People v. Thomas

Illinois Official Reports

Appellate Court

People v. Thomas, 2014 IL App (3d) 120676

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NORMAN E. THOMAS, Defendant-Appellant.

District & No. Third District
Docket No. 3-12-0676

Filed October 27, 2014
Modified upon denial
of rehearing January 8, 2015

Held The appellate court upheld defendant’s convictions for unlawful
(Note: This syllabus possession of a controlled substance and resisting or obstructing a
constitutes no part of the peace officer arising from a free-air sniff by a drug-sniffing dog
opinion of the court but following a traffic stop for failing to dim the bright lights on the car
has been prepared by the defendant owned but in which he was riding as a passenger, since
Reporter of Decisions defendant’s trial counsel was not ineffective in failing to raise the
for the convenience of meritless argument that the stop was unnecessarily prolonged by the
the reader.) free-air sniff, after the valid traffic stop, defendant was not subjected
to a second seizure that was unlawful and an unlawful search when the
officer requested that the windows of the car be closed and the heater
be turned on in preparation for the free-air sniff, especially when
defendant had already been lawfully seized, and the “prepping”
procedure for the free-air sniff is not, according to Bartelt, a search in
violation of the fourth amendment, and although the evidence was
sufficient to sustain defendant’s possession conviction based on the
cocaine found in the area of the car where defendant was riding, his
conviction for resisting or obstructing a peace officer was reduced
from a felony to a misdemeanor and the cause was remanded for
resentencing due to the absence of any evidence that the officer was
injured.
 Decision Under Appeal from the Circuit Court of Henry County, No. 08-CF-165; the
Review Hon. Charles H. Stengel, Judge, presiding.

Judgment Affirmed in part and modified in part; cause remanded.

Counsel on Michael J. Pelletier and Adrienne River, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.

Terence M. Patton, State’s Attorney, of Cambridge (Robert M.
Hansen, of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justice Holdridge concurred in the judgment and opinion.
Justice O’Brien concurred in the judgment.

OPINION

¶1 After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession
of a controlled substance (720 ILCS 570/402(c) (West 2008)) and resisting a peace officer
(720 ILCS 5/31-1(a), (a-7) (West 2008)). The trial court sentenced defendant to 30 months’
conditional discharge. Defendant appealed, and this court remanded for further proceedings.
People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions
for a new trial and to reconsider his amended motion to suppress evidence. Both motions were
denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor
resisting a peace officer; (2) the State failed to prove actual or constructive possession of
cocaine; (3) he received ineffective assistance of trial counsel; (4) he was unlawfully seized as
a result of the officer’s request to roll up the car windows and turn the heat on; and (5) the
officer’s request regarding the windows and heat constituted an unlawful search. We affirm in
part, modify in part, and remand for further proceedings.

¶2 FACTS
¶3 Defendant was charged by amended information with unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West 2008)), resisting or obstructing a peace officer (720
ILCS 5/31-1(a), (a-7) (West 2008)), and obstructing justice (720 ILCS 5/31-4(a) (West 2008)).
Defense counsel filed a motion to suppress evidence, arguing that excessive force had been
used by the police. The motion stated that the car defendant was riding in was stopped by

