People v. Easley

JUSTICE HOLDRIDGE, dissenting:

I respectfully dissent. I would find that Officer Oleson did not have probable cause to search defendants’ vehicle subsequent to the traffic stop and I would reverse the conviction on that basis.

I agree that under Ornelas v. United States, 517 U.S. 690 , 134 L. Ed. 2d 911 , 116 S. Ct. 1657 (1996), a de novo standard of review should be applied to issues involving reasonable suspicion to stop a vehicle and probable cause to conduct a search. See People v. Kidd, 175 Ill. 2d 1 (1996). However, even under a manifest weight of the evidence standard of review, I would hold that probable cause to search the vehicle was lacking.

Warrantless searches are presumptively unreasonable unless certain limited exceptions apply. People v. Rinaldo, 80 Ill. App. 3d 433, 434 (1980). Prior to the search of a car, the police must obtain a search warrant unless the circumstances fall within an exception to the warrant requirement such as probable cause. United States v. Ross, 456 U.S. 798, 809 , 72 L. Ed. 2d 572, 583-84 , 102 S. Ct. 2157, 2164-65 (1982).

To establish probable cause to search an automobile, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. People v. Smith, 95 Ill. 2d 412, 419 (1983). "Stopping a vehicle for a minor traffic violation does not, by itself, justify a search of the detainee’s person or vehicle. The officer must reasonably believe that he is confronting a situation more serious than a routine traffic violation.” People v. Penny, 188 Ill. App. 3d 499, 502 (1989).

In this matter, I believe that a review of the record shows that Officer Oleson lacked probable cause to detain the vehicle after issuing the verbal warning, checking the driver’s license and running the warrant check. The facts that one defendant had a business card with a marijuana leaf embossed on it and that the defendants told the officer that they were in route to a festival advocating the legalization of hemp are both lawful activities protected by the first amendment to the United States Constitution. I do not believe that these lawful activities can constitute probable cause.

These facts, combined with the officer’s observation of the ashtray being open the first time he saw it and closed the next, amount to mere suspicion. "Mere suspicion [citation] or curiosity is not enough to justify a search. [Citation.] *** [A]n officer’s authority to investigate a traffic violation may not serve as a subterfuge to obtain other evidence based on suspicion.” Penny, 188 Ill. App. 3d at 502 .

Likewise, the officer’s observation of Terrill’s nervousness and perspiration cannot support a finding of probable cause. Merely appearing nervous at the approach of a police officer is not sufficiently suspicious conduct to justify probable cause. People v. Blake, 268 Ill. App. 3d 737, 741 (1995).

Finally, the fact that the trained dog "alerted” to a possible presence of a controlled substance after the defendants’ vehicle was detained cannot support a finding that the officer had probable cause to detain the vehicle for the search. The existence of probable cause to detain and search must be based upon the totality of the circumstances known to the officer at the time of the search. The critical time period in this case is the period of time from the initial stop of the vehicle until the dog’s alert. People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995). If there was no basis for a search of the vehicle prior to the dog’s alert, the defendants were not lawfully detained at the time of the alert, and the search was unlawful. Koutsakis, 272 Ill. App. 3d at 163 .

I would hold that Officer Oleson did not have probable cause to search the defendants’ vehicle and would reverse the trial court on that basis. Since the People could not prevail on remand without the evidence that I would find should have been suppressed, I would reverse defendants’ convictions outright. People v. Woods, 241 Ill. App. 3d 285, 290 (1993).