NO. 4-02-0613 Filed 6/5/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) Brown County

LUCAS T. ROBERTS, ) No. 01CF4

 Defendant-Appellant. )

) Honorable

) David K. Slocum,

) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

Following a stipulated bench trial in May 2002, the

trial court found defendant, Lucas T. Roberts, guilty of unlawful

possession of cannabis with intent to deliver. 720 ILCS 550/5(c)

(West 2000). The court sentenced defendant to 24 months'

probation. Defendant appealed the court's denial of his motion

to suppress, arguing the deputy exceeded the scope of his

authority by questioning defendant about possible criminal

activity after the traffic stop was completed. We reversed the

court's denial of defendant's motion to suppress and vacated the

judgment of conviction. People v. Roberts, 349 Ill. App. 3d 972,

813 N.E.2d 748 (2004). The State filed a petition for leave to

appeal to the Supreme Court of Illinois. On September 27, 2006,

the supreme court denied the State's petition but directed this

court to vacate its judgment and reconsider defendant's appeal in
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light of Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842,

125 S. Ct. 834 (2005), and People v. Caballes, 221 Ill. 2d 282,

851 N.E.2d 26 (2006) (Caballes III). People v. Roberts, 221 Ill.

2d 665, 853 N.E.2d 1230 (2006) (nonprecedential supervisory order

on denial of leave to appeal). After reviewing the United States

Supreme Court's opinion and this states's supreme court decision

in Caballes III, we affirm the trial court's denial of

defendant's motion to suppress.

I. BACKGROUND

In December 2001, the trial court held a hearing on

defendant's motion to suppress. Deputy sheriff Michael Scott

Hainline testified that on August 25, 2000, he was assigned to

routine traffic patrol in Brown County. He testified that he had

undergone drug interdiction training as a significant part of his

training for traffic duties. Hainline testified that this

training taught him to go "beyond the initial traffic stop" and

to ask different questions and to look for different answers or

nonresponsiveness, to observe the body language of passengers, to

look for movement within the passenger compartment, and how to

identify different types of drugs and drug paraphernalia. In

addition to teaching him to identify situations in which a

further search may be warranted, the classes taught him

techniques to effectuate that search in a manner that would

reduce the level of constitutional scrutiny.
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At 4 a.m. on August 25, 2000, as Hainline was driving

eastbound along US Route 24, he noticed in his side mirror that

defendant's westbound car that he had just passed did not have a

working registration light. Hainline turned his car around,

switching from the eastbound lane to the westbound lane, and upon

confirming that the car did not have a working registration

light, pulled the car over. As he initiated his squad car's

overhead lights, "take-down" lights, and spotlights, Hainline

observed movement in the vehicle and noted that it appeared that

three subjects were in the vehicle. Hainline said the movement

was not unusual.

After stopping the car, Hainline approached the vehicle

on the passenger side. Hainline testified that the passenger in

the front seat initially looked surprised that he had come up on

his right instead of on the driver's side. Hainline then

introduced himself, stated the reason for the stop, and asked the

driver of the car for his license and proof of insurance. He

also asked for identification from the passengers, Adam Heather

in the front seat and Walter Bartz in the back. 

Hainline testified that Heather did not directly look

at him, except to answer questions about his identity and birth

date, but instead looked straight ahead when he was not speaking. 

Hainline characterized this behavior as suspicious under the "nolook test," saying that most passengers will look at the officer
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just as a show of respect and that it is suspicious if a

passenger tries to ignore the officer or pretend that he is not

there. Conversely, Hainline testified that Bartz, the passenger

in the rear seat, was overly friendly, which also was suspicious

behavior. 

As he was talking to the vehicle's occupants, Hainline

smelled a strong odor. Although he could not identify the scent,

he agreed that it could have been food. Hainline testified that

a strong odor, even if the smell could not be identified, was

often indicative of the masking of drugs or drug use in the car. 

Hainline took the information he had received and

returned to his patrol car to check that defendant's driver's

license was valid and to run a warrant check on everyone in the

vehicle. He found that both Heather and Bartz had criminal

histories, but defendant had none. Additionally, Hainline

testified that he had previously received information from the

West Central Illinois Drug Task Force that Heather was involved

in illegal drug activity. However, defendant had a valid

driver's license and proof of insurance, and no warrants were

outstanding for any occupant, so Hainline exited his patrol car

and approached the vehicle, this time from the driver's side. 