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 Officer William Rivord for failing to dim its bright lights. Defendant and the driver, William
Gordon, told Rivord that there was nothing illegal in the car and they did not consent to a
search. Rivord conducted a free-air sniff with his canine unit. After the search, Rivord told
defendant and Gordon that the dog had alerted and he was going to search the vehicle. The
motion alleged that Rivord and Sergeant Pat Clapper used excessive force to obtain evidence
from defendant after he exited the vehicle.
¶4 At the hearing on defendant’s motion, Gordon testified that on the night of May 3, 2008, he
was driving defendant’s blue Lincoln when he was stopped by Rivord for failing to dim his
bright lights. Defendant was a passenger in the vehicle and was unable to drive because he did
not have a valid driver’s license. During the stop, Rivord instructed Gordon to start the Lincoln
and roll the windows up while Rivord walked his dog around the car. Thereafter, Rivord told
Gordon that the dog had alerted and ordered Gordon and defendant out of the car. As Rivord
escorted Gordon out of the Lincoln, Gordon heard a second police officer yell at defendant.
Gordon saw the second officer call for backup as he was choking defendant on the ground.
¶5 Defendant testified that on the date of the stop, he was riding in his Lincoln with Gordon
when the vehicle was stopped by Rivord. Rivord asked for Gordon’s driver’s license, vehicle
registration, and proof of insurance. After obtaining the documents, Rivord instructed
defendant and Gordon to wait in the car while he returned to his patrol car. Thereafter, Rivord
handed the documents back, and he asked Gordon to roll up the windows and turn on the heat
because he was going to walk his dog around the car. Following the free-air sniff, Rivord
directed defendant and Gordon to exit the car. As defendant got out of the car, two prescription
Vicodin pills fell off of his coat and onto the ground. Defendant picked up the pills and put
them in his mouth. At that point, Clapper forced defendant to the ground, ordered defendant to
open his mouth, and choked defendant. Defendant opened his mouth and did not resist the
officer. Eventually, defendant lost consciousness and awoke the following day in a hospital.
¶6 On cross-examination, defendant stated that he had swallowed the Vicodin pills that fell on
the ground, and he did not recall Clapper’s order to step away from a baggie that fell to the
ground as he exited the vehicle. Defendant reported that he dropped a piece of plastic that
contained the Vicodin pills, but contended that he did not have a baggie. Defendant did not
take the pills earlier in the stop because he forgot about them while he was looking for the
documents that Rivord had requested.
¶7 Rivord testified that he stopped a blue Lincoln at approximately 11:30 p.m. on May 3,
2008, for driving with its bright lights on. Initially, Rivord approached the driver’s side
window and asked for Gordon’s driver’s license and proof of insurance. After receiving the
documents, Rivord advised Gordon and defendant that he was a canine officer and asked if
there was anything in the Lincoln that he needed to know about. Defendant and Gordon replied
in the negative, and Rivord said that he was going to conduct a free-air sniff. Rivord asked
Gordon to roll up the vehicle windows and turn the heat on. Rivord “immediately, before doing
anything else, got [his] dog out and walked the dog around the car.” The dog alerted on
defendant’s side of the Lincoln by the passenger door. Rivord returned the dog to his patrol car
and reapproached the Lincoln. Sometime after the stop began, Clapper arrived at the scene.
¶8 Following the dog alert, Rivord approached the driver’s side door, and Clapper walked up
to the passenger door. Rivord informed defendant and Gordon of the dog alert and directed
them to exit the vehicle. As Rivord and Gordon reached the back corner of the Lincoln, Rivord
saw defendant get out of the car, and he heard Clapper command defendant to leave something

