticrime" fine.  We reverse.

I. BACKGROUND

		In August 2001, the State charged defendant by informa

tion with unlawful possession of cannabis (720 ILCS 550/4(b)

(West 2000)), alleging he knowingly and unlawfully possessed more

than 2.5 grams, but not more than 10 grams, of a substance

containing cannabis.  On November 26, 2001, defendant filed a

motion to suppress evidence, alleging that at the time of the detention, he was not observed in the commission of a crime, nor

did the police have probable cause to believe that he had commit

ted a crime.  Defendant also alleged that he was detained and

searched without exigent circumstances, without a warrant, and

without consent, and, therefore, such detention and search were

illegal.

		On November 29, 2001, the trial court held a hearing on

defendant's motion.  Because the parties are familiar with the

evidence presented, we will summarize it only to the extent

necessary for a complete understanding of our disposition.  In

August 2001, defendant's brother was driving his automobile. 

Defendant was the front-seat passenger, and another person was

the backseat passenger.  Officer Robert Benschneider stopped the

vehicle after observing no visible license plates or registra

tion.  Benschneider asked everyone in the car for their identifi

cation, which they produced.  Benschneider returned to his squad

car to run a criminal check on their driver's licenses. 

Benschneider discovered that the driver had a suspended driver's

license and had an outstanding warrant for his arrest. 

Benschneider radioed for another officer to assist with the stop. 

When the officer arrived, the driver was arrested, handcuffed,

and placed in the squad car.  Benschneider then reapproached the

car and told defendant that "his brother was under arrest.  And

we would be searching the car and everyone in it."  Prior to

searching defendant, Benschneider asked defendant if he had any

weapons or contraband on his person.  Defendant stated that he had a bottle of Crown Royal in his pocket.  Benschneider removed

the bottle from defendant's pant's pocket.  Benschneider then

conducted a pat down of defendant's clothing and a frisk of his

crotch area where he found a "hard lump[-]like [sic] in the seat of his pants.  ***  It felt like a round object.  I could feel

plastic around it."  Benschneider testified that the purpose of

the pat down was to make sure that no one had any weapons in the

car before the police searched the car.

		Upon questioning by the trial court, Benschneider

testified that his standard "speech is to tell everyone since

someone was arrested[,] out of the car[,] we're going to search

the car and everyone in it."  The following colloquy transpired:

			"Q. [THE COURT:] The question I've got

is, tell me why you think you've got author

ity to search everybody else just because you

know the driver's suspended and has a DOC

warrant?

			A. [BENSCHNEIDERenschneider:] Well, we have a 

search incident to arrest in the vehicle--

			Q. Uh-huh?

			A. --so we're going to secure the vehi

cle.

			Q. How about the passengers, though?  I

know you can search [the] arrestee incident

to the arrest and his vehicle.  Do you think

that you can also search any passengers?

			A. Yes.

			Q. Okay.  Tell me why.

			A. They're in the car when someone was

taken out of the car under arrest."

The court made the following remarks:

		"The officer discovered that the driver was

suspended.  Made the occupant of the car wait

for seven or eight minutes while he went back

to his squad car, during which time I'm sure

he discovered the suspension of the driver

and the, the department of corrections war

rant, all of which is permissible seizure

because the--I have no evidence that the

driver hadn't committed a violation in the

first place.  Came back.   Arrested the

driver. *** The officer ordered the occupants

out of the car, which he can do, told the

occupants he was preparing to search them. 

***  [The officer] discovered the defendant

had a bottle of booze on him *** before he

commenced the frisk.

			He then frisked the defendant, found,

plucked out the bottle of Crown Royal from

his pocket.  I did not hear testimony whether

it was sealed or unsealed.  Then ran his

hands up and down defendant's inner thigh.  And in the crotch area of the defendant found

something that ultimately he learned was

cannabis ***.

			Under these circumstances an officer, I

believe can order everyone out of the car. 

Can he frisk them?  I would have to be shown

some authority on that because maybe,

[o]fficer, you've been to a seminar and have

learned something that I don't know.  

Whether, whether you can do that, I don't

know of authority that let's you do that. 

But you did ask him if he had anything and he

admitted it.  And I think after that, we have

a different situation.  That is you developed

probable cause that he had committed an of

fense.  And I believe at that time you had

the right to conduct a light outer pat down."

The court found that defendant's admission that he had Crown

Royal on him gave the officer probable cause that defendant may

have committed an offense of illegal transportation of alcohol,

i.e., if the seal were broken, which gave the officer the right to search defendant.  The court denied defendant's motion to

suppress.  

		In January 2002, defense counsel informed the court

that defendant was requesting a stipulated bench trial.  In

February 2002, the cause was called for a stipulated bench trial.  The trial court found defendant guilty of possessing more than

2.5 but less than 10 grams of cannabis (720 ILCS 550/4(b) (West

2000)).  Pursuant to the parties' agreement, the court sentenced

defendant to 21 days in jail and a $200 mandatory drug assess

ment.  In its sentencing order, the court also imposed a $15

anticrime fee, but did not award defendant any sentence credit

for time served.  Defendant filed a posttrial motion, which the

trial court denied.

		This appeal followed.

II. ANALYSIS

		Defendant argues that the trial court erred in denying

his motion to suppress because his detention and subsequent

search violated his fourth amendment rights.  U.S. Const., amend.

IV.  Further, defendant contends that his possession of liquor

did not provide probable cause for a search of weapons, and the

police officer's subsequent rubbing manipulation of defendant's

crotch area was not based on the reasonable belief that defendant

was armed and dangerous, exceeded the scope of a weapons frisk,

and was without probable cause.  Therefore, the marijuana later

discovered was tainted.  The State concedes the error, and we

agree.