Hainline then asked defendant to exit his car and to join him at

the rear of the car. Defendant complied, and Hainline talked

briefly with him while he wrote out a warning ticket. Hainline
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asked him where they were coming from and what they were doing. 

Defendant answered that they had been at a friend's house in

Beardstown. When asked the name of the person they had visited,

defendant did not answer. Hainline then issued the warning

ticket to defendant and returned his insurance card and driver's

license, informing him that he was free to go. Hainline

testified that the reason he waited to question defendant about

the contents of his vehicle until after he had returned his

license and told him he was free to go was to prevent defendant

from saying at trial that he did not feel he was free to leave at

that moment. 

There is some dispute as to whether defendant reentered

the vehicle and was about to leave or whether he was simply

returning to the vehicle, but after defendant had received his

warning ticket, driver's license, and insurance card, Hainline

asked him if they had any open alcohol in the vehicle. Defendant

replied in the negative. Hainline asked him if any loaded guns

were in the car. Defendant answered no. Hainline asked if any

illegal drugs were in the car. Defendant testified he said no. 

However, Hainline testified that defendant did not provide an

answer but instead looked down and away from him. 

Hainline then asked for permission to search the

vehicle. Defendant testified that he did not initially consent. 

Hainline testified that defendant gestured toward the car when he
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first asked for consent. Hainline said that defendant verbally

consented after he asked again. Hainline said that defendant

then went to the car, said something to Heather and Bartz, and

then Heather and Bartz got out of the car. Defendant, however,

testified that he eventually consented after Hainline told him

that he could keep them there until defendant consented and that

a canine unit was nearby. Hainline denied telling them that he

could keep them there until they consented. However, Hainline

testified, "I think when I had all the passengers out of the

vehicle I said something about other units being in the area, one

may be a canine unit, not indicating there was." Hainline denied

that he said this to make defendant feel as if he would be held

there until a canine unit arrived unless he consented to a

search. 

When asked by defense counsel why he told defendant

about the possible canine unit, Hainline said, "Sir I had three

people out there. I was by myself. I said, there’s other units

out here. Have you guys seen any other units out here?" Defense

counsel asked Hainline why he would ask the men in the car

whether they had seen other units out that night. Hainline

responded, "I have three subjects. It’s 4:00 o’clock in the

morning. They don’t know, sir, that there’s not other units out

there, being state, county, whatnot." Defense counsel asked

Hainline whether he meant to imply that he was concerned for his
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safety. Hainline responded, "I think we have to take officer

safety into consideration in the way we teach things, obviously. 

An ideal situation would be two officers on one subject would be

minimal to handle people. Obviously, in my case, we had one

county deputy and three subjects." Hainline agreed that neither

defendant nor his codefendants had demonstrated any threatening

behavior or words up to this point. 

After Hainline received defendant’s consent to search

the car, he said he ordered the passengers out and frisked each

of them, finding no weapons or contraband. Curiously, Hainline

testified earlier that the men exited the car voluntarily after

defendant consented and then went to the car and spoke to them. 

He then opened the passenger side door and began a vehicle

search, which resulted in his finding a "one-hitter" pipe and a

large bag of plant material, which later field tested positive

for cannabis. 

The trial court denied defendant's motion to suppress,

finding that (1) the initial traffic stop was permissible, (2) a

reasonable person in defendant's position would believe he was

free to leave, (3) the detention was not improperly prolonged,

and (4) Hainline had reasonable suspicion to ask for consent to

search.

Before announcing its decision, the trial court stated:

"The officer had given [defendant] back
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all of his documentation, told him he was

free to go, and then said, [']by the way, can

I [search the car?'] And not any great

amount of time had passed when that had

occurred, just a matter of less than minutes,

unlike the Brownlee case. And unlike the

Brownlee case, [defendant] did not say to the

officer, [']do I have a choice?['] And the

officer had reason to ask for a consent to

search, and the reason was that, perhaps not

totally objective standards of eye contact,

movement, unidentifiable odor, which probably

could have been sweat socks, the name of the

passenger who had a criminal record and whose

name had been made known to the officer by

members of the Drug Task Force, and the

driver's inability to provide the name of

friends that were visiting."