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 on the ground. Defendant bent over, picked something up, and placed it in his mouth. Clapper
told Rivord that defendant had put a baggie containing a white substance in his mouth, and he
grabbed defendant. Rivord ran to Clapper’s assistance, and the officers and defendant fell to
the ground in a struggle. Defendant did not obey the officers’ commands to place his hands
behind his back or to open his mouth. Rivord saw what appeared to be chewed-up pieces of
crack on defendant’s lips and tongue. Eventually, the officers restrained defendant and put
pieces of the substance from defendant’s mouth in an evidence bag and bagged pieces of the
substance that were lying on the ground.
¶9 On cross-examination, Rivord stated that he began the free-air sniff five to seven minutes
into the stop. Rivord said that the substance in defendant’s mouth did not look like a
prescription pill and, based on his training, he thought the substance was chewed-up pieces of
crack cocaine. During a search of the vehicle, officers discovered cocaine between the driver
and passenger seats.
¶ 10 The trial court found that Rivord was a credible witness, there was probable cause for the
free-air sniff, and there was no delay. The trial court denied defendant’s motion to suppress.
¶ 11 On June 16, 2009, the court dismissed the obstructing justice charge. Following a
stipulated bench trial, defendant was found guilty of unlawful possession of a controlled
substance and resisting a peace officer. The trial court sentenced defendant to 30 months’
conditional discharge, and defendant appealed.
¶ 12 In the first appeal, we held that the parties and the court intended that the stipulated
proceedings were not to operate as a guilty plea. People v. Thomas, 2011 IL App (3d)
090886-U. As a result, we remanded the cause to the trial court for admonishments pursuant to
Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001).
¶ 13 Following the remand, defendant filed a motion for new trial and to reconsider his
amended motion to suppress. At the reconsideration hearing, Rivord testified that he stopped
the vehicle defendant was riding in for failing to dim its headlights in the face of oncoming
traffic. Defendant testified, in response, that there was no oncoming traffic. The trial court
found Rivord’s testimony more credible and denied the motion to suppress. Defendant
appeals.

¶ 14 ANALYSIS
¶ 15 On appeal, defendant argues that: (1) trial counsel rendered ineffective assistance when he
failed to argue that the free-air sniff unlawfully prolonged the traffic stop; (2) the evidence was
insufficient to sustain his conviction of resisting a peace officer and possession of a controlled
substance; (3) the officer’s request to roll up the windows and turn on the heater prior to the
dog sniff was an unlawful seizure; and (4) the dog-sniff search was an unreasonable search of
the vehicle’s interior.

¶ 16 I. Motion to Suppress
¶ 17 Defendant argues that reversal of the trial court’s ruling on his motion to suppress is
warranted for two reasons: (1) he received ineffective assistance of counsel; or (2) he was
unlawfully seized and searched as result of the officer’s orders to roll up the vehicle windows
and turn on the heater. In reviewing a trial court’s ruling on a motion to suppress evidence, we
apply a two-part standard of review. People v. Cosby, 231 Ill. 2d 262, 271 (2008). A trial

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 court’s findings of fact will only be reversed where they are against the manifest weight of the
evidence. People v. Hackett, 2012 IL 111781, ¶ 18. We review de novo the trial court’s
ultimate legal ruling as to whether suppression is warranted. Id.

¶ 18 A. Ineffective Assistance of Counsel
¶ 19 Defendant argues that counsel was ineffective for failing to challenge the length of the
stop, which was unnecessarily prolonged by the free-air sniff.
¶ 20 To prevail on an ineffective assistance of counsel claim, defendant must show that: (1)
counsel’s representation fell below an objective standard of reasonableness; and (2) the
deficient performance so prejudiced defendant as to deny him a fair trial. Strickland v.
Washington, 466 U.S. 668 (1984); People v. Bew, 228 Ill. 2d 122, 127 (2008). Specifically,
defendant must prove that counsel’s performance was objectively unreasonable under
prevailing professional norms and there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. People v.
Hughes, 2012 IL 112817, ¶ 44.
¶ 21 The federal and state constitutions protect citizens from unreasonable searches and
seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Stopping a vehicle and detaining
its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); People v.
Harris, 228 Ill. 2d 222 (2008). An initially lawful seizure can violate the fourth amendment if
its manner of execution unreasonably infringes interests protected by the Constitution. Illinois
v. Caballes, 543 U.S. 405, 407 (2005); Harris, 228 Ill. 2d at 235. For example, a traffic stop
that is justified 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; see also Harris, 228 Ill. 2d at 235. “Brevity is an important factor in determining
whether a detention was reasonable, but the court should also consider whether the police acted
diligently in pursuing the investigation.” People v. Welling, 324 Ill. App. 3d 594, 602 (2001).
¶ 22 In the instant case, defense counsel did not argue that Rivord unlawfully prolonged the stop
by conducting a free-air sniff. The trial evidence showed that Rivord initiated the stop because
Gordon did not dim his bright lights. Rivord approached the vehicle, asked Gordon for the
necessary documentation, and stated that he was a canine officer and was going to conduct a
free-air sniff. The free-air sniff began between five and seven minutes into the stop. While
there is no talismanic period of time beyond which an initially justified traffic stop becomes an
unreasonable seizure (People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995)), a number of
cases hold that approximately 10 to 12 minutes is the average amount of time for a traffic stop
with warning tickets. See People v. Canizalez-Cardena, 2012 IL App (4th) 110720 (free-air
sniff 7 to 8 minutes into a traffic stop did not prolong the stop and a stop of 10 to 12 minutes to
issue a warning ticket was reasonable); People v. Kats, 2012 IL App (3d) 100683 (nine-minute
stop to issue a warning ticket was sufficiently brief); People v. Staley, 334 Ill. App. 3d 358
(2002) (18-minute traffic stop that included confirming the status of defendant’s driver’s
license and license plate registration and issuing two traffic citations was not unduly long). In
light of this record, we agree with the trial court that the stop at issue was not unreasonably
prolonged.
¶ 23 However, defendant argues that the duration of the seizure is not conclusive of whether the
stop was prolonged. Rather, defendant contends that the stop was unreasonably prolonged by
the officer’s deviation from writing a warning ticket or citation for the headlight infraction to

