NO. 4-02-0567

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Douglas County

TRAVIS L. POWELL,					)	No. 00CF34

    		Defendant-Appellant.		)

								)	Honorable

								)	Frank W. Lincoln,

								)	Judge Presiding.

		JUSTICE APPLETON delivered the opinion of the court:

		After a stipulated bench trial, the trial court found

defendant, Travis L. Powell, guilty of possession of marijuana

with intent to deliver (720 ILCS 550/5(f) (West 2000)) and

sentenced him to an agreed four-year prison term.  Defendant

appeals the trial court's denial of his motion to suppress,

arguing (1) the traffic offense of following too closely (625

ILCS 5/11-710(a) (West 2000)) is unconstitutionally vague and (2)

the police illegally detained him after the traffic stop was

complete.  We reverse.

I. BACKGROUND

		At the preliminary hearing on May 26, 2000, Sergeant

Tony Cessna of the Illinois State Police testified that on April

29, 2000, at about 8:35 a.m., while patrolling Interstate 57, he

pulled defendant over because he had seen him following a

semitrailer too closely.  Defendant gave Cessna a valid Missis

sippi driver's license and a rental car agreement for the vehi cle.  Cessna informed defendant of the offense, and defendant admitted he had followed the truck too closely.  While taking

defendant's information, Cessna smelled the odor of air freshener

coming from inside the car.  

		Cessna asked defendant to come into his squad car while

he wrote a warning ticket for following too closely.  As defen

dant sat with him in the squad car, Cessna ran a criminal history

and driver's license inquiry on defendant.  While waiting for the

results, Cessna asked defendant where he was traveling.   Defen

dant responded that he and his passenger were coming from Chicago

and traveling to Jackson and West Pointe, Mississippi.  Cessna

asked defendant if he had ever been arrested; defendant told him

he had been arrested for possession of cannabis.  When Cessna

received the inquiry results, they showed defendant had several

prior arrests for possession of a controlled substance as well as

possession of cannabis; there was an outstanding warrant for

defendant's arrest in Cook County, but it could not be executed

outside of that county; and defendant's Illinois license had been

revoked. 

		Cessna completed the warning ticket and handed it to

defendant.  He kept defendant's driver's license, however, and

told him he was going to talk to the passenger in his car while

defendant signed the warning ticket.  "I handed him the warning

and asked him to sign it and advised him I was going to talk to

his passenger while he was doing that."  Cessna then exited his

squad car and returned to defendant's vehicle, where he spoke to the passenger, Candace Martin, for two to three minutes.  Martin

told Cessna they were on their way to Maywood, Illinois, from

Chicago, to visit relatives.  Cessna returned to his squad car,

returned defendant's driver's license, and gave defendant a copy

of the warning ticket.  Cessna then told defendant that Martin

stated they were traveling to a destination different from the

one defendant had stated.  Defendant responded that Martin knew

where they were going and he could not explain her answer. 

Cessna asked defendant for permission to search his car, and

defendant consented.  After Cessna opened the trunk and began the

search, defendant asked him what would happen if defendant told

him he could not search the car.  Cessna told defendant he had

the right to refuse, and defendant responded that he was in a

hurry and "would like to get going."  Considering that comment a

withdrawal of consent to search, Cessna stopped searching.  At

that point, Cessna told defendant he was free to leave--but not

with the vehicle, or at least not yet, because he had sufficient

suspicion to detain it and call for a canine unit.  Master

Sergeant Jeffrey Gaither arrived on the sccenewith a dog.

		While waiting approximately 24 minutes for the canine

unit, Gaither spoke to Martin and saw what appeared to be canna

bis on the floor of defendant's car.  Gaither removed some of the

material, and it field-tested positive for cannabis.  Two or

three minutes later, the canine unit arrived, and the dog alerted

to the driver's door of defendant's car.  Cessna told defendant

he was going to complete his search of the car.  A search of the trunk revealed a shopping bag, inside of which was a grocery bag

containing seven clear zZiploczip-lock bags of green plant material.  The

police field-tested two of the bags, and both tested positive for

cannabis.  They arrested defendant for possession of cannabis

(720 ILCS 550/4(f) (West 2000)) and possession with intent to

deliver (720 ILCS 550/5(f) (West 2000)).  At the conclusion of

the testimony in the preliminary hearing, the court found proba

ble cause.

