People v. Cummings

2014 IL 115769

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 115769)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DERRICK A.

CUMMINGS, Appellee.

Opinion filed March 20, 2014.

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

Justices Freeman, Kilbride, Karmeier, and Burke concurred in the judgment and

opinion.

Chief Justice Garman dissented, with opinion, joined by Justice Thomas.

OPINION

¶1 The narrow issue in this case is whether a police officer violated the fourth

amendment when, after stopping a van solely because it was registered to a woman

with an outstanding arrest warrant, he asked the male driver for a driver’s license. For

the reasons that follow, we affirm the judgment of the appellate court, which affirmed

the circuit court of Whiteside County’s decision to grant defendant Derrick Cummings’

motion to suppress evidence. 2013 IL App (3d) 120128.

¶2 BACKGROUND

¶3 On January 27, 2011, the defendant received a citation for driving while license

suspended. 625 ILCS 5/6-303(d) (West 2010). The State later charged him by

information with that offense, a Class 4 felony. The defendant filed a motion to

suppress evidence.

¶4 At the hearing on that motion, the defendant testified that on the evening he was

ticketed, he was driving a van owned by a woman named Pearlene Chattic on a

four-lane road in the City of Sterling. A marked police squad car pulled alongside the

van at a stop sign. The defendant proceeded through the intersection, and the police

officer followed him for several minutes before activating the squad car’s lights.

According to the defendant, he had not violated any traffic laws. The citations that he

received were unrelated to the movement or the condition of the van.

¶5 Officer Shane Bland of the Sterling Police Department testified that on the evening

the defendant was ticketed, he was on patrol when he encountered a van driving in front

of his squad car. According to Officer Bland, “It appeared that the registration on the

vehicle had expired.” Officer Bland checked the van’s registration. He learned that the

registration was valid, but also that the van’s owner, Chattic, was “wanted on a

warrant.” Officer Bland pulled next to the van at a stop sign and attempted to identify

the driver as Chattic, but “the driver pinned themselves [sic] back in the seat,”

obstructing his view. He was unable to determine whether the driver was a woman or a

man.

¶6 Officer Bland testified that the driver proceeded through the intersection, and he

activated his squad car’s emergency lights. Officer Bland exited the squad car and

approached the van. Before he spoke to the driver, he determined that the driver was a

man. Officer Bland stated that he asked the defendant for a driver’s license and proof of

insurance and he explained why he stopped the van. The defendant had no license. If he

had produced a license and proof of insurance, Bland would have let him go.

According to Officer Bland, asking for a license and proof of insurance is “standard

operating procedure” when a car has been curbed.

¶7 On cross-examination by defense counsel, Officer Bland testified that he knew

Chattic was a woman. Officer Bland acknowledged that his written report of the

incident indicated as he pulled next to the van, its driver looked at him. He insisted,

however, that he could not see the driver’s face. Officer Bland stated that the only

reason he stopped the van was Chattic’s arrest warrant. He did not observe any other

violations of law by the driver or the van. Officer Bland repeated that before he spoke

to the driver, he determined the driver was a man. Bland first requested a driver’s

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license and proof of insurance as a matter of routine. After the defendant said he did not

have a license, Officer Bland explained the reason for the stop.

¶8 The trial court granted the motion. The court stated that here the facts were not

disputed, but the issue was complicated by the applicable case law. The court observed:

“[T]his was easy, *** this was not because [Officer Bland] *** saw a traffic

violation, this was not because he thought that [the defendant] was somebody

who was wanted. This was really simple. He was looking for Pearlene Chattic

and he clearly can see this is not Pearlene Chattic. And I commend him for not

trying to sugar coat that at all *** because he just said, *** I could tell right

away it wasn’t her.

*** [O]nce he makes that determination on a very simple reason for the

stop, I think going anywhere further with that, without further explanation to an

individual who *** clearly had to believe that he was not free to leave, I think

that’s going one step [beyond].”

After the trial court denied the State’s motion to reconsider, the State appealed pursuant

to Rule 604. Ill. S. Ct. R. 604 (eff. July 1, 2006).

¶9 The appellate court affirmed. 2013 IL App (3d) 120128. The court initially noted

the parties did not dispute that the purpose of the stop—determining whether the driver

of the van was Chattic—was initially lawful, but only that the request for the

defendant’s license after that purpose dissipated violated the fourth amendment. Id.

