People v. Bartelt

Docket No. 107276.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

_________________

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

CHERYL L. BARTELT, Appellant.

Opinion filed March 24, 2011.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Thomas and Garman concurred

in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justices Burke

and Theis.

OPINION

After a lawful traffic stop, a police officer performed a set-up

procedure, which entailed ordering the driver, defendant, Cheryl L.

Bartelt, to roll up her truck’s windows and turn the ventilation

system’s blowers on high before a second officer conducted a canine

sniff of the exterior of her truck. The dog alerted on both doors of the

truck, and a subsequent search of the truck resulted in discovery of

drug evidence. Defendant was arrested and charged with unlawful

possession of methamphetamine (720 ILCS 646/60(b)(1) (West

2006)). She filed a motion to suppress the evidence recovered during

the traffic stop. The circuit court of Adams County granted the

motion to suppress. The State filed an interlocutory appeal pursuant

to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006). A

majority of the appellate court reversed the circuit court’s order

suppressing the evidence. 384 Ill. App. 3d 1028. This appeal followed.

We are asked to determine whether the officers’ actions in

ordering defendant to roll up her windows and turn the blowers on

high before conducting a dog sniff of the truck’s exterior constituted

an unreasonable search under the fourth amendment. We hold that it

did not. Accordingly, we affirm the judgment of the appellate court,

reverse the judgment of the circuit court, and remand to the circuit

court for further proceedings consistent with this opinion.

BACKGROUND

The evidence introduced at the hearing on the motion to suppress

can be summarized as follows. On the evening of July 29, 2006,

Quincy police officer Mike Tyler, who had received information that

defendant was a methamphetamine user, conducted surveillance of her

apartment. At 6:45 p.m., he saw a pickup truck parked on the

sidewalk in front of her apartment, ran the plates, and learned the

truck was registered to her. At 8:15 p.m., he saw her and a man, later

identified as Josh Miracle, come out of the apartment and place white

trash bags in the back of the truck. Defendant got in the driver’s seat

and Miracle in the passenger seat. Defendant drove away, and Officer

Tyler followed. He then alerted Quincy police officer Darin Kent, a

member of the canine unit, that he intended to make a traffic stop and

asked Officer Kent to conduct a dog sniff during the stop. Officer

Tyler activated his lights when defendant pulled into a nearby gas

station. He radioed Officer Kent that he had made the stop and

provided the location.

Officer Tyler then approached defendant’s truck and told her that

she had violated the Illinois Vehicle Code by parking her truck on the

sidewalk in front of her apartment for over an hour and a half. He

asked for and obtained her driver’s license and insurance information

and returned to his squad car to conduct a computer check of this

information. However, within approximately 20 seconds after he

returned to his car, and within three minutes of the initial stop, Officer

Kent arrived at the scene with his narcotics detection dog, Max.

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Officer Kent is a certified canine handler for the department’s

street crimes unit. He follows the format for dog sniffs taught by the

Illinois State Police canine unit and taught his fellow officers to follow

the same procedures. One such procedure is a set-up procedure,

which is done before the dog is taken around the vehicle. The set-up

procedure entails telling the driver to turn off the engine; turn the key

on auxiliary, which allows the blowers to work; turn the blowers on

high; roll up the windows; and close the doors. The purpose of the

set-up procedure is to force air inside the vehicle out through the

seams, where the dogs are trained to sniff.

Officer Kent asked Officer Tyler to set up defendant’s truck for

the dog sniff. Officer Tyler reapproached defendant, who was sitting

in her truck, and told her to roll up her windows and turn the blowers

on high. She complied, and Officer Kent conducted the dog sniff.

Officer Kent begins a dog sniff by walking the dog parallel to the

vehicle, beginning at the front and proceeding counterclockwise for

two passes. The dog signals an alert by turning perpendicular to the

vehicle. In addition, the dog’s breathing will change, and his sniffing

will intensify or become more rapid. Finally, the dog will put a paw

out, look at the handler, and start barking. Probable cause is obtained

through a dog’s positive alert.

Officer Tyler had returned to his squad car to run defendant’s

information but had not started writing the ticket when Officer Kent

informed him that Max had alerted on both doors of the truck. Officer

Tyler went back to defendant’s truck and told her and Miracle to exit

the truck. The officers obtained consent from both defendant and

Miracle to search their persons. Nothing was found.

A subsequent search of the truck and defendant’s purse, which

was inside, revealed a bag containing a digital scale with white powder

residue; several burnt pieces of tinfoil; and a pen casing, with a burnt

end and a powder substance on the inside. Defendant was arrested and

charged with unlawful possession of methamphetamine (720 ILCS

646/60(b)(1) (West 2006)).

Defendant filed a motion to suppress the evidence recovered

during the traffic stop. During argument on the motion, defense

counsel stated that before the hearing, he was unaware that a set-up

procedure was used to facilitate the dog sniff. Therefore, in his

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suppression motion, counsel had argued that Officer Tyler’s stop of

defendant was an illegal seizure because he had manipulated the

timing of the traffic stop by waiting for defendant to get into her truck

and drive off, instead of knocking on the door of her apartment and

issuing her a citation. Counsel had also focused on Officer Tyler’s

admission that he had intended to search the truck, hoping to find

more incriminating evidence.

The circuit court rejected defendant’s argument regarding Officer

Tyler’s motivation. However, the court found the set-up procedure

more interesting, noting that this was the first instance the court, the

prosecutor, or defense counsel had encountered such a procedure.

Because the court was curious as to whether the officers had the

authority to direct defendant to roll up her windows and turn the

blowers on high, it continued the matter to allow briefing on the issue.

When the hearing resumed, the parties informed the court that

they agreed that the United States Supreme Court’s decision in

Illinois v. Caballes, 543 U.S. 405 (2005), authorizes police to

conduct a dog sniff and that a dog sniff ordinarily is not a search. They

also agreed that there was no undue delay occasioned by the dog sniff,

and no one disputed Max’s qualification to perform the dog sniff.