Following a stipulated bench trial, defendant was found

guilty of unlawful possession of cannabis with intent to deliver. 

Defendant filed a posttrial motion, arguing the trial court erred

in denying his motion to suppress. On July 26, 2002, the court

denied defendant's posttrial motion and sentenced defendant to 24

months' probation. Defendant appealed the trial court's decision
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to deny his motion to suppress, and this court reversed the trial

court's ruling (Roberts, 349 Ill. App. 3d 972, 813 N.E.2d 748). 

On September 27, 2006, the Supreme Court of Illinois, by

supervisory order, ordered this court to vacate that decision and

review the case in light of the recent United States Supreme

Court opinion in Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125

S. Ct. 834, and Caballes III, 221 Ill. 2d 282, 851 N.E.2d 26.

In Caballes, defendant's motion to suppress was denied. 

There, during a routine traffic stop, the police allowed a dog to

circle defendant's car and sniff the area around his car. The

dog alerted, giving the officers probable cause to search. The

defendant argued that the dog search violated his fourth

amendment right to be free from unreasonable searches. U.S.

Const., amend IV. The United States Supreme Court found that

defendant had no expectation of privacy in the air surrounding

his car. The Court held that a dog sniff is permissible, even

absent reasonable suspicion to search, so long as it does not

unreasonably prolong the length of the stop. The Court remanded

the case to the Supreme Court of Illinois. In Caballes III, this

state's supreme court held that the state constitution affords

citizens the same protections as the fourth amendment, and the

dog sniff was therefore permissible. However, Caballes III is

not dispositive of the instant case. No canine unit ever arrived

or conducted a sniff of defendant’s vehicle. 
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However, our original opinion in this case focused on

the Supreme Court of Illinois's decision in People v. Harris, 207

Ill. 2d 515, 802 N.E.2d 219 (2003). In Harris, the supreme court

concluded that while asking for identification from the

passengers in a car during a routine traffic stop was

constitutionally permissible, running a warrant check on those

individuals was not. However, the Supreme Court of the United

States vacated the judgment in Harris and remanded it to this

state's supreme court to review in light of the Supreme Court's

decision in Caballes. Illinois v. Harris, 543 U.S. 1135, 161 L.

Ed. 2d 94, 125 S. Ct. 1292 (2005) (referring to Caballes, 543

U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834). The supreme court

has yet to issue its opinion in Harris on remand. Because of the

uncertainty of the supreme court's review in Harris, this court

is now compelled to reanalyze this case without reliance on

Harris. 

II. ANALYSIS

A. Standard of Review

When a trial court's ruling on a motion to suppress

involves factual determinations or credibility assessments, the

court's ruling will not be disturbed on review unless it is

manifestly erroneous. People v. Sorenson, 196 Ill. 2d 425, 430-
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31, 752 N.E.2d 1078, 1083 (2001). However, where the facts and

witness credibility are not in dispute, the ultimate question

posed by the legal challenge to the trial court's ruling on a

motion to suppress is reviewed de novo. Sorenson, 196 Ill. 2d at

431, 752 N.E.2d at 1083. 

B. Denial of Motion To Suppress

At issue in the instant case is whether the trial court

erred in denying defendant's motion to suppress, finding (1) a

reasonable person in defendant's position would have believed he

was free to leave after the warning citation was issued and

defendant's driver's license and insurance card were returned and

(2) defendant was not unconstitutionally seized when Hainline

questioned defendant after the traffic stop was complete.

Both parties acknowledge that the traffic stop was

complete once Hainline returned defendant's driver's license and

insurance card, handed defendant the warning citation, and told

defendant he was free to leave. Defendant argues, however, that

Hainline's later questions would make a reasonable person believe

that he was not free to leave.

An officer does not have to explicitly inform the

driver that he is free to go before asking for consent to search.

