People v. Thomas

2018 IL App (4th) 170440

115 N.E.3d 325

425 Ill.Dec. 770

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Joshua THOMAS, Defendant-Appellee.

NOS. 4-17-0440

Appellate Court of Illinois, Fourth District.

Filed August 28, 2018

Rehearing denied October 1, 2018

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Linda J. Watson, of Peoria, for appellee.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion.

¶ 1 The McLean County circuit court held that after a police officer gave defendant, Joshua Thomas, a warning for an obstructed windshield ( 625 ILCS 5/12-503(c) (West 2016) ) and ended the traffic stop, the officer lacked reasonable suspicion to detain him further for a dog sniff. Consequently, the court granted defendant's motion to suppress the cannabis the dog had smelled in his motor vehicle and which the police had found in an ensuing search. Having filed a certificate of impairment (see People v. Young , 82 Ill. 2d 234, 247, 45 Ill.Dec. 150, 412 N.E.2d 501 (1980) ), the State appeals (see Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017) ). In our de novo review, we likewise find no reasonable suspicion to justify detaining defendant for the dog sniff. Therefore, we affirm the judgment.

¶ 2 I. BACKGROUND

¶ 3 A. The Charges

¶ 4 The information had three counts. Count I charged defendant with trafficking in cannabis (more than 2500 grams) ( 720 ILCS 550/5.1(a) (West 2016) ), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g) ), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g) ).

¶ 5 B. Defendant's Motion for Suppression of Evidence

¶ 6 Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield "unreasonably prolonged the duration of the stop," thereby subjecting him to an "unlawful seizure."

¶ 7 C. The Hearing on Defendant's Motion for Suppression

¶ 8 1. Henkel's Testimony

¶ 9 On May 26, 2017, the trial court held a hearing on defendant's motion for suppression. Defendant called Evan Henkel, who testified substantially as follows.

¶ 10 Henkel had been a police officer for over 10 years. He currently was a McLean County deputy sheriff, a position he held on January 15, 2017.

¶ 11 On that date, around 9:45 a.m., he was parked in the median of Interstate 74, near Carlock, Illinois, when he saw a black GMC Yukon sports utility vehicle (SUV) with Washington state license plates going east at 68 miles per hour. The SUV was within the 70-mile-per-hour speed limit. Nevertheless, Henkel, whose squad car was facing west, noticed that a bandana was hanging from the rearview mirror of the SUV, and the bandana looked wide enough to be a material obstruction of the driver's view (see 625 ILCS 5/12-503(c) (West 2016) ).

¶ 12 Henkel followed the SUV and pulled up next to it, on the left. That is what he typically did before pulling someone over: pull up alongside the vehicle to see how many people were in the vehicle and to observe their reaction when they saw his marked squad car. Defendant appeared to be the only person in the SUV, and he would not look over at Henkel as they went side by side down the highway. Instead, defendant kept his gaze riveted straight ahead as he held onto the steering wheel tightly at 10 o'clock and 2 o'clock. This tunnel vision seemed "very strange and odd behavior" to Henkel. In his experience, almost everyone would look over at him.

¶ 13 Henkel slowed down so as to get behind defendant, and he turned on his emergency lights. Defendant pulled off the highway, onto the right shoulder, and stopped next to a guardrail.

¶ 14 Henkel walked up to the driver's side window of the SUV and introduced himself. Defendant continued to look straight ahead and would not look at Henkel. He appeared to be very nervous, and, in response to Henkel's questions, he mumbled instead of speaking clearly. Although Henkel did not use the word "nervous" in his report, he "document[ed] the nervous indicators," namely, the hands at 10 o'clock and 2 o'clock on the steering wheel, not looking at the police officer, and mumbling. At Henkel's request, defendant produced his driver's license and proof of insurance. Henkel asked him about his travel plans. Defendant answered "he was going to Alabama" and that "he was driving straight through."

¶ 15 This answer caught Henkel's attention for two reasons. First, it was about a 35-hour drive from Washington to Alabama, and although it would have been possible, it would have been very unusual to drive 35 hours "straight through." Second, it appeared to Henkel from a map of the interstate highway system, which he accessed on his cell phone in his squad car, that "Illinois was way too far north" and there would have been no reason for defendant to drive through Illinois to get from Lakewood, Washington, where, according to his driver's license, he resided, to even the northernmost city of Alabama.