		In July 2001, defendant filed a motion to suppress his

statements and the physical evidence against him, arguing that

the offense of following too closely (625 ILCS 5/11-710(a) (West

2000)), for which the police had stopped him, was unconstitution

ally vague.  Defendant further argued that if even the offense

were constitutional, the search of his car and seizure of his

person were unreasonable because the traffic stop was complete

before Cessna discovered any reason for suspicion.  At the

hearing on the motion, Cessna's testimony was essentially the

same as his earlier testimony at the preliminary hearing.  He

testified that defendant was traveling 20 to 30 feet, or roughly

a car-and-a-half length, behind a semitrailer, a distance Cessna

considered too small for defendant to come to a stop if the

semitrailer stopped.  According to Cessna, defendant was travel

ing faster than the semitrailer and had to hit the brakes to slow

down.  Cessna again testified that during the stop, he smelled an

odor of air freshener coming from defendant's car and, in his

experience, air fresheners were often used to mask the odor of narcotics. 

		Because of the smell of air freshener, defendant's

prior criminal record, and defendant's and his passenger's

conflicting accounts of their destination and what they were

doing, Cessna believed some type of illegal activity was afoot. 

Therefore, he requested permission to search the vehicle, and

defendant consented.

		After finding the cannabis and arresting defendant,

Cessna read him his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)).  Defendant told

Cessna that Martin had nothing to do with the marijuana.  Defen

dant also claimed not to have seen the dog alert Gaither to the

presence of drugs in his car.  Cessna took defendant to the door

that the canine had pawed, and defendant tried to wipe out the

paw-marks with his foot.

		On cross-examination, Cessna stated that he had five

years' experience with a canine unit and had received "Valkyrie"

training (training for drug-interdiction patrol).  He could not

recall the particular smell of the air freshener and acknowledged

that air fresheners in cars are not illegal.  Cessna testified

that he went to talk to Martin, the passenger, because he sus

pected criminal activity.

		On January 3, 2001, the trial court denied defendant's

motion to suppress.  The State dismissed the count for possession

and on July 11, 2002, proceeded with a bench trial on the remain

ing count, with defendant's stipulation that the evidence in the preliminary hearing and in the hearing on his motion to suppress

was sufficient for a finding of guilt.  He expressly preserved

for appeal the issues he had raised in his motion to suppress. 

The trial court found defendant guilty of possession of cannabis

with intent to deliver (720 ILCS 550/5 (West 2000)) and sentenced

him to an agreed four-year prison term, assessing fines and court

costs accordingly.  Defendant filed a motion for a new trial,

which the trial court denied.  This appeal followed.

II. ANALYSIS

A. Constitutionality of the Offense of Following Too Closely

		Defendant argues that the traffic offense of following

too closely (625 ILCS 5/11-710(a) (West 2000)) is unconstitution

ally vague because it fails to provide adequate notice of the

prohibited conduct as meaningful guidance to authorities enforc

ing its provisions. 

		A person attacking a statute's constitutionality must

bring himself within the class as to whom the statute is uncon

stitutional by showing that he has been aggrieved by the statute. 

People v. Green, 45 Ill. App. 3d 506, 508, 359 N.E.2d 1110, 1111- 12 (1977).  Defendant admitted to Cessna he had been following

too closely.  Defendant himself could not have been aggrieved by

any alleged vagueness in the statutory prohibition of "following

too closely" because by admitting to following too closely, he

necessarily admitted the prohibition was clear and definite

enough for him (and, therefore, Cessna) to know he had violated

it under the circumstances.  Thus, defendant lacks standing to challenge the constitutionality of section 11-710(a).  See Green, 45 Ill. App. 3d at 508, 359 N.E.2d at 1112.  He has failed to

bring himself within the class as to whom the statute is alleg

edly unconstitutional.  See Green, 45 Ill. App. 3d at 508, 359 N.E.2d at 1111-12. 

B. Denial of Motion To Suppress

		Defendant next claims that the trial court erred in

denying his motion to suppress.  We agree.

		On a motion to suppress evidence, the trial court first

weighs the evidence and determines the facts surrounding the

complained-of conduct, after which it decides whether, as a

matter of law, these facts constitute an unconstitutional sei

zure.  People v. Cox, 202 Ill. 2d 462, 465-66, 782 N.E.2d 275, 278 (2002).  A reviewing court gives great deference to the trial

court's factual findings but reviews de novo the trial court's ultimate decision to grant or deny the motion to suppress.  Cox, 202 Ill. 2d at 466, 782 N.E.2d at 278.  