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 conduct the free-air sniff. See People v. McQuown, 407 Ill. App. 3d 1138 (2011) (stop was
unduly prolonged where officer did not ask for a canine unit until 13 minutes after the initial
purpose of the stop had ended, and canine unit did not arrive for an additional 25 minutes);
People v. Al Burei, 404 Ill. App. 3d 558 (2010) (stop of vehicle was unreasonably prolonged by
officer’s continued questions after the initial purpose of the stop had been satisfied); People v.
Baldwin, 388 Ill. App. 3d 1028 (2009) (traffic stop was deemed unreasonably prolonged where
the stopping officer had to call a second officer to bring a drug dog).
¶ 24 In contrast to defendant’s cited cases, Rivord had a drug-sniffing dog in his patrol vehicle
and conducted the free-air sniff without delay. Rivord did not pose additional questions to
delay defendant and avoided any undue delay as he was already in possession of the dog.
Additionally, no additional suspicion or probable cause was required to conduct a free-air sniff
because the search did not infringe on defendant’s privacy interests and only exposed the
presence of contraband items. Caballes, 543 U.S. 405.
¶ 25 Defendant has not shown that defense counsel’s omission of a prolonged stop argument
altered the outcome of the proceeding. Therefore, defense counsel was not ineffective for
failing to advance a meritless argument.

¶ 26 B. Search and Seizure
¶ 27 1. Seizure
¶ 28 Defendant argues that if we do not reverse the denial of his motion to suppress on
ineffective assistance grounds, remand is necessary to determine if defendant was
unreasonably seized as a result of the officer’s request to roll up the car windows and turn on
the heat. Initially, we note that defendant was lawfully seized at the time the vehicle he was
riding in was stopped for a traffic violation. See Brendlin v. California, 551 U.S. 249 (2007)
(passengers in a stopped vehicle are lawfully seized at the time the vehicle is stopped by the
police). Until the traffic stop was complete, defendant was not free to leave and therefore could
not be subject to a second, simultaneous seizure. See People v. Ortiz, 317 Ill. App. 3d 212, 221
(2000) (investigative stop was complete after officer returned defendant’s driver’s license and
issued a warning).
¶ 29 In his petition for rehearing, defendant takes issue with our ruling that ordering the
defendant to roll up his windows and turn on the fan was not a second seizure. In support, he
cites the dissent in People v. Bartelt, 241 Ill. 2d 217, 245-46 (2011) (Freeman, J, dissenting).
We find that the issue of whether the relevant police conduct was a “second seizure” or a
“search,” is a semantic one. Was it a search or a second seizure? Pick one; it does not matter.
We find that the notion of a “second seizure” of someone who is already seized somewhat
confusing. Had the police, after ordering defendant to roll up his windows and turn on the fan,
then ordered the driver to hit the trunk release button, would that be a “third seizure” or a
“double-secret seizure?” As set forth below, we believe that the setup procedure at issue
constituted a search and not a seizure. The bottom line is the same.