¶ 11. The appellate court stated, “Although it may be common protocol for police to

request a person’s driver’s license anytime a motorist has been lawfully stopped, that

request must be analyzed through the lens of constitutional reasonableness, mindful

that a lawful seizure can become unlawful if it is prolonged beyond the time needed to

complete the stop.” Id. ¶ 12 (citing Illinois v. Caballes, 543 U.S. 405 (2005), and

People v. Harris, 228 Ill. 2d 222 (2008)). The court continued, “Except where there is

articulable and reasonable suspicion that a motorist is unlicensed or the vehicle is

unregistered, or that either the motorist or vehicle is in violation of the law, stopping

and detaining a motorist in order to check his credentials is unreasonable under the

fourth amendment.” 2013 IL App (3d) 120128, ¶ 12 (citing Delaware v. Prouse, 440

U.S. 648 (1979)). Here, as soon as Officer Bland determined that Chattic was not the

driver of the van, any reasonable suspicion of criminal activity vanished, and seizure

became unlawful because there was no longer a fourth amendment justification for the

stop. 2013 IL App (3d) 120128, ¶ 13. The appellate court discussed People v. Bradley,

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292 Ill. App. 3d 208 (1997), upon which the State relied, and concluded it was wrongly

decided. 2013 IL App (3d) 120128, ¶ 14.

¶ 10 Justice Wright dissented. Justice Wright insisted that a police officer may approach

a driver to explain the basis for a traffic stop and to request the driver’s license, even

after reasonable suspicion has dissipated. Id. ¶ 24 (Wright, P.J., dissenting) (citing

People v. Hernandez, 2012 IL App (2d) 110266, ¶ 5, citing Bradley, 292 Ill. App. 3d at

211). Justice Wright reasoned that Officer Bland was justified in detaining the

defendant very briefly to insure he had a valid license and could lawfully drive away.

2013 IL App (3d) 120128, ¶ 24 (Wright, P.J., dissenting). According to Justice Wright,

Bland did not unduly prolong the stop by quickly asking the defendant to identify

himself. Id. ¶ 25 (citing People v. Safunwa, 299 Ill. App. 3d 707, 714 (1998)).

¶ 11 We granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26,

2010).

¶ 12 ANALYSIS

¶ 13 In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a

two-part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006) (citing

Ornelas v. United States, 517 U.S. 690, 699 (1996)). A trial court’s fact findings should

be reviewed only for clear error, and will be reversed only if they are against the

manifest weight of the evidence. Id. But where, as here, those facts are not disputed, the

trial court’s ultimate ruling that suppression was warranted should be reviewed

de novo. Id.

¶ 14 The legal principles that guide our analysis in this case are familiar and

well-established. The fourth amendment to the United States Constitution, which

applies to the States under the fourteenth amendment, protects the “right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures.” U.S. Const., amend. IV; Elkins v. United States, 364 U.S. 206, 213

(1960); see also Ill. Const. 1970, art. I, § 6. That amendment safeguards individuals

from arbitrary government action, and generally requires a warrant supported by

probable cause. People v. Jones, 215 Ill. 2d 261, 269 (2005) (citing Katz v. United

States, 389 U.S. 347, 357 (1967)).

¶ 15 However, the United States Supreme Court has recognized exceptions to the

warrant requirement in cases involving diminished expectations of privacy or minimal

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intrusions on privacy, where a warrantless search or seizure may be reasonable. Illinois

v. McArthur, 531 U.S. 326, 330 (2001). Such cases include traffic stops. Traffic stops

are certainly seizures under the fourth amendment (Whren v. United States, 517 U.S.

806, 809-10 (1996); People v. Bunch, 207 Ill. 2d 7, 13 (2003)), but they are less like

formal arrests, and more like investigative detentions (Berkemer v. McCarty, 468 U.S.

420, 439 (1984)). Accordingly, the reasonableness of a traffic stop is gauged by the

standard in Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, a police officer may briefly

detain and question a person if the officer reasonably believes that person has

committed, or is about to commit, a crime. Terry, 392 U.S. at 21-22; see also 725 ILCS

5/107-14 (West 2010). Such a detention is reasonable if it was initially justified, and if

it was “reasonably related in scope to the circumstances which justified the interference

in the first place.” Terry, 392 U.S. at 20; United States v. Brignoni-Ponce, 422 U.S.

873, 881 (1975) (holding “the stop and inquiry” must both be related in scope to the

justification for their initiation). “[A]n investigative detention must be temporary and

last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer,

460 U.S. 491, 500 (1983). A traffic stop that is initially justified “can become unlawful

‘if it is prolonged beyond the time reasonably required’ to complete the purpose of the

stop.” Harris, 228 Ill. 2d at 239 (quoting Caballes, 543 U.S. at 407); see Hernandez,

2012 IL App (2d) 110266, ¶ 5 (“an investigative stop that is originally lawful must

cease once reasonable suspicion dissipates”).