		Recently, the Supreme Court of Illinois held, in

accordance with Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), that a police officer may conduct a brief,

investigative stop of individuals, absent probable cause to

arrest, provided the officer has a reasonable, articulable

suspicion of criminal activity.  People v. Gonzalez, 204 Ill. 2d 220, 227, 789 N.E.2d 260, 265 (2003), citing Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.  A court objec

tively considers whether the detention of the defendant was appropriate based on the facts available to the police officer,

and the police officer must be able to articulate specific facts

to justify the intrusion.  Cox, 202 Ill. 2d at 467, 782 N.E.2d at 278.  Further, a police officer's action must be reasonably

related in scope to the circumstances that justified the intru

sion.  Cox, 202 Ill. 2d at 467, 782 N.E.2d at 279.  

		The Cox court further stated that after observing a traffic violation and initiating a stop, the officer is justified

in detaining the driver to investigate the violation as well as

perform some initial inquiries, check the driver's license, and

conduct a speedy warrant check.  Cox, 202 Ill. 2d at 468, 782 N.E.2d at 279.  Once these tasks have been completed, the traffic

stop should go no further, unless "further suspicion is aroused

in the officer following these inquiries."  Cox, 202 Ill. 2d at 468, 782 N.E.2d at 279. 

		In the instant case, Cessna observed defendant commit a

traffic violation and initiated a traffic stop.  The State argues

that while investigating the violation and making permissible

inquiries, Cessna's suspicions were further aroused to the extent; he became

aware of of having specific and articulable facts, which, taken together

with rational inferences therefrom, warranted defendant's contin

ued detention and an investigation into matters unrelated to the

traffic stop.  Those articulable facts were as follows.  Cessna

testified that in his experience, air freshener was commonly used

to mask the odor of narcotics and he had arrested people in

rental vehicles for narcotics violations where air fresheners were present in an attempt to mask the odor.  See United States v. Patterson, 65 F.3d 68, 71 (7th Cir. 1995) (probable cause existed to search vehicle, partly based upon odor of air fresh

ener).  In addition, Cessna suspected criminal activity because

of defendant's criminal drug history (see United States v. Finke, 85 F.3d 1275, 1282 (7th Cir. 1996)), the outstanding warrant for

his arrest in Cook County, the revocation of his Illinois

driver's license, and, more important, the inconsistent stories

from defendant and Martin regarding their destination (see

Patterson, 65 F.3d at 69; United States v. Ferguson, 935 F.2d 1518, 1525 (7th Cir. 1991); United States v. Morrison, 254 F.3d 679, 682 (7th Cir. 2001)).  

		Our supreme court has on several recent occasions considered the nature of traffic stops such as this and the

extent to which they may result in probable cause for a greater

intrusion.  As the court in Gonzalez recognized:

		"A Terry analysis includes a dual inquiry.  We must consider (1) 'whether the officer's

action was justified at its inception,' and

(2) 'whether it was reasonably related in

scope to the circumstances which justified

the interference in the first place.'"  Gon zalez, 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.

The supreme court recently used this construct again in People v. Bunch, 207 Ill. 2d 7, 16, ___ N.E.2d ___ (2003), quoting Gonza lez, 204 Ill. 2d at 235, 789 N.E.2d at 270:

		"'[W]e must consider, as an initial matter, whether the question is related to the ini

tial justification for the stop.  If the

question is reasonably related to the purpose

of the stop, no fourth amendment violation occurs.  If the question is not reasonably

related to the purpose of the stop, we must

consider whether the law enforcement officer

had a reasonable, articulable suspicion that

would justify the question.  If the question

is so justified, no fourth amendment viola tion occurs.  In the absence of a reasonable

connection to the purpose of the stop or a

reasonable, articulable suspicion, we must

consider whether, in light of all the circum stances and common sense, the question

impermissibly prolonged the detention or

changed the fundamental nature of the stop.'"

	     The conversations between defendant and the officers

here occurred during a routine "wants and warrants" check.  After

completing that check, however, Cessna issued defendant a warning

ticket for following too closely.  At that point, the traffic

stop was complete.  See Cox, 202 Ill. 2d at 468, 782 N.E.2d at 279.  As a consequence, the existence of reasonable, articulable suspicion is evaluated at that point in time.  See Cox, 202 Ill. 2d at 468, 782 N.E.2d at 279.  Cessna then knew that (1) the

interior of the car smelled like air freshener, (2) defendant was

driving a rental car, (3) defendant had an open, in-county

warrant from Cook County, (4) defendant had prior convictions for

offenses involving cannabis, and (5) defendant was traveling to

Mississippi.