¶ 30 2. Search
¶ 31 Defendant also contends that he was subject to an illegal search when he was ordered to
roll up the windows and turn on the heater prior to the dog sniff.

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¶ 32 As a matter of first impression, in People v. Bartelt, 241 Ill. 2d 217 (2011), our supreme
court held that the setup procedure of ordering a vehicle occupant to roll up her windows and
turn the blowers on high before an officer conducted a dog sniff of the exterior of the vehicle
was not an unreasonable search. In support of its decision, the court analogized the setup to the
suitcase “prepping” procedure affirmed by the Fifth Circuit in United States v. Viera, 644 F.2d
509, 510 (5th Cir. 1981). In Viera, Drug Enforcement Administration agents “prepped” the
defendants’ suitcases before a dog sniff by pressing them lightly with their hands and slowly
circulating the air in order to procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth
Circuit reasoned that the “prepping” procedure was not a search in violation of the fourth
amendment because a light press of the hands along the outside of the suitcases was not so
intrusive as to require a different result. Id. In relying on Viera, our supreme noted that
“ordering defendant to roll up her windows and turn the blowers on high before conducting the
dog sniff was not sufficiently intrusive” as to offend the fourth amendment. Bartelt, 241 Ill. 2d
at 231.
¶ 33 The Bartelt decision requires that we affirm the trial court’s ruling on the motion to
suppress; however, we believe that Bartelt will ultimately be overruled by the United States
Supreme Court. As these setup procedures become more common, the United States Supreme
Court will undoubtedly grant certiorari in a similar case. We acknowledge that one has a lesser
expectation of privacy in a motor vehicle because its function is transportation and it seldom
serves as one’s residence or as the repository of personal effects. Cardwell v. Lewis, 417 U.S.
583, 590 (1974). A car has little capacity for escaping public scrutiny; it travels public
thoroughfares where its occupants and its contents are in plain view. See Cardwell, 417 U.S. at
590; People v. DeRusha, 74 Ill. App. 3d 641, 644 (1979). The occupant of the vehicle does not
have a reasonable expectation of privacy against police scraping paint samples from the
vehicle’s exterior (Cardwell, 417 U.S. at 591); having a drug dog sniff a vehicle’s exterior
(Caballes, 543 U.S. at 409); or electronically monitoring a vehicle’s movements on a public
street (United States v. Knotts, 460 U.S. 276, 282 (1983)).
¶ 34 The situation presented here is inherently different from the situations previously
addressed by the United States Supreme Court. This is not a “free-air” sniff of the exterior of a
vehicle. Rather, this is forcing a vehicle’s occupant to make available to officers, without a
warrant, something that is normally on the interior of the car and afforded at least some fourth
amendment protection. Although a dog sniff is not typically classified as a search, it does not
mean that the use of a drug-sniffing dog cannot eventually become a search, and an unlawful
one at that. See Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) (holding that an
officer’s use of a drug-sniffing dog on front porch of a home was a trespassory invasion of the
curtilage which constituted a search for fourth amendment purposes). It is not the dog sniff that
offends the fourth amendment. It is the police ordering the driver to roll up the windows and
activate the fan that crosses the line. This “setup” procedure is analogous to an officer ordering
the occupant to empty his pockets and throw the contents out the window onto the ground. The
occupant cooperates, and among his personal effects is a small bag containing contraband. The
contraband, now in plain view, prompts the officer to place the occupant under arrest. This is
not, nor could it ever be, the state of fourth amendment jurisprudence. While plain view and
plain smell are established exceptions to the warrant requirement, ordering a vehicle occupant
to participate in an assisted sniff of the interior of his vehicle transforms the free-air sniff into a

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 search governed by the fourth amendment. However, until the setup procedure employed here
and in Bartelt is overruled, we must affirm.