The parties disagreed, however, as to whether the officers had the

authority to order defendant to comply with the set-up procedure

before conducting the dog sniff. Although the propriety of the set-up

procedure appeared to be a matter of first impression in Illinois, the

State cited to United States v. Ladeaux, 454 F.3d 1107 (10th Cir.

2006), as being factually analogous, to the extent that the defendant

challenged the validity of the use of a set-up procedure identical to

that employed here during a routine traffic stop. However, although

the circuit court and the parties discussed United States v. Ladeaux’s

focus on whether police mandated compliance with the

procedure–which would render it an additional seizure–they noted

that the Tenth Circuit had remanded the cause to the district court for

this determination and that the results had not yet been reported.

As an outgrowth of this discussion, the State conceded that

because Officer Tyler could not recall exactly how he phrased his

statement to roll up the windows and turn on the blowers, and given

that Officer Kent testified that he instructed his fellow officers not to

give motorists a choice of complying, the court could assume that

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Officer Tyler told defendant to do it. Nevertheless, the State

contended that this was not controlling, asserting that because the set-

up procedure is a minimally intrusive, “recognized method of

instruction,” it did not violate the fourth amendment.

The circuit court granted defendant’s motion to suppress. Initially,

the court found that the traffic stop was justified based on defendant’s

violation of the Illinois Vehicle Code. In addition, the court found that

the stop was not unreasonably extended by the calling of the canine

unit to the scene. The court stated that the issue was whether

defendant’s fourth amendment rights were violated by the officers

instructing her to roll up her windows and turn the blowers on high.

The circuit court held that the officers had no probable cause to search

the truck before Max alerted.

The circuit court found Illinois v. Caballes distinguishable

because, in that case, the dog sniff occurred on the exterior of the

vehicle. In the present case, although Max alerted from the outside of

defendant’s truck, he “had some help” in that the “air from the interior

was being forced out of the truck by the turned-up blowers,” and

“[t]he blowers were turned up by the defendant, but only upon the

demand of the officers.” The court concluded that by requiring

defendant to roll up the windows and turn the blowers on high, the

officers, in effect, moved and manipulated the air within the truck that

would not otherwise have been subject to Max’s plain smell. Although

the court recognized that Max was still outside defendant’s truck

when he alerted, the court found that, in effect, Max was placed inside

the truck by the officers. The circuit court concluded that directing

defendant to roll up her windows and turn the blowers on high turned

the dog sniff into an unreasonable search under the fourth amendment.

The State filed an interlocutory appeal. The State argued that the

circuit court’s decision should be reversed because the officers’ orders

to roll up the windows and turn the blowers on high did not change

the nature of the dog sniff to an unlawful search because (1) Max

remained outside the truck and (2) defendant had no legitimate

expectation of privacy in the potentially incriminating odors emanating

from her lawfully stopped truck.

Initially, the appellate court noted that the arguments on appeal

were limited to the set-up procedure employed by the officers before

the dog sniff and that no other portion of the stop was at issue. 384

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Ill. App. 3d at 1031. The appellate court stated the issue as “whether

the police order to defendant to roll up her windows and turn the

blower to high intruded upon a legitimate privacy interest and

constituted a search under the fourth amendment.” Id. at 1031-32.

A divided appellate court reversed the circuit court’s suppression

order. Id. at 1036. Upholding the validity of the set-up procedure, the

majority found it “to be a practical tool of police work that does not

interfere with the reasonable expectation of privacy in the interior of

defendant’s [truck].” Id. at 1035. The appellate court noted that,

under Illinois v. Caballes, a dog sniff conducted during a concededly

lawful traffic stop that reveals no information other than the location

of a substance that no one has the right to possess does not violate the

fourth amendment. Id. The appellate court concluded as follows:

“The set-up procedure is quick and nonintrusive; thus, it

does not impermissibly lengthen the duration of the stop. It

also ensures the canine remains outside the vehicle during the

sniff, as both the doors and windows are closed. This is a

practical technique that balances a defendant’s reasonable

expectation of privacy with the opportunity to allow law

enforcement to ferret out crime. No fourth-amendment

violation occurs when an officer lawfully investigating a traffic

violation orders the occupant to roll up the windows and turn

on the blowers to facilitate a dog sniff.” Id. at 1035-36.

The dissenting justice would have affirmed the circuit court’s

suppression order, concluding as follows:

“ ‘Plain view’ includes items that would be within the ‘plain

smell’ of a dog at the exterior of a vehicle. In the present case,

the officer impermissibly went beyond what was in plain view

and ordered the occupants of the vehicle to engage in testing.”

Id. at 1036 (Cook, J., dissenting).

This court allowed defendant’s petition for leave to appeal. Ill. S.

Ct. R. 315 (eff. Feb. 26, 2010).

ANALYSIS

The fourth amendment to the United States Constitution protects

the “right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.” U.S. Const.,

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amend. IV; accord Ill. Const. 1970, art. I, §6. 1 Thus, the guarantees

of the fourth amendment attach where a “search” or “seizure” takes

place. “A ‘search’ occurs when an expectation of privacy that society

is prepared to consider reasonable is infringed.” United States v.

Jacobsen, 466 U.S. 109, 113 (1984). In contrast, a “seizure” occurs

when “the police conduct would have communicated to a reasonable

person that the person was not free to decline the officers’ requests or

otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429,

439 (1991).

A circuit court’s ruling on a motion to suppress evidence is

reviewed under the two-part test adopted by the Supreme Court in

Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Harris,

228 Ill. 2d 222, 230 (2008). The circuit court’s factual findings may

be rejected only if they are against the manifest weight of the

evidence. Id. However, the reviewing court may assess the established

facts in relation to the issues presented and may draw its own

conclusions in deciding what relief, if any, should be granted. Id.

Accordingly, the circuit court’s ultimate ruling as to whether

suppression is warranted is reviewed de novo. Id.