	     If those items of information had justified a continued detention of defendant or a search of the vehicle, Cessna would

have had no reason to converse with the passenger.  He rightly

judged they did not, and therefore he found it necessary to

investigate further.  Evidently, in Cessna's own mind, reasonable

and articulable suspicion to extend the stop did not exist when

he issued the warning ticket.  Even assuming that defendant had

to sign the warning ticket after Cessna handed it to him, defen

dant's signing it would have taken but a few seconds, not enough

time for Cessna to exit the squad car, walk to defendant's car,

and have a conversation with the passenger.  The traffic stop was

effectively over when Cessna handed defendant the warning. 

Instead of allowing defendant to leave, however, he retained

defendant's driver's license, thereby indicating he was not free

to leave (see People v. Hardy, 142 Ill. App. 3d 108, 118, 491 N.E.2d 493, 500 (1986)), and went to gather evidence from the

passenger.  Cessna's questioning of the passenger prolonged the

traffic stop and, therefore, was not reasonably related in scope

to the initial reason for the stop.  See Bunch, 207 Ill. 2d at 17, ___ N.E.2d at ___ ("questioning of defendant *** occurred

after the purpose of the stop was concluded" (emphasis in origi nal)).

III. CONCLUSION

		For the reasons set forth above, we reverse the trial court's denial of defendant's motion to suppress evidence and

remand this cause for further proceedings not inconsistent with

this order.

		Reversed and remanded with directions.

		COOK, J., concurs.

	     MYERSCOUGH, P.J., specially concurs in part and dis

sents in part.

          PRESIDING JUSTICE MYERSCOUGH, specially concurring in part and dissenting in part:

		I respectfully specially concur in part and dissent in

part.  I would affirm on both grounds, including the trial

court's denial of defendant's motion to suppress.

		The majority recognizes that Cox, Gonzalez, and Bunch all affirmatively state that a police officer may detain a driver

beyond the completion of the traffic stop if an officer has

articulable suspicion.  Cox, 202 Ill. 2d at 468, 782 N.E.2d at 279; Gonzalez, 204 Ill. 2d at 227, 789 N.E.2d at 265; Bunch, slip op. at 7, 207   Ill. 2d at 16  ,    N.E.2d at   .  However, the majority finds that the officer in the instant case did not have articulable suspi

cion at the completion of the traffic stop, and therefore,

defendant was illegally seized.  I disagree.

		In the instant case, Cessna observed defendant commit a

traffic violation and initiated a traffic stop.  While investi

gating the violation and making permissible inquiries, Cessna's

suspicions were further aroused to the extent that Cessna became

aware ofhad specific and articulable facts that, taken together with

rational inferences therefrom, warranted defendant's continued

detention and investigation into matters unrelated to the traffic

stop. 

		Cessna testified that his articulable suspicion was

based upon (1) the odor of air freshener coming from defendant's

rental car, (2) defendant's criminal drug history, (3) defen dant's outstanding warrant for his arrest in Cook County, (4) the revocation of defendant's Illinois driver's license, and (5) the

inconsistent stories from defendant and Martin regarding their

destination.  While any one of these factors standing alone may

not be sufficient to justify defendant's detention, the court

considers the totality of the facts when determining if reason

able suspicion existed.  People v. Ortiz, 317 Ill. App. 3d 212, 223, 738 N.E.2d 1011, 1020 (2000).  Based upon the totality of

the facts, Cessna had reasonable suspicion based upon specific

and articulable facts to detain defendant to conduct a canine

test. 

		Even accepting arguendo the majority's finding that the traffic stop was complete when Cessna handed defendant the

warning citation (which was before Cessna spoke to the passenger

and was told of a different destination), I still find that the

totality of the facts warranted Cessna's continued detention. 

Cessna still had articulable suspicion based on (1) the odor of

air freshener coming from defendant's rental car, (2) defendant's criminal drug history, (3) defendant's outstanding warrant for his arrest in Cook County, and (4) the revocation of defendant's

Illinois driver's license.

		Moreover, I find the majority's assumptions regarding

Cessna's belief as to when he had established articulable suspi

cion inappropriate.  The majority states that "in Cessna's own

mind," Cessna did not believe that he had reasonable and

articulable suspicion to extend the stop after issuing defendant

the warning citation.  Slip op. at 11.  That was not Cessna's testimony.  To the contrary, Cessna testified at the hearing on

the motion to suppress that he was already suspicious of criminal activity when he made the decision to go talk to the passenger.  

		Moreover, once an officer has articulable suspicion,

the investigation does not halt.  Rather, the officer is justi

fied in briefly continuing his investigation to confirm or dispel

his suspicions.  Requesting a consent to search the vehicle or,

as in the instant case, conversing with the passenger is part of

that continuing investigation, which was based upon Cessna's

already established articulable suspicion.  Therefore, I would

affirm the trial court on both grounds.