People v. Matous

No. 3--06--0633
(Consolidated with Nos. 3--06--0634 and 3--06--0635)
_________________________________________________________________
Filed April 15, 2008
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois,
Plaintiff-Appellant, )
)
v. ) Nos. 05--CF--188, 05--CF--189,
) and 05--CF--190
CHRISTOPHER A. MATOUS, )
WESLEY E. MILLER, and )
BRUCE E. EGLEY, ) Honorable
) William D. Henderson,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________

JUSTICE SCHMIDT delivered the opinion of the court:
_________________________________________________________________

In separate cases, the State charged each of the defendants,

Christopher A. Matous, Wesley E. Miller, and Bruce E. Egley, with

two counts of unlawful possession of methamphetamine

manufacturing chemicals (pseudoephedrine) (720 ILCS 570/401 (West

2004)). Each of the defendants filed motions to suppress the

evidence in their respective cases. The trial court held a

consolidated hearing on the motions, which the court granted. On

appeal, the State argues that the trial court erred by granting

the defendants' motions to suppress. We reverse and remand.

BACKGROUND

The event in question took place in Macomb on August 29,

2005. At the suppression hearing, Joseph Moon testified that on
August 29, he was an Illinois state trooper and a canine handler.

At approximately 6 p.m., Moon was on patrol when he heard a

dispatch from the McDonough County sheriff's office over his

squad car's radio concerning "possible methamphetamine chemical

purchases." The dispatcher said "that a Hy-Vee Pharmacy had

called them advising that two males had purchased boxes of

pseudoephedrine pills and got into the same vehicle, which was a

purple Mercury Tracer with Iowa registration." The dispatcher

then stated the vehicle's Iowa license plate number.

Moon said that the dispatcher reported that the men "each

purchased pseudoephedrine, a box of pseudoephedrine pills and got

into the same vehicle." When Moon was asked, "How many boxes of

pseudoephedrine?," Moon replied, "I believe two total." The

dispatcher described the two individuals as (1) a white male in

his forties with grey or white hair in a ponytail, wearing a

white tee-shirt; and (2) a white male in his twenties. During

the hearing, Moon noted that he met with the Hy-Vee pharmacist

and viewed videotapes of the defendants after their arrest.

At approximately 7 or 7:30 p.m., Moon observed a purple

Mercury Tracer traveling on U.S. 136. The vehicle's Iowa license

plate number matched the number given by the dispatcher. Moon

said the car had three occupants, two of whom matched the

dispatcher's descriptions of the individuals at the Hy-Vee store.

Moon noted that the driver of the car appeared to be in his

forties, had a white ponytail, and was wearing a white tee-shirt.

According to Moon, the rear passenger was "a younger white male."

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 Moon followed the Mercury in his squad car. Moon said, "I

observed the vehicle make a traffic violation and called in a

stop and activated my emergency lights." When he was asked to

describe the violation, Moon stated that the vehicle "[c]rossed

the center line." Later, Moon testified that there were two

solid yellow lines in the center of the highway. Moon observed

the vehicle drive "over the far right yellow line at the time of

the offense." He said that the vehicle did not cross the second

yellow line but, rather, crossed "just one of them." Moon

asserted that he would have stopped the vehicle on the basis of

the information from the dispatcher regardless of the traffic

violation.

After the vehicle stopped, Moon asked the driver for his

driver's license and proof of insurance, which the driver

produced. The driver was defendant Egley. Moon advised Egley

that he had stopped the vehicle because of improper lane usage

and "the intelligence information of the *** possible

manufacturing of methamphetamine." Egley replied that "his

windshield was dirty, and when he rounded the corner and the

sunlight caught the windshield, it was obstructed and he couldn't

see out of it."

Moon asked Egley to join him in the squad car, where Moon

began to write warning tickets for improper lane usage and an

obstructed view. While writing the warnings, Moon asked Egley if

he had stopped anywhere in Macomb. Egley asserted that he had

not stopped anywhere. Moon testified that he considered Egley's

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answer to be deceptive because of the information from the

dispatcher that the vehicle had stopped at the Hy-Vee.

Before completing the warning tickets, Moon advised Egley

that he was going to have his dog sniff the exterior of the

Mercury. At that time, the two passengers were still inside the

car. When the dog sniffed the outside of the car, it alerted to

the driver's side door seam, the trunk lid, and the passenger

side door seam. Moon asked the passengers to exit the vehicle,

and he searched the car's passenger area. The officer found two

bags containing a total of approximately 28 or 29 boxes of

pseudoephedrine. One bag was on the front passenger floorboard,

and the other bag was on the rear passenger floorboard. Moon

then arrested the three defendants and advised them of their

Miranda rights.