The issue presented in this appeal is narrow. There is no dispute

regarding the circuit court’s factual finding that the initial traffic stop

was justified by Officer Tyler’s observation of defendant’s violation

of the Illinois Vehicle Code (625 ILCS 5/11–1303(a)(1)(b) (West

2006) (no person shall stop, stand, or park a vehicle on a sidewalk)),

and that the seizure, therefore, was reasonable. See Whren v. United

States, 517 U.S. 806, 810 (1996) (“[T]he decision to stop an

automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred.”).

In addition, it is undisputed that the officers had the authority to

conduct an exterior dog sniff of defendant’s truck during the traffic

1

Defendant limits her argument to the fourth amendment to the United

States Constitution (U.S. Const., amend. IV) and does not contend that the

search and seizure provision of article I, section 6, of the Illinois Constitution

(Ill. Const. 1970, art. I, §6) provides broader protection than the fourth

amendment. Accordingly, we confine our analysis to defendant’s fourth

amendment claim.

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stop and that the dog sniff itself was not a search subject to the fourth

amendment. See Illinois v. Caballes, 543 U.S. at 408-10 (holding that

a suspicionless dog sniff conducted during a lawful traffic stop that

reveals no information other than the location of a substance no

individual has any right to possess is not a search subject to the fourth

amendment).

Finally, there is no dispute that Officer Tyler ordered defendant to

comply with the set-up procedure. As noted, the State conceded in the

circuit court that Officer Tyler ordered defendant to perform the

procedure and did not give her the option of refusing to comply.

The only issue on appeal is whether the officers’ actions in

ordering defendant to roll up her windows and turn the blowers on

high before conducting the dog sniff of the truck’s exterior constituted

an unreasonable search under the fourth amendment. This seems to be

an issue of first impression nationwide because the parties have not

cited, nor has our research revealed, any decisions that have addressed

the issue.

The dissent would like us to recharacterize the issue as whether

the officers’ actions in ordering defendant to roll up her windows and

turn the blowers on high before conducting the dog sniff of the truck’s

exterior constituted an unreasonable seizure under the fourth

amendment. We decline to do so because it is clear that, in her briefs

and oral arguments before this court, defendant argues that the

officers’ actions in ordering her to roll up her windows and turn the

blowers on high before conducting the dog sniff of the truck’s exterior

constituted an unreasonable search, not an unreasonable seizure.

For example, in the “General Principles” portion of her brief,

defendant includes exclusively fourth amendment search principles.

She explains that “[a] search for purposes of the [f]ourth [a]mendment

occurs when government officials violate an individual’s legitimate

expectation of privacy.” Appellant’s Br. 18. She sets forth general

“expectation of privacy” principles and explains what level of privacy

can reasonably be expected in relation to an automobile. Appellant’s

Br. 18-21. She states that “[a]t issue here is whether the police ‘set

up’ procedure created an unreasonable search under the fourth

amendment.” (Emphasis added.) Appellant’s Br. 20-21. Notably, she

does not explain when a “seizure” occurs for purposes of the fourth

amendment.

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Similarly, the “Analysis” section of her brief is devoted exclusively

to whether the set-up procedure resulted in an unconstitutional search

of the interior of her truck. She devotes her entire discussion to fourth

amendment search cases and to arguing that (1) she had a reasonable

expectation of privacy in the interior of her truck and that (2) the set-

up procedure therefore resulted in an unconstitutional search of her

truck. Even her brief discussion of United States v. Ladeaux leads her

to conclude that “[t]he resulting sniff thus became a search subject to

the fourth amendment.” (Emphasis added.) Appellant’s Br. 22. She

did not argue that the officer’s order to roll up the windows and turn

the blowers on high amounted to a seizure for fourth amendment

purposes–that is, that the order communicated to her that she was not

free to decline the request or otherwise terminate the encounter. See

Bostick, 501 U.S. at 439.

Although she asserts in the very last paragraph of the “Analysis”

section of her brief that “Officer Tyler impermissibly acted by turning

the traffic stop into an illegal seizure by ordering [her] to place the

vehicle on auxiliary power, to turn the vents to high, and to keep all

doors and windows closed” (appellant’s br. 27), she offers no support

for that assertion, either factually or legally. In fact, the only authority

that she cites in support of that assertion is the United States Supreme

Court’s pronouncement in Horton v. California, 496 U.S. 128 (1990),

that “a ‘search’ compromises an individual interest in privacy.”

(Emphasis added.) Appellant’s Br. 27. Even here, then, she is making

a search argument. Reading the paragraph as a whole, and given that

her sole citation is to a fourth amendment search principle, we assume

that what she is attempting to argue is that, as a result of the unlawful

search, the otherwise lawful seizure was transformed into an unlawful

seizure. This is very different from the seizure argument addressed in

the dissent.

The final section of the State’s brief is titled “Defendant Makes No

Argument That The Set-Up Procedure Was A Seizure.” Appellee’s

Br. 26. This section is a direct response to the isolated sentence

described above, and the State obviously included it to avoid any

possibility that this court would use that sentence as a basis for

treating this as a seizure case rather than a search case. Notably, in her

reply brief, defendant does not contest or even respond to this

argument, offering instead only the same “expectation of privacy” and

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“search” arguments that she offered in her opening brief. While not

binding, such silence certainly underscores what is otherwise

apparent–that defendant is not arguing that the orders relating to the

set-up procedure amounted to an unlawful seizure.

Finally, at oral argument before this court, defense counsel made

it abundantly clear that defendant’s argument is that the set-up

procedure was an unlawful search, not an unlawful seizure.

Accordingly, we confine our analysis to defendant's search argument and

save the seizure analysis for a case where the issue is properly before us and

has been fully briefed and argued.

As stated previously, “[a] ‘search’ occurs when an expectation of

privacy that society is prepared to consider reasonable is infringed.”

Jacobsen, 466 U.S. at 113. Consequently, “[o]fficial conduct that

does not ‘compromise any legitimate interest in privacy’ is not a

search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408

(quoting Jacobsen, 466 U.S. at 123).