¶ 16 As we stated in Harris, mere police questioning does not constitute a seizure under

the fourth amendment. Harris, 228 Ill. 2d at 241 (quoting Muehler v. Mena, 544 U.S.

93, 101 (2005), quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)); accord People v.

McKnight, 198 Ill. App. 3d 530, 533 (1990) (“it is not necessary for a police officer to

have probable cause to request production of a driver’s license and *** such a request

does not create an illegal seizure”). This, however, does not end our analysis because

“we must consider the possibility, not that each question is a ‘seizure,’ but that

questioning may render the physical detention unreasonable.” (Emphasis omitted.)

United States v. Childs, 277 F.3d 947, 952 (7th Cir. 2002). That is, questioning is not

irrelevant in determining whether the detention has exceeded its lawful duration: “In a

garden variety Terry stop, the nature of the questioning during a later portion of the

detention may indicate that the justification for the original detention no longer

supports its continuation.” United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993).

In this regard, Caballes is instructive.

¶ 17 In Caballes, the defendant was stopped for speeding on an interstate highway.

After the state trooper who initiated the stop radioed the dispatcher to report his

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activity, another state trooper, a member of the state police drug interdiction team,

headed for the location of the stop with a narcotics-detection dog. While the first

trooper wrote the defendant a warning ticket, the second trooper walked the dog around

the defendant’s car. The dog alerted the second trooper regarding the presence of drugs

in the trunk. The defendant was arrested for a drug offense. He filed a motion to

suppress evidence. The trial court denied that motion, and convicted the defendant. The

appellate court affirmed that decision. People v. Caballes, 321 Ill. App. 3d 1063 (2001)

(table) (unpublished order under Supreme Court Rule 23). This court reversed, holding

that the canine sniff was performed in the absence of any specific and articulable facts

suggesting drug activity, so the use of the dog unjustifiably enlarged the scope of a

routine traffic stop into a drug investigation. People v. Caballes, 207 Ill. 2d 504 (2003).

¶ 18 The Supreme Court reversed. The Court noted that the initial seizure was based on

probable cause to believe that the defendant was speeding, and concededly lawful. The

court further noted:

“[A] seizure that is lawful at its inception can violate the Fourth Amendment if

its manner of execution unreasonably infringes interests protected by the

Constitution. [Citation.] A seizure that is justified solely by the interest in

issuing a warning ticket to the driver can become unlawful if it is prolonged

beyond the time reasonably required to complete that mission.” Caballes, 543

U.S. at 407.

In rejecting our analysis, the Court accepted the trial court’s conclusion that “the

duration of the stop in this case was entirely justified by the traffic offense and the

ordinary inquiries incident to such a stop.” Id. at 408.

¶ 19 Caballes links the reasonableness of a traffic stop’s duration to the reason for the

stop. See Harris, 228 Ill. 2d at 235-36. But the reason for the stop varies from case to

case. Though a police officer’s request for a driver’s license may be an expected,

preliminary, and routine part of virtually every traffic stop (see United States v.

Johnson, 680 F.3d 966, 974-75 (7th Cir. 2012)), it defies Caballes, and Terry, to

suggest that “standard operating procedure” for most traffic stops is necessarily

constitutionally permissible in all stops. The State is correct in its observation that the

fourth amendment does not draw a bright line forbidding all police actions that could

prolong a traffic stop even momentarily. But neither does it draw a bright line allowing

such actions as a matter of course. Because our analysis under Terry focuses on

reasonableness under the circumstances (see People v. Sorenson, 196 Ill. 2d 425, 441

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(2001)), those circumstances dictate what inquiries are reasonable. To pass

constitutional muster, a request for identification must be tethered to, and justified by,

the reason for the stop. See Terry, 392 U.S. at 19 (holding that the length and scope of

the detention “must be strictly tied to and justified by the circumstances which rendered

its initiation permissible”) (internal quotation marks omitted); Royer, 460 U.S. at 500

(“The scope of the detention must be carefully tailored to its underlying justification.”).

¶ 20 Here, Officer Bland had reasonable suspicion that the van’s registration was

expired, but that suspicion disappeared when he conducted a computer check. The

check, however, revealed the outstanding arrest warrant for Chattic, the registered

owner of the van, whom Bland knew was a woman. Officer Bland could not determine

whether the driver of the van was a woman, so he had reasonable suspicion that the

driver was subject to seizure. That suspicion, like the first, disappeared when he saw

that the defendant was not a woman and, therefore, could not be Chattic. Requesting

the defendant’s license impermissibly prolonged the stop because it was unrelated to

the reason for the stop.