People v. Brownlee, 186 Ill. 2d 501, 512, 713 N.E.2d 556, 562

(1999). However, where an illegal detention has occurred, a

subsequent consent to search may be found to have been tainted by
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the illegality. Brownlee, 186 Ill. 2d at 519, 713 N.E.2d at

565. The court must look at the "totality of the circumstances"

to determine whether the driver’s consent to search was validly

given. Brownlee, 186 Ill. 2d at 514, 713 N.E.2d at 563, citing

Ohio v. Robinette, 519 U.S. 33, 40, 136 L. Ed. 2d 347, 355, 117

S. Ct. 417, 421 (1996). 

The relevant issue in this situation "'is whether a

reasonable person would feel free to decline the officers'

requests or otherwise terminate the encounter.'" People v.

Luedemann, 222 Ill. 2d 530, 550, 556, 857 N.E.2d 187, 203 (2006),

quoting Florida v. Bostick, 501 U.S. 429, 436, 115 L. Ed. 2d 389,

400, 111 S. Ct. 2382, 2387. Determining whether the defendant

felt free to leave is analyzed from an objective standard by the

court and is not construed literally. Luedemann, 222 Ill. 2d at

555, 857 N.E.2d at 202-03 (noting that the standard is not

whether an individual "practically" or "realistically" felt free

to leave). 

The fact that a traffic stop is complete does not

necessarily constrain a police officer from asking a vehicle's

occupant for permission to search the car. People v. Ramsey, 362

Ill. App. 3d 610, 617, 839 N.E.2d 1093, 1103 (2005). In Ramsey,

the stop was complete when the police officer returned

defendant’s license and insurance card and issued a warning

citation. The issue posed by the court in Ramsey was "whether a
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law-enforcement officer may, after the traffic stop is concluded,

ask the driver whether he has anything illegal in his truck, and

when the reply is negative, ask for permission to search." 

(Emphases in original.) Ramsey, 362 Ill. App. 3d at 622, 839

N.E.2d at 1104 (Knecht, J., specially concurring). This court

found that although the officer prolonged the stop by asking the

defendant whether he had anything illegal or unusual in his car

and requesting permission to search, the questioning took mere

seconds. The court concluded that the search in Ramsey was

proper because the officer did not exhibit any behavior that

would imply that the search he requested was mandatory. Ramsey,

362 Ill. App. 3d at 620, 839 N.E.2d at 1102. This court held

that the officer's actions did not constitute a show of authority

such that a reasonable person would not feel free to leave. 

Ramsey, 362 Ill. App. 3d at 617, 839 N.E.2d at 1100. "Unless the

circumstances of the encounter are so intimidating as to

demonstrate that a reasonable person would have believed he was

not free to leave if he had not responded, one cannot say that

the questioning resulted in a detention under the [f]ourth

[a]mendment." Immigration & Naturalization Service v. Delgado,

466 U.S. 210, 216, 80 L. Ed. 2d 247, 255, 104 S. Ct. 1758, 1763

(1984). However, this court in Ramsey cautioned, "An officer may

ask, not demand or direct, and the driver may refuse to answer

and be on his way." Ramsey, 362 Ill. App. 3d at 621, 839 N.E.2d
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at 1103.

Without a show of authority by the police officer,

defendant may be presumed to know that he is free to leave. 

United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497,

508-09, 100 S. Ct. 1870, 1876-77 (1980). In Mendenhall, the

Supreme Court listed four examples of circumstances that might

indicate a seizure even where the person did not attempt to

leave: "[(1)] the threatening presence of several officers,

[(2)] the display of a weapon by an officer, [(3)] some physical

touching of the person of the citizen, or [(4)] the use of

language or tone of voice indicating that compliance with the

officer's request might be compelled." Mendenhall, 446 U.S. at

554, 64 L. Ed. 2d. at 509, 100 S. Ct. at 1877. In addition,

Luedemann acknowledged that the Mendenhall examples, or factors,

are not an exhaustive list of actions police officers may take

that constitute a show of authority. Luedemann, 222 Ill. 2d at

556, 857 N.E.2d at 203. 

The chronology of events after the stop is crucial. 

The discrepancies between defendant's and Hainline's testimony

are material to determine the coercive nature of the encounter

from an objective standard. If Hainline's encounter with

defendant was coercive, defendant's consent would not be

voluntary. 