The Supreme Court has held that “any interest in possessing

contraband cannot be deemed ‘legitimate,’ and thus, governmental

conduct that only reveals the possession of contraband ‘compromises

no legitimate privacy interest.’ ” Id. (quoting Jacobsen, 466 U.S. at

123). The Court explained that “the expectation ‘that certain facts will

not come to the attention of the authorities’ is not the same as an

interest in ‘privacy that society is prepared to consider reasonable.’ ”

Id. at 408-09 (quoting Jacobsen, 466 U.S. at 122). The Court noted

that, in United States v. Place, 462 U.S. 696 (1983), it “treated a

canine sniff by a well-trained narcotics-detection dog as ‘sui generis’

because it ‘discloses only the presence or absence of narcotics, a

contraband item.’ ” Caballes, 543 U.S. at 409 (quoting Place, 462

U.S. at 707).

In Illinois v. Caballes, the Court held that “the use of a well-

trained narcotics-detection dog–one that ‘does not expose non-

contraband items that otherwise would remain hidden from public

view,’ [citation]–during a lawful traffic stop generally does not

implicate legitimate privacy interests.” Id. The Court explained:

“In this case, the dog sniff was performed on the exterior of

respondent’s car while he was lawfully seized for a traffic

violation. Any intrusion on respondent’s privacy expectations

does not rise to the level of a constitutionally cognizable

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infringement.

*** A dog sniff conducted during a concededly lawful

traffic stop that reveals no information other than the location

of a substance that no individual has any right to possess does

not violate the Fourth Amendment.” Caballes, 543 U.S. at

409-10.

Similarly, in the present case, the dog sniff was conducted on the

exterior of defendant’s truck while she was lawfully seized for a traffic

violation. Even though the officers ordered her to roll up her windows

and turn the blowers on high before they conducted the dog sniff, any

intrusion on her “privacy expectations does not rise to the level of a

constitutionally cognizable infringement.” See id. at 409. The dog

sniff revealed “no information other than the location of a substance

that no individual has any right to possess.” See id. at 410.

Accordingly, under Illinois v. Caballes, the dog sniff in the present

case was not a search subject to the fourth amendment because it did

not “ ‘compromise any legitimate interest in privacy.’ ” See id. at 408

(quoting Jacobsen, 466 U.S. at 123).

The set-up procedure at issue in this case is analogous to the

luggage “prepping” procedure approved by the Fifth Circuit in United

States v. Viera, 644 F.2d 509 (5th Cir. 1981). In United States v.

Viera, Drug Enforcement Administration agents “prepped” the

defendants’ suitcases before a dog sniff by pressing them lightly with

the hands and slowly circulating the air, the purpose of which was to

procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth

Circuit rejected the defendants’ argument that the “prepping”

procedure was a search in violation of the fourth amendment, holding

that a dog sniff is not a search within the meaning of the fourth

amendment and that a light press of the hands along the outside of the

suitcases was not sufficiently intrusive to require a different result. Id.

Similarly, in the present case, a dog sniff is not a search within the

meaning of the fourth amendment, and ordering defendant to roll up

her windows and turn the blowers on high before conducting the dog

sniff was not sufficiently intrusive to require a different result. See id.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court is

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affirmed.

Affirmed.

JUSTICE FREEMAN, dissenting:

This appeal squarely presents the question of whether a police

officer’s order to a driver, during a routine traffic stop, to perform a

“set-up” procedure to facilitate a canine sniff for narcotics, is an

unreasonable seizure which violates the fourth amendment. It is my

view that it is. Despite the fact that this precise issue was litigated by

the parties in the circuit court, and even though the majority’s own

recitation of the factual background and procedural history of this

cause repeatedly references seizure principles, my colleagues decline

to analyze this appeal in the context of whether defendant was

subjected to an unreasonable seizure. Instead, they review the

propriety of the police action by inquiring whether the “ordering” of

defendant to perform the set-up procedure is “an unreasonable

search.” Slip op. at 8. Using this inappropriate analytical framework,

the majority holds that there is no constitutional violation. As I agree

with neither the majority’s analysis nor the result, I respectfully

dissent.

I. General Fourth Amendment Principles

The general principles of analysis of claims brought under the

fourth amendment are familiar. The fourth amendment to the United

States Constitution guards 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; accord Ill. Const.

1970, art. I, §6. Accordingly, the protections of the fourth amendment

attach where a “search” or “seizure” occurs. A “search” takes place

when “an expectation of privacy that society is prepared to consider

reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113

(1984). Because a search affects privacy interests, a search which is

reasonable at its inception may become unreasonable “by virtue of its

intolerable intensity and scope.” Terry v. Ohio, 392 U.S. 1, 17-18

(1968).

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In contrast, a “seizure” occurs when the conduct of police “would

have communicated to a reasonable person that the person was not

free to decline the officers’ requests or otherwise terminate the

encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991); People v.

Luedemann, 222 Ill. 2d 530, 550 (2006). More specifically, a person

may be seized for purposes of the fourth amendment where a law

enforcement officer makes a show of authority and there is submission

to that show of authority (Brendlin v. California, 551 U.S. 249, 254

(2007)), including where an officer orders a motorist to comply with

instructions, such as to open a car door or roll down a window.

Luedemann, 222 Ill. 2d at 550. It is well settled that a traffic stop

entails a seizure of the driver. Brendlin, 551 U.S. at 255.

Because seizures affect personal liberty interests, including the

freedom of movement and the possession of property (see Delaware

v. Prouse, 440 U.S. 648, 657 (1979)), an investigative detention must

last “no longer than is necessary to effectuate the purpose of the

stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). In addition, the

investigative means used must be “the least intrusive means reasonably

available to verify or dispel the officer’s suspicion.” Id.

Once it is determined that a search or seizure has taken place, in

order to pass constitutional muster, it must be “reasonable.” Indeed,

the touchstone of fourth amendment analysis “is always ‘the

reasonableness in all the circumstances of the particular governmental

invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms,

434 U.S. 106, 109 (1977) (quoting Terry, 392 U.S. at 19).

“Reasonableness” depends upon “a balance between the public interest

and the individual’s right to personal security free from arbitrary

interference by law officers.” United States v. Brignoni-Ponce, 422

U.S. 873, 878 (1975).