¶ 21 We find the reasoning in United States v. McSwain, 29 F.3d 558 (10th Cir. 1994)

persuasive. There, a police officer saw a vehicle with no front or rear license plate, but

a temporary registration sticker in the rear window. The officer was unable to read the

sticker, so he stopped the vehicle to verify the validity of the sticker. As he approached

the vehicle, the officer observed that the sticker was valid, but he spoke to the driver

and requested identification from the driver and a passenger. The driver did not have a

license, but he provided other identification. The officer conducted a computer search

and learned that the driver had a suspended license and a prior record of drug and gun

violations. The officer returned to the vehicle, questioned the driver about his travel

plans, and asked for consent to search. The subsequent search of the vehicle’s trunk

revealed drugs and a gun. The driver filed a motion to suppress, which the trial court

denied. He pleaded guilty to various drug and gun offenses.

¶ 22 The federal court of appeals reversed, holding that the initially valid stop evolved

into an unreasonable detention because once the officer saw that the sticker was valid,

the purpose of the stop was satisfied and further detention to question the driver about

his itinerary and to request his license and registration “exceeded the scope of the

stop’s underlying justification.” Id. at 561. The court noted that while other cases from

that circuit had held that an officer conducting a routine traffic stop may inquire about

identity and travel plans, those cases were inapposite; they involved “situations in

which the officer, at the time he or she asks question or requests the driver’s license and

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registration, still has some ‘objectively reasonable articulable suspicion’ that a traffic

violation ‘has occurred or is occurring.’ ” Id. (quoting United States v. Soto, 988 F.2d

1548, 1554 (10th Cir. 1993)). Because the officer’s reasonable suspicion regarding the

validity of the sticker was “completely dispelled prior to the time” he questioned the

driver and requested his license, he lacked reasonable suspicion to prolong the

detention. (Emphasis in original.) Id. at 561-62.

¶ 23 Safunwa, a case from our appellate court, provides apt contrast. In that case, a

federal marshal was searching for a fugitive with an outstanding arrest warrant for

heroin distribution. The marshal had never personally seen the fugitive, but he did have

a photograph of him. During surveillance, the marshal observed a vehicle whose driver

matched the approximate height, weight, and age of the fugitive. The marshal followed

the vehicle for approximately half an hour, and eventually pulled next to the vehicle to

get a closer look at the driver. Based upon this observation, the marshal believed the

driver was the fugitive. Although neither the driver nor the vehicle was in apparent

violation of any traffic laws, the marshal curbed the vehicle and asked the driver for his

license. The driver handed the marshal a citation bearing his name, and not the

fugitive’s name. The marshal conducted a computer search of the driver’s identity,

which revealed that the driver’s license had been suspended. The driver was arrested

and charged with driving on a suspended license. A subsequent search at the police

station produced drug evidence. The driver filed a motion to suppress, and the trial

court denied the motion.

¶ 24 The appellate court affirmed, holding that the marshal was justified in not only

stopping the vehicle, but also requesting the driver’s identification. Safunwa, 299 Ill.

App. 3d at 711. The court, relying on cases holding that requests for identification

during traffic stops are permissible, still correctly reasoned that the similarity between

the driver and the fugitive rendered the request in that case constitutionally permissible.

Id. Unlike the driver in Safunwa, the defendant here bore no superficial resemblance to

the subject of the arrest warrant.

¶ 25 The State asserts that Officer Bland asked only for basic documentation that all

Illinois drivers are required to carry. See 625 ILCS 5/6-112 (West 2010) (requiring

licensed drivers to keep their licenses in their immediate possession while operating

motor vehicles and to display those licenses upon demand by law enforcement

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officials). 1 The State insists that the request was brief, minimally intrusive, and related

vaguely to officer safety, so it was reasonable under the totality of the circumstances.

But the State offers little else in the way of constitutional analysis, and instead points

out that requests for identification have been upheld in several closely analogous cases,

including Hernandez, Bradley, and People v. Bartimo, 345 Ill. App. 3d 1100 (2004).

¶ 26 Those cases do stand for the proposition that a police officer may always request

identification during a traffic stop, even after reasonable suspicion evaporates. See

also, e.g., People v. Ortiz, 317 Ill. App. 3d 212, 220 (2000) (stating, without citation,

that “[w]hen a police officer is engaged in a minor traffic stop, he may briefly detain the

driver to request a valid driver’s license”); People v. Koutsakis, 272 Ill. App. 3d 159,

163 (1995); People v. Jennings, 185 Ill. App. 3d 164, 169 (1989). Some federal appeals

courts, as well as courts in other states, have adopted a similar rule. See, e.g., United

States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008) (“During a traffic stop, an officer

may detain the occupants of the vehicle ‘while the officer completes a number of

routine but somewhat time-consuming tasks related to the traffic violation,’ ” including

requesting the driver’s license.); United States v. Pruitt, 174 F.3d 1215, 1219 (11th Cir.