Moon stated that he was writing the warning tickets for

approximately 10 to 12 minutes. He said that about 15 to 20

minutes elapsed from the time he stopped the vehicle until he

took the defendants into custody. Moon testified that during the

stop he did not tell any of the three defendants that he was free

to go.

The officer acknowledged that the dog was not trained to

alert to pseudoephedrine. The dog was trained, however, to alert

to methamphetamine, among other illegal drugs. After he was

arrested, defendant Matous admitted to Moon "that he had used

methamphetamine sometime within the [previous] 24 hours." Moon

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speculated that the dog may have alerted to the residual odor of

methamphetamine while Matous was in the car.

After the presentation of the evidence, the court heard

closing arguments. The attorney for defendant Miller argued, in

part, that Moon was not justified in relying on the information

from the dispatcher because of what the attorney called "the

Lawson and Willock doctrine." Defense counsel cited the holdings

of People v. Lawson, 298 Ill. App. 3d 997, 700 N.E.2d 125 (1998),

and People v. Willock, No. 3--99--0227 (2000) (unpublished order

under Supreme Court Rule 23), for this doctrine. The court

overruled the prosecutor's objection to defense counsel's

reliance upon a Rule 23 decision.

At the conclusion of the suppression hearing, the court took

the matter under advisement. The court first issued an opinion

letter. Later, the court issued its written final order, in

which it incorporated the opinion letter by reference. In the

letter, the judge said, "My decision is primarily based on

[Miller's attorney's] *** 'Lawson-Willock Doctrine.' " The court

then stated the following:

"This was an investigatory stop plain and simple.

The officer candidly testified that based on the radio

dispatch he was going to stop the vehicle in which the

defendants were traveling irrespective of any traffic

violation. He issued warnings for the alleged lane

usage and obstructed windshield, but had he charged

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 these violations, the driver would have been acquitted

on the driving evidence presented."

Next, the judge quoted facts and analysis from Willock, for

which he had been the trial judge. The judge noted that in

Willock, this court said that when an officer relies upon a radio

dispatch in arresting a defendant, at a suppression hearing the

State must produce evidence that the officer who issued the

dispatch had probable cause to arrest the defendant.

The judge then stated the following:

"Neither the dispatcher nor the [Hy-Vee]

pharmacist [was] called as a witness by the State to

provide proof of reliability of the source or to supply

specific, articulable facts to warrant the stop. Under

the 'Lawson-Willock Doctrine' this omission in and of

itself was fatal. I also note that given the paucity

of incriminating evidence upon which the dispatch

apparently relied, it is doubtful whether the State

could have established the reliability of its source

even with their testimony."

The court granted the motions to suppress, and the State

appealed.

ANALYSIS

The State contends that the trial court erred by granting

the motions to suppress.

Initially, we note that neither defense counsel nor the

trial court should have relied on our unpublished Rule 23 order

6
in Willock as precedential authority. Rule 23(e) states that

"[a]n unpublished order of the court is not precedential and may

not be cited by any party except to support contentions of double

jeopardy, res judicata, collateral estoppel or law of the case."

166 Ill. 2d R. 23(e). In this case, defense counsel was not

citing Willock to support a contention of double jeopardy, res

judicata, collateral estoppel, or law of the case. Therefore, it

was improper for defense counsel to cite, and for the court to

consider, Willock as precedential authority. There can be no

"Lawson-Willock doctrine."

On appeal, a trial court's factual findings concerning a

motion to suppress will be upheld unless they are against the

manifest weight of the evidence. People v. McCarty, 223 Ill. 2d

109, 858 N.E.2d 15 (2006). The ultimate decision, however,

concerning whether the evidence should have been suppressed is a

question of law, which we review de novo. McCarty, 223 Ill. 2d

109, 858 N.E.2d 15.

A peace officer may conduct a lawful traffic stop based on

probable cause that the driver of the vehicle has committed a

traffic violation. Illinois v. Caballes, 543 U.S. 405, 160 L.