When, as here, a circuit court grants a motion to suppress

evidence based upon a violation of the fourth amendment, that ruling

is reviewed under the two-part test adopted by the Supreme Court in

Ornelas v. United States, 517 U.S. 690, 699 (1996). People v. Harris,

228 Ill. 2d 222, 230 (2008). The circuit court’s factual findings are

upheld unless they are against the manifest weight of the evidence.

People v. Sorenson, 196 Ill. 2d 425, 431 (2001). The reviewing court

then assesses the established facts in relation to the issues presented

and may draw its own conclusions in deciding what relief, if any,

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should be granted. Harris, 228 Ill. 2d at 230. Accordingly, this court

reviews de novo the ultimate legal question of whether suppression is

warranted. Luedemann, 222 Ill. 2d at 542-43.

II. Factual Background

As stated, in determining whether an individual has been “seized”

for fourth amendment purposes, the inquiry pivots on whether the

conduct of police would have communicated to a reasonable person

that she was not free to decline the officers’ requests or otherwise

terminate the encounter. Also, as stated, a person’s submission to a

show of authority indicates that the person has been seized. These

principles of seizure analysis are repeatedly referenced in the

“Background” section of the majority opinion, wherein my colleagues

recount the course of these proceedings in the circuit court. The

transcript of the hearing on defendant’s motion to suppress reveals

that the parties and the circuit court grappled with the issue of

whether the officer’s order to defendant to engage in the set-up

procedure during the traffic stop constituted an additional seizure,

and, if so, whether that seizure was reasonable.

For example, the majority notes that it was during the suppression

hearing that the parties and the court first became aware of the use of

the set-up procedure by police. According to the majority, because the

circuit court found the procedure “interesting” (slip op. at 4), and

because it was “curious as to whether the officers had the authority

to direct defendant to roll up her windows and turn the blowers on

high” (emphasis added) (slip op. at 4), it continued the matter to allow

briefing on this specific issue. I note that the majority itself indicates

that the circuit court’s “interest” and “curios[ity]” was centered upon

whether it was proper for the officer to order defendant to set-up the

vehicle to facilitate the dog sniff, as well as upon the resulting effect

of defendant’s submission to this show of authority.

The majority further recounts that when the hearing resumed, the

parties disagreed on the critical issue of “whether the officers had the

authority to order defendant to comply with the set-up procedure

before conducting the dog sniff.” (Emphasis added.) Slip op. at 4.

Again, I note that this clearly shows that the question debated in the

circuit court involved seizure analysis, as it concerned the officer’s

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show of authority against defendant by commanding her to comply

with the set-up procedure, the submission of defendant to this show

of authority, and whether this show of authority constituted an

additional seizure which was reasonable.

The majority further recounts that although the parties and the

circuit court agreed that the question of whether the set-up procedure

comported with the fourth amendment appeared to be a matter of first

impression in Illinois, the State relied upon a ruling of the federal

Court of Appeals for the Tenth Circuit, United States v. Ladeaux, 454

F.3d 1107 (10th Cir. 2006), as being factually analogous. Slip op. at

4. The majority relates that “the circuit court and the parties discussed

United States v. Ladeaux’s focus on whether police mandated

compliance with the procedure–which would render it an additional

seizure.” (Emphasis added.) Slip op. at 4. Thus, the majority itself tells

us that the parties, as well as the circuit court, applied Ladeaux in the

context of whether the officer’s order to defendant to perform the set-

up procedure amounted to an additional seizure, and, if so, whether

it was reasonable. The record reveals–and the majority

acknowledges–that as a direct outgrowth of this discussion of seizure

principles, the State conceded before the circuit court that Officer

Tyler ordered defendant to comply with the set-up procedure, and

that she had no option of refusal. Slip op. at 4.

The majority further observes that, in granting defendant’s motion

to suppress, “[t]he [circuit] court stated that the issue was whether

defendant’s fourth amendment rights were violated by the officers

instructing her to close the truck’s windows and doors and turn the

blowers on high.” (Emphasis added.) Slip op. at 5. In agreeing with

defendant that her fourth amendment rights were violated, the circuit

court held that “the directing of the defendant to close the truck’s

windows and doors and to turn the blower on high” was unreasonable.

(Emphasis added.)

A divided appellate court reversed the circuit court’s suppression

order. 384 Ill. App. 3d 1028. Although the majority appeared to treat

this as a “search” rather than a “seizure” case, I note that the majority

used seizure language in holding that “[n]o fourth-amendment

violation occurs when an officer lawfully investigating a traffic

violation orders the occupant to roll up the windows and turn on the

blowers to facilitate a dog sniff.” (Emphasis added.) 384 Ill. App. 3d

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at 1036. In addition, seizure analysis was also used by the dissenting

justice, who asserted that “[a] police officer who has stopped a vehicle

for a traffic violation does not have unbridled authority to order and

conduct chemical tests,” and that under these facts it was

impermissible for the officer to “order[ ] the occupants of the vehicle

to engage in testing.” (Emphases added.) 384 Ill. App. 3d at 1036

(Cook, J., dissenting).