1999) (“An officer conducting a routine traffic stop may request a driver’s license and

vehicle registration ***.”); State v. Candelaria, 245 P.3d 69, 75 (N.M. App. 2010)

(“As long as the vehicle has been validly stopped, for whatever reason, police may

always ask the driver to produce” license, registration, or insurance documents, “even

after the original suspicion evaporates,” because the driver has no legitimate

expectation of privacy in such documents.). But such a broad rule, however attractive

in its simplicity and valuable in its potential to detect crime, stands on weak

constitutional footing. Simply put, unless a request for identification is related to the

reason for the stop, it impermissibly extends the stop and violates the Constitution. To

the extent Illinois appellate court cases, including Hernandez, Bradley, and Bartimo,

hold otherwise, they are overruled.

¶ 27 We note in closing that the State does not contend this was a consensual encounter.

Officer Bland asked for the defendant’s license, registration, and proof of insurance

before he informed the defendant of the reason for the stop, and he never gave the

defendant an “all clear.” See United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir.

2006). Of course, a police officer need not inform a driver that he or she is free to leave

before making further inquiries. See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996); but

1

The State does not argue that the defendant violated section 6-112, or that, if he did, that offense

provided Officer Bland with new reasonable suspicion to extend the stop. Accordingly, we need not

address the relevance of that statute to the issue here.

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see People v. Adams, 225 Ill. App. 3d 815, 819 (1992) (holding that, once a police

officer determined that a defendant’s temporary registration was valid, “it just naturally

follows” that the officer would “approach the defendant, explain the reason for the

stop, apologize, and advise defendant he was free to leave”). But something must occur

to terminate a traffic stop that has lost its justification and become unlawful before we

can analyze any inquiries as consensual.

¶ 28 Our holding is limited to the facts in this case. Because Officer Bland lacked

reasonable suspicion after he learned the defendant could not be the subject of the

outstanding arrest warrant, his request for the defendant’s license impermissibly

prolonged the stop and violated the fourth amendment.

¶ 29 CONCLUSION

¶ 30 For the reasons that we have stated, the judgment of the appellate court is affirmed.

¶ 31 Affirmed.

¶ 32 CHIEF JUSTICE GARMAN, dissenting:

¶ 33 I agree with the majority on much of its analysis and that this case presents a narrow

question regarding the permissible bounds of a nonconsensual Terry-style traffic stop.

The defendant’s production of a license was compelled. All of Officer Bland’s

reasonable suspicion that the driver might have a warrant out for his arrest evaporated

when he saw that the defendant was not Pearlene Chattic. Asking for the defendant’s

license would be prohibited under Illinois v. Caballes, 543 U.S. 405, 407 (2005), if it

“prolonged [the stop] beyond the time reasonably required” to carry out its initial

purpose. But the majority’s result complicates law enforcement without any significant

analysis of the fourth amendment interest preserved. To reach this result, the majority

relies on one Illinois case that is distinguishable on its facts but, in its reasoning, would

counsel the opposite result. People v. Safunwa, 299 Ill. App. 3d 707 (1998). The

majority also relies on a federal case, United States v. McSwain, that precedes the

Supreme Court’s most recent word on stop-prolonging by eleven years—and which

appears to use the very test the Supreme Court struck down in Caballes. United States

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v. McSwain, 29 F.3d 558 (10th Cir. 1994). Relying on these two unstable footholds, the

majority overrules a number of Illinois appellate court cases that reached the opposite

result, and the majority largely misses the import of the Supreme Court’s ruling in

Caballes, which this court previously recognized in People v. Harris, 228 Ill. 2d 222

(2008).

¶ 34 In Illinois v. Caballes, the Supreme Court considered whether a drug-detecting dog

sniff of a vehicle stopped for speeding violated the driver’s fourth amendment rights.

The Supreme Court accepted the conclusion of our courts that “the duration of the stop

in this case was entirely justified by the traffic offense and the ordinary inquiries

incident to such a stop.” (Emphasis added.) Caballes, 543 U.S. at 408. The Court

rejected this court’s conclusion that bringing a drug-detecting dog to the scene

“impermissibly broadened the scope of the traffic stop *** into a drug investigation.”

People v. Caballes, 207 Ill. 2d 504, 509 (2003). The Supreme Court upheld the dog

sniff and subsequent search because the stop was not “prolonged beyond the time

reasonably required to complete that mission” of writing a warning ticket. Caballes,

543 U.S. at 407.

¶ 35 In People v. Harris, this court applied Caballes and upheld admission of the fruits

of a search incident to the arrest of a passenger. The arresting officer had discovered

warrants for the passenger’s arrest after asking that passenger for his driver’s license.