¶ 35 II. Sufficiency of the Evidence
¶ 36 Defendant argues that the State failed to prove beyond a reasonable doubt that (1) in
resisting arrest, he caused injury to a police officer, and (2) he had actual or constructive
possession of the cocaine found between the driver and passenger seats. In a challenge to the
sufficiency of the evidence, we must determine whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. People v. Baskerville, 2012 IL 111056,
¶ 31.

¶ 37 A. Resisting Arrest
¶ 38 Defendant asks this court to reduce his resisting arrest conviction to a misdemeanor
because defendant did not stipulate to evidence that a police officer had been injured. The State
responds that defendant stipulated that the evidence was sufficient to convict and, therefore, he
cannot argue that the evidence was insufficient to prove his guilt of felony level resisting.
However, in defendant’s first appeal, we held that the stipulated bench trial was not tantamount
to a guilty plea, as neither the parties nor the court intended it to function as such. People v.
Thomas, 2011 IL App (3d) 090886-U. Thus, under the law of the case doctrine, we hold that
defendant is not proscribed from arguing he was not proved guilty of felony-level resisting.
People v. Tenner, 206 Ill. 2d 381, 395 (2002).
¶ 39 To prove defendant guilty of felony-level resisting arrest, the State had to prove that
defendant knowingly resisted a peace officer in the performance of an authorized act and
proximately caused injury to the officer. 720 ILCS 5/31-1(a), (a-7) (West 2008). Here,
defendant stipulated to the evidence presented at the preliminary hearing and the motion to
suppress. We have reviewed the record, and find no evidence presented during either of the
hearings that the officer was injured. Therefore, we reduce defendant’s Class 4 felony
conviction to a Class A misdemeanor and remand the matter for resentencing. 720 ILCS
5/31-1(a), (a-7) (West 2008); Ill. S. Ct. R. 615(b)(3).

¶ 40 B. Possession of Cocaine
¶ 41 Defendant argues that the State did not prove beyond a reasonable doubt that he had actual
or constructive possession of the cocaine found on the front seat of the car.
¶ 42 To convict a defendant of unlawful possession of a controlled substance, the State must
prove beyond a reasonable doubt that defendant had knowledge of the presence of the
controlled substance and that he had immediate and exclusive possession or control of the
substance. People v. Woods, 214 Ill. 2d 455, 466 (2005). “Actual possession is the exercise by
the defendant of present personal dominion over the illicit material and exists when a person
exercises immediate and exclusive dominion or control over the illicit material.” People v.
Givens, 237 Ill. 2d 311, 335 (2010). “Constructive possession exists without actual personal
present dominion over a controlled substance, but with an intent and capability to maintain
control and dominion.” People v. Frieberg, 147 Ill. 2d 326, 361 (1992). Constructive
possession may exist where there is no physical possession if a defendant has an intent and

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 capacity to maintain control and dominion over the contraband. People v. Drake, 288 Ill. App.
3d 963, 969 (1997).
¶ 43 In the instant case, police found cocaine between the driver and passenger seats. Defendant
owned the vehicle. Defendant testified that he was a passenger at the time and, during the stop,
he went through the glove compartment to find the documents that Rivord had requested. After
the free-air sniff, Rivord approached the driver’s side, and Clapper approached the passenger’s
side. Thereafter, an altercation occurred on the passenger’s side when defendant refused to spit
out a white substance that he had placed in his mouth. Viewed in the light most favorable to the
State, this evidence was sufficient for the trier of fact to reasonably infer that defendant had
constructive possession of the cocaine.

¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed in
part and modified in part, and the cause is remanded for further proceedings.

¶ 46 Affirmed in part and modified in part; cause remanded.

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