The uncontradicted facts in this case are that
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defendant was told he was free to go; defendant was questioned

about firearms, alcohol, and drugs; and defendant answered "no"

when asked about firearms and alcohol. The facts in dispute are

whether defendant refused to answer Hainline's question about

drugs, whether defendant was in his car or outside of his car

when Hainline questioned him and asked for his consent to search,

whether Hainline asked defendant about other units nearby before

he obtained defendant's consent to search, and whether Hainline

implied the other nearby units were canine units.

Both defendant and his codefendant, Heather, testified

that Hainline specifically said that there was a canine unit

nearby and that he said this prior to obtaining defendant's

consent. Hainline's testimony did not address this issue at all

until cross-examination. On cross-examination, Hainline admitted

that he made a comment to defendant about the possibility of

other units being nearby; however, he did not testify as to

whether he said this before or after defendant consented to the

search.

It is the trial court's responsibility to "determine

the credibility of witnesses and the weight given to their

testimony, to resolve conflicts in the evidence, and to draw

reasonable inferences from that evidence." People v. Singleton,

367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006), citing

People v. Phelps, 211 Ill. 2d 1, 7, 809 N.E.2d 1214, 1218 (2004). 
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We will not reverse the trial court's findings of fact unless

manifestly erroneous. Sorenson, 196 Ill. 2d at 430-31, 752

N.E.2d at 1083. However, the trial court did not make any

explicit finding of fact regarding the events that occurred after

the initial stop was complete. 

If Hainline's comment about the nearby units came after

defendant refused consent to search his vehicle, it would clearly

suggest to defendant that his compliance with the officer’s

request could be compelled. The effect of telling a citizen who

is not under arrest that a canine unit is nearby is coercive in

nature. The fact that Hainline acknowledged that he said this

because he was "outnumbered" indicates that Hainline intended the

comment to be a show of authority. However, if defendant had

already given his consent, the comment would be benign with

regard to whether defendant's consent was voluntary. 

Also, Hainline testified that during the stop he became

aware that one of the passengers in defendant’s vehicle, Heather,

had been "involved" in illegal drug activity. However, Hainline

questioned defendant, not Heather, after the stop was complete. 

Also, Hainline did not initially question defendant about drugs. 

First, he asked whether any alcohol or loaded weapons were in the

vehicle. Defendant answered "no" to both of these questions. 

Hainline then asked if drugs were in the vehicle. Hainline

contends that defendant refused to answer this question. Since
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defendant was not being detained and was free to leave, he had

the right to refuse to answer the officer. Florida v. Royer, 460

U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324

(1983). Defendant’s unwillingness to engage in conversation with

the officer could be deemed by a fact finder to suggest that

defendant was choosing not to voluntarily cooperate with

Hainline. 

After defendant refused to answer Officer Hainline’s

question about drugs, Hainline testified that he asked for

consent to search defendant’s vehicle. Defendant testified he

refused. If defendant refused, there can be no doubt that the

consensual nature of the officer’s encounter with the defendant

ended when defendant refused to answer the officer’s question and

refused the officer's request to search. People v. Ortiz, 317

Ill. App. 3d 212, 221, 738 N.E.2d 1011, 1019 (2000), citing Terry

v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). 

However, Hainline testified that although defendant did not

verbally respond the first time he asked to search defendant's

car, when he asked again defendant consented. Hainline did not

testify that defendant said anything between the first and second

time Hainline asked for defendant's consent.

Because it cannot be discerned from the record whether

Hainline told defendant about the other nearby units before he

obtained defendant's request to search, we defer to the trial
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court's findings. The trial court found that Hainline had

reasonable suspicion to request consent to search based upon

information Hainline acquired during the stop. Although the

trial court did not address whether Hainline mentioned calling a

canine unit to the scene before obtaining defendant's consent,

this testimony was before the court and it ruled in the State's

favor. Therefore, because the trial court's decision was not

against the manifest weight of the evidence, we affirm. 

III. CONCLUSION

For the reasons set forth above, we affirm the trial

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

Affirmed.

KNECHT and COOK, JJ., concur.