The officer testified that he had asked for the passenger’s license so that the passenger

might be able to remove the car from the scene, as the vehicle’s driver was to be

arrested. This court held that a warrant check does not violate the fourth amendment, so

long as it does not “unnecessarily prolong[ ]” the stop, and the stop is “ ‘otherwise

executed in a reasonable manner.’ ” Harris, 228 Ill. 2d at 237 (quoting Caballes, 543

U.S. at 408). Harris did not argue that the warrant check had unreasonably prolonged

the stop. Id. at 236. He did argue he did not voluntarily turn over his driver’s license, an

argument this court rejected on the basis that the defendant-passenger was free to

decline the license request even though he could not terminate the encounter. Id. at

248-49. This court also recognized that Caballes struck down the “fundamental

alteration of the nature of the stop” prong this court had adopted for determining if an

initially lawful stop had become unlawful. Id. at 242. This left only the duration prong

intact. Id.

¶ 36 Yet in the case at bar, the majority reaches back to 1994, eleven years before the

Supreme Court’s decision in Caballes, to find support in a case that suppressed a search

on the grounds it “exceeded the scope of the stop’s underlying justification.” McSwain,

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29 F.3d at 561. The McSwain court made its decision about the permissible scope of the

stop without the benefit of the Caballes Court’s guidance. In its brief analysis, the

McSwain court did not make clear whether it made its decision properly on duration or

erroneously on the nature of the stop, but it did apply the bright-line rule the majority

disclaims. Supra ¶ 19 (“[T]he fourth amendment does not draw a bright line forbidding

all police actions that could prolong a traffic stop even momentarily.”); see McSwain,

29 F.3d at 561 (“Once Trooper Avery approached the vehicle on foot and observed that

the temporary sticker was valid and had not expired, the purpose of the stop was

satisfied” and any further inquiries “exceeded the scope of the stop’s underlying

justification.”). Not having the benefit of the Caballes decision before it, the McSwain

court never considered whether the officer’s further actions might qualify as “ordinary

inquiries incident to such a stop,” nor did it make clear that the officer improperly

prolonged the stop.

¶ 37 McSwain’s lack of clarity in its mode of analysis and the shift in this area of the law

in the intervening years both counsel against relying upon it so strongly. The problem is

exacerbated by portions of the majority opinion which suggest continuing vitality for

“the nature of the stop,” despite its demise in Caballes. Under the relevant authorities,

the initial purpose of the stop clearly plays a role in defining the permissible duration.

But portions of the majority opinion—e.g., “Simply put, unless a request for

identification is related to the reason for the stop, it impermissibly extends the stop and

violates the Constitution”—appear to reason that Officer Bland’s license request was a

per se prolonging of the stop, which must be impermissible because it was outside the

scope of his original purpose. Supra ¶ 27. This reasoning is perilously close to a

resurrection of the defunct “nature of the stop” prong: if asking for a license is outside

the current nature of the stop, then asking for a license is per se a prohibited prolonging.

Caballes amply demonstrates the flaw in such a notion: the dog sniff was completely

unrelated to the speeding offense but occurred in parallel time to the issuance of the

warning ticket and thus did not prolong the stop. 2 This court should take care to be clear

that the “nature of the stop” prong is no longer a part of the test for exceeding the

permissible scope of a seizure; it should also take care to avoid relying on cases that

may have been decided on that basis. If the court finds the case law on this issue

2

Slightly different facts in this case would also demonstrate the error: if defendant had been

traveling with a woman who plausibly might have been Pearlene Chattic, and Officer Bland had been

traveling with a fellow officer, Caballes would not find a prolonging in Officer Bland asking defendant

for his driver’s license while a fellow officer asked the female passenger if she was Pearlene Chattic.

Officer Bland’s license request would be unrelated to the purpose of the stop, but it would not prolong

the stop.