¶ 16 Henkel admitted that, at the time of the traffic stop, he did not use Google Maps to look up the route from Washington to Alabama. He did so, however, in preparation for his testimony, and Google suggested several routes, none of which went directly through Illinois. When shown defendant's exhibit No. 2, he agreed it appeared to be a printout from Google Maps showing a route from Washington to Alabama that went through Illinois, "top to bottom, straight through McLean County." He testified, however: "I don't believe that this shows anything about Interstate 74 near Carlock."

¶ 17 When Henkel asked defendant what he planned to do in Alabama, he answered he was going to visit his daughter "for a few days." Henkel thought to himself it made little sense to "travel 70 hours in a car to spend two days somewhere," especially since it would have been cheaper to fly than to drive an SUV such a long way. Henkel asked defendant if his daughter knew he was coming. Initially, defendant "could not answer [him]." Henkel testified: "He mumbled something out that wasn't even a word, so I had to ask him a second time, and he finally told me that, yes, she did know."

¶ 18 Defendant was, Henkel admitted, soft-spoken. According to Henkel, however, the difficulty in understanding him lay not so much in the softness of his voice as in his mumbling. Further into the traffic stop, however, his articulation grew clearer.

¶ 19 Defense counsel asked Henkel if he saw anything suspicious on the outside of the SUV, such as any sign of a hidden compartment. Henkel answered no, but he testified that inside the SUV he saw a large amount of "road trash": at least five energy drinks and "lots of empty wrappers of several bags of beef jerky, chips, [and] snacks"—the kind of stuff that "would be used to keep people up to drive long distances." He also saw "a backpack, no large amounts of luggage, [and] a large speaker box." From his vantage in the traffic stop, he could not see anything else inside the SUV.

¶ 20 Henkel gave defendant a verbal warning for an obstructed windshield and told him the traffic stop was over and he was free to leave. In fact, Henkel told defendant three times he was free to leave—but defendant stayed put. The emergency lights of the squad car remained on while Henkel was telling defendant he was free to leave.

¶ 21 After telling defendant he was free to leave and that the traffic stop was over, Henkel requested his consent to search the SUV. Defendant answered neither yes nor no. He did not express consent.

¶ 22 Henkel assured defendant that, under Illinois law, possessing less than 10 grams of cannabis or drug paraphernalia was no longer an offense for which one could be jailed. He asked defendant if he had any drug paraphernalia or small amounts of cannabis in his SUV. Defendant answered he did not.

¶ 23 Sometime after telling him the stop was over, Henkel asked defendant "about his criminal history of getting arrested in Kentucky." (The dispatcher had told Henkel that defendant had "multiple [arrests] for drug trafficking.") Defendant answered he had indeed been arrested in Kentucky but that he had turned his life around and that he now taught martial arts to the military and to the police.

¶ 24 Less than three minutes after telling defendant the third time that he was free to leave, Henkel "advised him that [he] was going to have the state police walk a canine around his car." The canine unit arrived in about 10 minutes. The dog alerted on the SUV. Henkel and the dog's handler searched the SUV and found cannabis, whereupon Henkel placed defendant under arrest.

¶ 25 Defense counsel asked Henkel to summarize why, before calling for a canine unit, he believed he had reasonable suspicion that defendant was a drug trafficker. Henkel answered:

"Um, Washington plates, driving below the posted speed limit, that he would not look over at me when I pulled up alongside of him, that he initially did not stop and then stopped upon a guardrail, that he continued to not look at me during the traffic stop, that he mumbled his words, [and] that he was driving 35 hours minimum to stay somewhere two days is unreasonable. It would not be a cost efficient trip to drive a vehicle that size 35 hours. It would be cheaper to fly. He would be off[-]route, in my opinion, and his criminal history for controlled substance trafficking."

¶ 26 On cross-examination by the prosecutor, Henkel testified that, in addition to taking the standard 12-week course at the police training institute, he had taken several "drug interdiction classes." The prosecutor asked him what he had learned in the drug interdiction classes. Henkel answered:

"A. They teach you the indicators of criminal activity.

Q. And what do they tell you to look for?

A. The stuff that I observed on this stop. The

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