III. The Majority’s Analysis

In the instant appeal, three major points are undisputed. First,

there is no dispute regarding the circuit court’s factual finding that the

initial traffic stop was justified by Officer Tyler’s observation of

defendant’s violation of the Illinois Vehicle Code (625 ILCS

5/11–1303(a)(1)(b) (West 2006) (no person shall stop, stand or park

a vehicle on the sidewalk)), and that this initial seizure, therefore, was

reasonable. As stated, it is well settled that the temporary detention of

individuals during the stop of an automobile by the police, even if only

for a brief period and for a limited purpose, constitutes a “seizure” of

“persons” within the meaning of the fourth amendment. Prouse, 440

U.S. at 653. To comport with the fourth amendment, this seizure must

be “reasonable” under the circumstances. Generally, the decision to

stop an automobile is reasonable where the police have probable cause

to believe that a traffic violation has occurred. Whren v. United States,

517 U.S. 806, 810 (1996).2

Second, it is also undisputed that the Quincy officers had the

authority to conduct an exterior canine sniff of defendant’s vehicle

during the traffic stop and that the sniff itself did not violate the fourth

amendment.3 In Illinois v. Caballes, 543 U.S. 405 (2005), the

2

But see United States v. Copeland, 321 F.3d 582, 594 (6th Cir. 2003)

(parking violation was a violation of the traffic laws and thus justified a stop

on probable cause; however, “where an observed parking violation is not

ongoing, an officer is required to effect a stop based upon this conduct within

a reasonable period of time,” otherwise “the existence of probable cause is

said to have become stale”).

3

I note that it is also undisputed that there was no undue delay occasioned

by the sniff, and that the canine Max was qualified to perform the sniff.

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Supreme Court held that a suspicionless dog sniff conducted during

a routine traffic stop does not implicate rights protected by the fourth

amendment. Id. at 409; see also People v. Bew, 228 Ill. 2d 122, 130

(2008).

Finally, there is no dispute that Officer Tyler demanded that

defendant comply with the set-up procedure. As noted, the State

conceded in the circuit court that Officer Tyler ordered defendant to

perform the procedure, and that she had no option to refuse

compliance.

What is in dispute in this case–as the majority’s recitation of the

factual background amply demonstrates–is whether the officer’s order

to defendant to comply with the set-up procedure during the traffic

stop constituted an additional seizure, and, if so, whether that seizure

was reasonable. Nevertheless, despite its repeated recitation that the

proceedings in the circuit court revolved around seizure principles, the

majority frames the issue on appeal as whether the officers’ order to

defendant to perform the set-up procedure constituted an

unreasonable search under the fourth amendment. Slip op. at 8. The

majority explains that it confines its analysis to search principles

because defendant limits her argument to the issue of whether the set-

up procedure used in this case constituted an unreasonable search

under the fourth amendment and does not argue that the set-up

procedure constituted an unreasonable seizure. Slip op. at 8.

In her brief to this court, defendant did argue that the officer’s

command to engage in the set-up procedure was an unreasonable

seizure, maintaining that “[i]n the instant case, Officer Tyler

impermissibly acted by turning the traffic stop into an illegal seizure

by ordering Ms. Bartelt to place the vehicle on auxiliary power, to

turn the vents to high, and to keep all doors and windows closed.”

(Emphasis added.) Although this precise argument was not fully

developed, the fact remains–as repeatedly acknowledged by the

majority in the “Background” section of its opinion–that seizure

concepts, principles and arguments were raised and considered in the

circuit court. As the issue presented in this appeal is novel, it is

therefore not surprising that both parties–as well as the courts–have

struggled in defining the precise contours of the proper arguments and

analysis. The fact that this appeal involves a fourth amendment

question has added to this conundrum, as that provision is “more

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practical than theoretical,” and “[b]oth the language of the

Amendment, which prohibits ‘unreasonable searches and seizures,’

and the decisions of the [United States Supreme] Court interpreting

it are purposely imprecise.” United States v. Johnson, 599 F.3d 339,

342 (4th Cir. 2010). Indeed, the Court’s fourth amendment decisions

“reflect a preference for case-by-case analysis, informed judgment, and

an examination of the entire factual picture over any ‘neat set of legal

rules.’ ” Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)).

It is well settled that this court may affirm the judgment of the

circuit court on any basis contained within the record. People v.

Horrell, 235 Ill. 2d 235, 241 (2009). Because the record

unquestionably establishes that seizure principles were squarely raised

and considered in the circuit court, and the majority’s own opinion

makes it clear that the issue presented by this appeal is whether the

order to defendant to perform the set-up procedure constituted an

additional seizure which was reasonable, I believe that the seizure

question is properly before us and that the resolution of this appeal

rests upon application of seizure principles. Although the majority

decides to “save the seizure analysis” for another day (slip op. at 10),

I question why this defendant is penalized and the violation of her

rights is unredressed in favor of deferring our examination of an issue

which is squarely presented by this appeal.

It is precisely because the majority frames the issue as whether the

officer’s order to defendant to perform the set-up procedure

constituted an unreasonable search–rather than seizure–that the

majority can therefore assert that “[t]his seems to be an issue of first

impression nationwide because the parties have not cited, nor has our

research revealed, any decisions that have addressed the issue.” Slip

op. at 8.

As noted, however, the identical factual situation has been

addressed in a case which was cited by the State in the circuit court,

extensively discussed during those proceedings, and also cited and

debated by the parties in their briefs to this court. In United States v.

Ladeaux, 454 F.3d 1107 (10th Cir. 2006), the use of a similar set-up

procedure was challenged by the defendant as violative of the fourth

amendment. Although the procedural posture of Ladeaux prevented

that court from reaching the merits of the defendant’s claim, that

opinion’s analysis is instructive. The majority, however, ignores this

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case–which is directly on point–presumably because it invokes seizure,

rather than search, principles.

In Ladeaux, the defendant was a passenger in a car stopped for

traffic violations. Because the officer believed the driver was unduly

nervous, he requested a narcotics detection dog be brought to the

scene based upon his “hunch.” When the dog arrived, the

officer–similar to the matter at bar–instructed that the car’s windows

be rolled up and the vents turned on to force the air out of the vehicle

prior to the sniff. After the canine gave a positive alert, the vehicle

was searched and narcotics were discovered. The defendant was

arrested. Ladeaux, 454 F.3d at 1109.

The defendant argued, inter alia, that the officers’ instruction to

roll up the windows and turn on the vents impermissibly expanded the

scope of the initial traffic stop, as the officer had no valid basis to

order performance of these actions. However, because the district

court failed to consider whether the evidence obtained during the stop

should be suppressed based upon the officer’s conduct, the Tenth

Circuit remanded the cause to allow this specific determination.