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underdeveloped within the state, it should instead look to more recent federal precedent

that lacks any indication of having been decided on grounds that have since been held

incorrect. See, e.g., Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s

inquiries into matters unrelated to the justification for the traffic stop, this Court has

made plain, do not convert the encounter into something other than a lawful seizure, so

long as those inquiries do not measurably extend the duration of the stop.” (Emphasis

added.)) (upholding officer’s questioning of passenger about gang affiliation); United

States v. Dixie, 382 F. App’x 517, 519 (7th Cir. 2010) (“In Childs we explicitly held

that the Fourth Amendment does not require the release of a person from a traffic stop

‘at the earliest moment that step can be accomplished.’ [Citation.] Instead, ‘[w]hat the

Constitution requires is that the entire process remain reasonable. Questions that hold

potential for detecting crime, yet create little or no inconvenience, do not turn

reasonable detention into unreasonable detention.’ ” (quoting United States v. Childs,

277 F.3d 947, 954 (7th Cir. 2002))).

¶ 38 The other case on which the majority leans, Safunwa, is factually distinguishable

from the case at bar regarding the driver’s license request. Because Safunwa had the

same approximate height, weight, age, hairstyle, and mustache as a wanted fugitive,

officers in that case had a justifiable basis to believe the driver might have been the

fugitive they were seeking. Safunwa, 299 Ill. App. 3d at 709, 711. Accordingly, the

officers had sufficient suspicion to request a driver’s license. Id. The Safunwa decision

is unremarkable in its resolution that officers can request a driver’s license of a driver

when they suspect he is a wanted fugitive, and it does not substantially guide the

outcome of this case, in which Officer Bland has testified he had no suspicion the

defendant had committed other crimes.

¶ 39 But the Safunwa court’s resolution of the other issues confronting it counsels

strongly against the majority’s result here. Having obtained identification indicating

Safunwa was not the fugitive sought, the officers nonetheless carried out a warrant

check on the driver’s identity. Only on the issue of the warrant check did the Safunwa

court actually confront the question of whether officers unreasonably deviated from the

original scope of the stop. In reviewing that issue, Safunwa favorably cited several

cases that would uphold the license demand in the present case. Id. at 713 (“In both

McKnight and Francis, courts held that police had the right to request production of a

driver’s license without probable cause and that such a request did not constitute an

illegal seizure.”); id. at 713-14 (analogizing to a court upholding a warrant check after a

driver tendered an apparently valid driver’s license; noting Idaho, Oregon, and

Wisconsin cases allowing such checks). The Safunwa court simply concluded that a

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warrant check of a driver who matched a fugitive in a vague sense was a lesser

intrusion under the fourth amendment than requesting a driver’s license and checking

for warrants without reasonable suspicion. Because the other cases permitted the

license request and warrant check, the Safunwa court reasoned the warrant check alone

was a lesser intrusion. Safunwa is, in the light most favorable to the majority’s

argument, simply distinguishable from the facts in this case. But the cases forming

Safunwa’s rationale would have upheld this license demand, giving us ample reason to

believe the Safunwa court would have as well.

¶ 40 Neither McSwain nor Safunwa should guide this court to this result. McSwain is

conclusory, dated, and may well have been decided on grounds the Supreme Court has

since overruled. Safunwa is inapposite on the question of asking for a license but would

counsel favorably toward police taking further actions like warrant checks. The

majority opinion suffers a dearth of authorities that adequately support its result.

¶ 41 The United States Supreme Court has given previous guidance on the fourth

amendment intrusion that can accompany demanding a driver’s license without

suspicion that a driver is committing a crime or subject to arrest, in Delaware v.

Prouse, 440 U.S. 648 (1979). Prouse is not directly applicable in that it concerns stop

initiation, rather than the permissible duration of a stop, but it does provide guidance as

to how this court might analyze the fourth amendment intrusion at issue. In Prouse, the

Supreme Court considered whether a patrol officer could discretionarily stop an

automobile solely to check the license status of its driver. There was no probable cause

to believe the driver had committed a traffic offense, nor any reason to suspect the

driver was subject to seizure for violation of the law. The Court considered contexts in

which it had upheld random license checks, contrasting the objective and subjective

fourth amendment intrusions in those contexts to the stop at issue. The objective fourth

amendment intrusions considered were “ ‘the stop itself, the questioning, and the visual

inspection.’ ” Id. at 656 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 558

(1976)). The subjective fourth amendment intrusions considered were “ ‘the generating

of concern or even fright on the part of lawful travelers.’ ” Id. (quoting

Martinez-Fuerte, 428 U.S. at 558). The Court in Prouse assessed the “important ends”

of highway safety against the likelihood a spot check would produce results, to

determine whether it was a “sufficiently productive mechanism to justify the intrusion

upon Fourth Amendment interests which such stops entail.” Id. at 659. Reasoning that

drivers stopped for observed traffic offenses were more likely than the public at large to

be unlicensed, the Court concluded random license-check stops were not sufficiently

productive. Id. at 660. The fourth amendment intrusions, despite being “limited in

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magnitude,” were unjustified because they occurred “at the unbridled discretion of law

enforcement officials.” Id. at 661. “This kind of standardless and unconstrained

discretion is the evil the Court has discerned when in previous cases it has insisted that

the discretion of the official in the field be circumscribed, at least to some extent.” Id.