A. Standard of Review and Burden of Proof

		The appeal of a ruling on a motion to suppress presents

mixed questions of fact and law.  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 ultimate decision of whether evidence should be suppressed.  People v. Crane, 195 Ill. 2d 42, 51, 743 N.E.2d 555, 562 (2001).

		On a motion to suppress, the defendant has the burden

of proving the search and seizure were unlawful.  725 ILCS 5/114-

12 (West 2000).  "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 intrusion."  (Empha

sis in original.)  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.  The Supreme Court of Illinois has interpreted

the search and seizure clause of section 6six in a manner consistent

with the United States Supreme Court's fourth amendment jurispru

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

		When a police officer observes a driver commit a traffic violation, the officer is justified in briefly detaining

the driver to investigate the violation.  People v. Sorenson, 196 Ill. 2d 425, 432, 752 N.E.2d 1078, 1084 (2001).  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).  "An automobile stop is thus

subject to the constitutional imperative that it not be 'unrea

sonable' under the circumstances.  As a general matter, the

decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation oc

curred."  Whren, 517 U.S. at 810, 135 L. Ed. 2d at 95, 116 S. C. at 1772.

		Recently, the Supreme Court of Illinois 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.  Gonzalez, 204 Ill. 2d at 3226[, 789 N.E.2d at 265].  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 present case, defendant does not challenge the

propriety of the initial stop.  Benschneider stopped the vehicle

in which defendant was a passenger in the front seat upon observ

ing no visible license plates or registration on the vehicle, a

violation of section 3-413(b) of the Illinois Vehicle Code.  (625

ILCS 5/3-413(b) (West 2000)).  See Sorenson, 196 Ill. 2d at 433, 752 N.E.2d at 1084 (stop of vehicle justified based on officer's

observation of traffic violation).  Therefore, Benschneider had

probable cause to initiate a valid traffic stop.

C. Defendant's Arrest

		Following a lawful traffic stop, a police officer may,

as a matter of course, order the driver and any passengers out of

the vehicle pending the completion of the stop without violating

the protections of the fourth amendment.  Sorenson, 196 Ill. 2d at 433, 752 N.E.2d at 1084.  The fact that an officer has a

reason to stop a person, however, does not automatically justify

the further intrusion of a search for weapons.  Sorenson, 196 Ill. 2d at 433, 752 N.E.2d at 1084; People v. Flowers, 179 Ill. 2d 257, 263, 688 N.E.2d 626, 629 (1997).  The officer may subject

the person to a limited search for weapons, commonly referred to as a "frisk," only if the officer reasonably believes that the

person is armed and dangerous.  Sorenson, 196 Ill. 2d at 433, 752 N.E.2d at 1084; Flowers, 179 Ill. 2d at 263, 688 N.E.2d at 629.  

		In the present case, Benschneider testified that he

told defendant "that his brother was under arrest.  And we would

be searching the car and everyone in it."  We acknowledge that

Benschneider could lawfully direct defendant to exit the vehicle

so that Benschneider could take charge of the car and have it

towed.  At the point Benschneider arrested the driver, the

traffic stop was over.  Therefore, Benschneider's questions to

and search of defendant after he exited the vehicle were improper

unless Benschneider's question and search were related to the

purpose of the stop or supported by a reasonable, articulable

suspicion of criminal conduct.  As a result, the existence of

reasonable, articulable suspicion is evaluated at that point in

time.  People v. Cox, 202 Ill. 2d 462, 466-67, 782 N.E.2d 275, 278-79 (2002).

		At that point, Benschneider knew defendant was a

passenger in the front seat of the vehicle.  Benschneider never

testified that he believed defendant was armed and dangerous.  In

fact, Benschneider testified that his standard speech is to "tell

everyone since someone was arrested[,] out of the car[,] we're

going to search the car and everyone in it."  Upon questioning by

the court, Benschneider testified he thinks he can search any

passengers, as well as search the arrestee incident to the

arrest.  We find that Benschneider's questioning of defendant was not related to the stop and not supported by a reasonable,

articulable suspicion of criminal conduct.  We, therefore, must

consider whether the questioning prolonged defendant's detention

or changed the fundamental nature of the stop.

		We find Benschneider's question to defendant clearly

prolonged defendant's detention and did so beyond the completion

of the purpose of the stop and changed the nature of the stop. 

Moreover, it cannot be argued that the detention was consensual. 

Benschneider did not ask for permission to search defendant. 

Rather, Benschneider told defendant that he was going to search

the car and its occupants.  In view of all of the circumstances

here, defendant would not have believed that he was free to leave

and not be subject to a search.  Defendant was clearly seized

when he was searched.  Bunch, 207 Ill. 2d at 19, 796 N.E.2d at 1032.  

		The record does not demonstrate that defendant was

suspected of any wrongdoing.  Therefore, Benschneider's search of

defendant was unlawful, and the trial court should have sup

pressed any evidence that was discovered as a result.  Without

that evidence, the trial court would have been unable to find

defendant guilty of possession of cannabis.  Because of our

resolution of this issue, we need not consider defendant's

remaining arguments on appeal.

III. CONCLUSION

		For the foregoing reasons, we reverse the trial court's

order denying defendant's motion to suppress.  Because the State cannot prevail without the suppressed evidence, we reverse his

conviction and need not remand for further proceedings.  See

People v. Avant, 331 Ill. App. 3d 144, 154, 771 N.E.2d 420, 429 (2001); People v. Fondia, 317 Ill. App. 3d 966, 972-73, 740 N.E.2d 839, 844 (2000).

		Reversed.

		KNECHT, P.J., and APPLETON, J., concur.