Ladeaux, 454 F.3d at 1110. The court provided the following

instructions on remand, requiring the district court to determine

whether the officer’s actions constituted an unreasonable seizure

because he issued a mandatory command to perform the procedure

rather than merely request compliance:

“[T]he district court must initially determine whether there

was a violation of Ladeaux’s Fourth Amendment rights. ***

*** [T]he character of [the officer’s] request is unclear.

*** [T]he district court must consider whether the request

required compliance or merely solicited cooperation. If [the

officer] requested the windows be closed and the vents opened

in such a way that an objective person would have felt ‘free to

decline the officers’ request’–even in the absence of

reasonable suspicion that the vehicle contained narcotics–we

doubt that the Fourth Amendment would be implicated at all.”

Ladeaux, 454 F.3d at 1111-12.

Shortly after the Tenth Circuit remanded the cause, however, the

district court granted Ladeaux’s motion to withdraw his motion to

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suppress.4 Although Ladeaux’s withdrawal of his suppression motion

ended the cause before the district court had an opportunity to

determine the validity of the officer’s actions, this does not lessen the

guidance offered by the Tenth Circuit’s opinion.

Thus, contrary to the majority’s statement that “the parties have

not cited *** any decisions that have addressed” the issue presented

by this appeal, Ladeaux addressed the precise factual scenario

presented in the matter before us: whether a motorist is unreasonably

seized under the fourth amendment as a result of performing the “set-

up” procedure as part of a routine traffic stop. I agree with Ladeaux

that for purposes of determining whether the actions of police violated

the fourth amendment, the pivotal inquiry is whether the officer

demanded that the defendant comply with the set-up procedure or

merely requested compliance so that “ ‘a reasonable person would feel

free to decline the officers’ requests or otherwise terminate the

encounter.’ ” Luedemann, 222 Ill. 2d at 550 (quoting Bostick, 501

U.S. at 436). I note that this inquiry was also of concern to the circuit

court, which specifically questioned whether police, during a routine

stop, have the authority to demand that a motorist perform the

procedure.

Applying this analytical framework to the instant appeal, I

observe, as an initial matter, that after stopping defendant based upon

her violation of the Vehicle Code, Officer Tyler began the encounter

by requesting defendant’s identification and proof of insurance. It is

well settled that it is proper for an officer to request identification

during a traffic stop, as such request is “facially innocuous,” neither

suggesting official interrogation nor increasing the confrontational

nature of the encounter. Harris, 228 Ill. 2d at 248-49; see also

Luedemann, 222 Ill. 2d at 549. In addition, I note that an officer may

ask to see a driver’s license, proof of insurance and vehicle

registration. People v. Bradley, 292 Ill. App. 3d 208, 211 (1997). We

have also held that a warrant check of all occupants of a lawfully

4

I note that in its brief to this court, the State attaches Ladeaux’s motion,

his supporting affidavit, and the court order. It appears that Ladeaux was

advised by counsel that it was unlikely that he had standing to challenge the

procedure because, as a passenger, he was not the person who took action in

response to the instructions of the officer.

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stopped vehicle does not violate the fourth amendment, as a warrant

is a matter of public record in which an individual has no reasonable

expectation of privacy. Harris, 228 Ill. 2d at 237.

I further note that the Supreme Court has held repeatedly that

mere questioning of an already-seized individual does not constitute

an additional seizure within the meaning of the fourth amendment, as

long as there is no compulsion to answer, i.e., “as long as the police

do not convey a message that compliance with their requests is

required.” Florida v. Bostick, 501 U.S. 429, 434-35 (1991); see also

Muehler v. Mena, 544 U.S. 93, 101 (2005) (even though officers had

no reasonable suspicion, they could ask suspect her name, date and

place of birth, and immigration status); Hiibel v. Sixth Judicial

District Court, 542 U.S. 177, 186 (2004) (“[Q]uestions concerning a

suspect’s identity are a routine and accepted part of many Terry

stops.”); United States v. Drayton, 536 U.S. 194, 200 (2002) (a police

officer does not violate the fourth amendment merely by approaching

a person in public to ask questions if the person is willing to listen).

Finally, as noted, there also is no question that under Caballes, the

officers could validly conduct a suspicionless, unaided canine sniff of

the exterior of defendant’s vehicle during the traffic stop. It is upon

this uncontested point in Caballes, however, that the majority focuses

its analysis, principally owing to the fact that the majority has forced

a seizure case into a “search” framework, and Caballes is a search

case. Thus, the majority proceeds as if the performance of the dog

sniff is a contested issue, which it is not. To this end, the majority

notes that, just as in Caballes, the dog sniff here was performed on

the outside of the vehicle, and “[e]ven though the officers ordered her

to roll up her windows and turn the blowers on high,” any intrusion

into defendant’s privacy “does not rise to the level of a

constitutionally cognizable infringement.” Slip op. at 11. The majority

thus arrives at the unremarkable, uncontested and well-settled

conclusion that under Caballes, “the dog sniff in the present case was

not a search subject to the fourth amendment because it did not

‘compromise any legitimate interest in privacy.’ ” Slip op. at 11. The

majority thus answers a question not presented by this appeal, and

declines to address the question squarely raised in this case.

In fact, the analysis conducted by the majority was flatly rejected

in Ladeaux. The Ladeaux opinion noted that the government had

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urged that court to hold that Caballes compelled the conclusion that

under the facts presented, no fourth amendment violation occurred.

The court, however, found any argument premised upon Caballes

inapposite, explaining: “The salient difference between Caballes and

this case *** is that there was no order in Caballes comparable to [the

officer’s] request directed at the occupants of the vehicle in this case.

Ladeaux objects not to the dog-sniff, but rather to the request;

Caballes simply does not reach this question.” Ladeaux, 454 F.3d at

1110 n.3.