¶ 42 Applying the Supreme Court’s balancing to the case at bar, the objective intrusions

of the stop and visual inspection had already occurred by the time Officer Bland asked

for defendant’s license. All that remained of the objective intrusions identified in

Prouse would be “questioning.” It is difficult to fully analyze the subjective intrusion

of asking for defendant’s license after he was lawfully stopped. The trial court

testimony gives no indication whether defendant knew Chattic had a warrant out for

her arrest, or if he might have understood the traffic stop to be about her warrant and

not his driving. But in any event, he had no reasonable expectation that his status as an

unlicensed driver would remain private once he was lawfully stopped. To the extent

defendant experienced heightened subjective intrusion by virtue of knowing he drove

without a license, it was defendant’s creation and not Officer Bland’s. Toward the

Prouse Court’s analysis of whether this might be a “sufficiently productive

mechanism” to justify its impact on the fourth amendment, it is not necessary to

speculate whether drivers who borrow vehicles from registrants wanted by the law

pose more risk of driving unlicensed. The fourth amendment intrusion of asking for a

license from a driver who is already lawfully stopped is both objectively and

subjectively minimal. This is especially true where, as here, there was a complete

absence of officer discretion in asking for the license. Officer Bland testified on direct

and cross examination that asking for a license from drivers pulled over was “standard

operating procedure” and “a matter of routine.” I agree with the majority that

departmental policy will not remedy a constitutional infirmity; however, it does

eliminate the central concern of Prouse and further minimize any fourth amendment

intrusion presented by asking for defendant’s license. Prouse thus counsels that any

intrusion presented by demanding a license of a driver already lawfully pulled over

while driving on a public roadway is minimal.

¶ 43 Applying Caballes, Harris, and Prouse to the case at bar, I would agree with the

majority that defendant’s compliance with Officer Bland’s request for a license was

compelled. Accordingly, the stop’s duration was reasonable only if it was not

prolonged beyond the time justified by looking for Pearlene Chattic and the “ordinary

inquiries incident to such a stop.” I do not agree with the majority’s reasoning that

Officer Bland’s request for a license was a per se prolonging of the stop and would

instead consider requesting a driver’s license of a driver lawfully stopped on a public

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roadway to be an “ordinary inquir[y] incident to such a stop,” under Caballes. As

discussed above, the objective and subjective fourth amendment intrusion in

examining the license of a driver who is already lawfully stopped is minimal. Where

that driver is operating a vehicle on a public roadway at the time the lawful stop is

initiated, it is entirely reasonable that an officer ensure he is legally permitted to drive

that vehicle away when the stop concludes.

¶ 44 I would hold that where an officer lawfully initiates a traffic stop, carries out that

stop reasonably, and acts pursuant to department policy, the officer may request a

driver’s license from the driver of that vehicle, as an ordinary inquiry incident to such a

stop. This would hold true whether the officer pulled the vehicle over due to a warrant

for the arrest of the vehicle’s registrant, for reasonable suspicion of an offense which

proves to be accurate, or for reasonable suspicion of an offense which evaporates as he

looks into it.

¶ 45 The majority’s rule, while narrow in this case, casts a wider shadow—that officers

need an independent basis for requesting a driver’s license in a lawful traffic stop. This

result protects a driver from an objectively and subjectively minimal intrusion, at the

expense of complicating law enforcement in a situation “especially fraught with danger

to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983). The Supreme Court

has recognized that danger to driver and officer alike is minimized “if the officers

routinely exercise unquestioned command of the situation.” (Internal quotation marks

omitted.) Maryland v. Wilson, 519 U.S. 408, 414 (1997). In addition to increasing risk

by injecting needless uncertainty to law enforcement, the majority’s decision also

creates tension 3 with the legislature’s expressed intent toward transparency in traffic

stops. See 625 ILCS 5/11-212 (West 2012) (requiring law enforcement officers to

gather statistical information on drivers stopped or cited; requiring Department of

Transportation to analyze data and assess practices that resemble racial profiling). To

reach this result, the majority has relied on cases that are outdated or inapposite,

without examining whether the actions taken in this stop meaningfully intruded upon

defendant’s fourth amendment rights.

3

If not direct conflict—suppose a slightly different factual scenario of an officer who stopped a

vehicle for what appeared to be expired registration and discovered on his approach that the registration

was valid. Under the majority’s rule, it would seem the officer would not be permitted to prolong the stop

by continuing to the window to get the driver’s demographic information. See 625 ILCS 5/11-212 (West

2012).

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¶ 46 I find they did not, and I respectfully dissent.

¶ 47 JUSTICE THOMAS joins in this dissent.

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