I agree with Ladeaux. Under the facts presented in both Ladeaux

and in this appeal, the police went further than the officers in

Caballes: they ordered defendant to assist them in facilitating the

canine sniff by demanding that she turn the vehicle to auxiliary power,

close the windows and place the blowers on high to force the air from

the inside of her truck to the outside of the vehicle. There also is no

question that the officers demanded defendant’s compliance in the

midst of what was an already coercive environment, wherein

defendant was confronted by two officers and a narcotics canine, and

was seated in a vehicle which was parked in front of two police squad

cars arranged in a “T” formation. Because the officers’ actions

subsequent to the initial stop unquestionably “communicated to a

reasonable person that [she] was not free to decline the officers’

requests or otherwise terminate the encounter” (Bostick, 501 U.S. at

439), I conclude that the officer’s order to defendant to comply with

the set-up procedure constituted an additional seizure. Accordingly,

the reasonableness of this additional seizure must be assessed.

As stated, the reasonableness of a particular law enforcement

practice is judged by balancing its promotion of legitimate

governmental interests against its intrusion on fourth amendment

interests. Prouse, 440 U.S. at 654 (and cases cited therein); Mimms,

434 U.S. at 109 (quoting Brignoni-Ponce, 422 U.S. at 878).

Examination is first made of that side of the balance which supports

the interests of the State in ordering motorists to perform the set-up

procedure as a matter of course during all traffic stops. The State has

proffered nothing in support of police making this demand of all

drivers, including whether this procedure promotes legitimate law

enforcement purposes, and to what extent–if any–it enhances the

ability of the canine to find contraband that would not have been

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discoverable through a routine, unaided exterior canine sniff. Further,

when the State was questioned during oral argument regarding the

silence of the record on this point, counsel candidly admitted that “we

do not know the value of the procedure.” Based upon these facts, the

State has offered no justification to support police demanding that

motorists perform the set-up procedure during routine traffic stops.

Because there is nothing to balance against the intrusion to

defendant’s personal liberty interests and her right to be free from

arbitrary interference by police, it necessarily follows that the set-up

procedure is unreasonable and constitutionally infirm.

Indeed, it is based upon this significant balance in favor of

defendant that the State’s analogy between the order to defendant to

perform the set-up procedure and an officer’s order to occupants to

exit the vehicle during a traffic stop fails. In its brief to this court, the

State draws this analogy by relying upon the decisions of the United

States Supreme Court in Maryland v. Wilson, 519 U.S. 408, 414-15

(1997), and Mimms, 434 U.S. at 111, which hold that the fourth

amendment is not violated where police order occupants out of their

vehicles as a matter of course during traffic stops. Notably, both

Mimms and Wilson begin their analysis with the premise that an order

by police to a motorist to exit the car is an additional intrusion into his

or her personal liberty–in other words, a seizure. Mimms, 434 U.S. at

111; Wilson, 519 U.S. at 414-15. Thus, the critical question in these

cases was whether the additional seizure was reasonable under the

fourth amendment. In Mimms, the Supreme Court’s holding that the

additional seizure was reasonable was animated by the significant

balance of interests in favor of the State. Unlike in the matter before

us–where the State has proffered no evidence to support the police

order to engage in the set-up procedure–the Court in Mimms held that

the State’s justification for the order to exit the vehicle was to ensure

officer safety, an interest “both legitimate and weighty.” Mimms, 434

U.S. at 110. When balanced against the public’s substantial interest in

officer safety, the additional intrusion into the driver’s personal liberty

occasioned by such order was found to be “de minimis.” Mimms, 434

U.S. at 111; accord Wilson, 519 U.S. at 413-15 (extending Mimms to

uphold validity of police order to passengers to exit vehicle during

traffic stop, as “danger to an officer from a traffic stop is likely to be

greater when there are passengers in addition to the driver in the

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stopped car,” and “the additional intrusion on the passenger is

minimal”).

As explained, because it is my view that this appeal should be

analyzed using seizure principles, I disagree with the majority’s use of

search analysis. However, even if I were to agree that it is appropriate

to use search principles, I would nevertheless be unable to join the

majority’s opinion.

In the penultimate paragraph of the majority’s analysis, my

colleagues analogize the set-up procedure used in this case to a

luggage “prepping” procedure approved by the federal Court of

Appeals for the Fifth Circuit in United States v. Viera, 644 F.2d 509

(5th Cir. 1981). There, a bus driver became suspicious when two

passengers boarded his bus with suitcases which were unusually heavy

and in which he observed bags of pills and white powder. The driver

alerted Drug Enforcement Administration agents, who conducted a

dog sniff of the suitcases after “prepping” the bags by “press[ing]

lightly with [the] hands and slowly circulat[ing] the air a little bit,”

with the goal of “procur[ing] a scent from the bag.” Id. at 510. The

Fifth Circuit held that the district court had properly denied the

defendants’ suppression motion, holding that this prepping procedure

was not sufficiently intrusive to constitute a violation of the fourth

amendment. Id.

I note that apart from Caballes–which was never contested by the

parties in this appeal–Viera is the only case cited by the majority in

support of its holding that defendant was not subject to a search, and,

therefore, that the fourth amendment was not implicated in this case.

The facts in Viera, however, are significantly distinguishable from the

instant appeal: there, the “prepping” prior to the dog sniff was done

by government agents; here, defendant was ordered to perform the

set-up procedure prior to the dog sniff. In addition, defendant

contends that the continued viability of Viera is placed in question by

the subsequent decision of the United States Supreme Court in Bond

v. United States, 529 U.S. 334 (2000). In Bond, the Court held that

a bus passenger had an expectation of privacy in a bag placed in an

overhead bin, and that a police officer’s physical manipulation of the

bag violated that privacy expectation and constituted an illegal search.

Id. at 338-39. The majority addresses neither Bond nor defendant’s

contention.

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In sum, under the facts presented, it is my view that the order to

defendant to engage in the set-up procedure was an additional seizure

which was unreasonable under the fourth amendment.

For the foregoing reasons, I respectfully dissent from the majority

opinion.

JUSTICES BURKE and THEIS join in this dissent.

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