Ed. 2d 842, 125 S. Ct. 834 (2005). An officer also may

temporarily detain a person with less than probable cause, for

the officer's safety, if the officer has reasonable, articulable

suspicion of the defendant's criminal activity. Terry v. Ohio,

392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The United

States Supreme Court applied the principles of Terry to traffic

7
stops in Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99

S. Ct. 1391 (1979). An officer may conduct a Terry traffic stop

if the officer has a reasonable, articulable suspicion that (1)

the driver is unlicensed; (2) the vehicle is not registered; or

(3) that either the vehicle, or an occupant of the vehicle, is

subject to seizure for violation of a law. Prouse, 440 U.S. 648,

59 L. Ed. 2d 660, 99 S. Ct. 1391.

In this case, we rule that Moon had probable cause to stop

the defendants' vehicle because of a lane violation. See

Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834. In

Illinois, "[w]here *** markings are in place to define a no-

passing zone *** no driver may at any time drive *** on the left

side of any pavement striping designed to mark such no-passing

zone." 625 ILCS 5/11--707(b) (West 2004).

In the instant case, Moon observed the vehicle in question

cross one of the solid yellow center lines of the highway. Thus,

the car was on the left side of pavement striping designed to

mark a no-passing zone. See 625 ILCS 5/11--707(b) (West 2004).

Therefore, Moon had probable cause to stop the car for violation

of section 11--707(b) of the Illinois Vehicle Code (625 ILCS

5/11--707(b) (West 2004)).

Additionally, we hold that Moon was justified in conducting

a Terry stop of the vehicle because the officer had a reasonable,

articulable suspicion that occupants of the vehicle were subject

to seizure for violation of a law. See Prouse, 440 U.S. 648, 59

L. Ed. 2d 660, 99 S. Ct. 1391. Moon's reasonable, articulable

8
suspicion was based on information from the sheriff office's

dispatcher, which, in turn, came from the Hy-Vee pharmacist.

We note that the trial court in this case cited Willock and

Lawson for the general proposition that the State's failure to

call the dispatcher or the pharmacist to testify was fatal to its

case. As we noted above, the court should not have cited Willock

because it was a Rule 23 order. Furthermore, Lawson, which only

concerned an arrest, and People v. Scott, 249 Ill. App. 3d 597,

619 N.E.2d 809 (1993), which addressed both arrests and Terry

stops, do not stand for the general proposition that it is always

fatal to the State's case to fail to produce such testimony. As

we explain below, the trial court's statement concerning the

State's burden was overly broad.

As the moving party in a suppression hearing, the defendant

has the initial burden to prove that his seizure was unlawful or

impermissible, that is, that the police lacked either probable

cause to arrest or a reasonable articulable suspicion to

temporarily detain the defendant. Scott, 249 Ill. App. 3d 597,

619 N.E.2d 809. If the defendant makes a prima facie showing

that he was doing nothing unusual to justify his seizure by the

police, the burden of going forward then shifts to the State.

Scott, 249 Ill. App. 3d 597, 619 N.E.2d 809.

At the suppression hearing in this case, the court stated

that the State's failure to call the dispatcher or the pharmacist

to testify was fatal to its case. However, the court first

should have found that the defendants had made a prima facie

9
showing that they were doing nothing unusual to justify their

seizure and that the burden, therefore, had shifted to the State.

In the instant case, the defendants argue that Moon was not

justified in conducting a traffic stop because the information

Moon heard over the radio from the sheriff's dispatcher came from

an anonymous tip. Put simply, the defendants are incorrect

because the source of the information was not anonymous but,

rather, was identified as the Hy-Vee pharmacy, i.e., a pharmacist

at the Hy-Vee.

We find two cases from the Illinois Appellate Court, Fourth

District, to be instructive concerning whether a source of

information is anonymous in the context of a Terry traffic stop.

In People v. Shafer, 372 Ill. App. 3d 1044, 868 N.E.2d 359

(2007), a Wendy's employee called the police to report the

defendant's intoxicated behavior at the drive-through window, as

well as detailed information about the defendant's vehicle. An

officer conducted a Terry stop of the defendant's vehicle based

on the information from the Wendy's employee, as related by the

dispatcher. The Shafer court ruled that the Wendy's employee was

not an anonymous source.

In People v. Ewing, 377 Ill. App. 3d 585, 880 N.E.2d 587

(2007), a veterinary clinic employee called the police to report

the defendant's intoxicated behavior at the clinic, as well as

detailed information about the defendant's vehicle. An officer

conducted a Terry stop of the defendant's vehicle based on the

information from the clinic's employee, as related by the

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dispatcher. The Ewing court also ruled that the clinic's

employee was not an anonymous source.

In the present case, a Hy-Vee pharmacist called the

sheriff's department to report the suspicious circumstances of

two of the defendants' pseudoephedrine purchases, as well as

detailed information about the defendants' vehicle. Moon

conducted a Terry stop of the defendants' vehicle based on the

information from the pharmacist, as related by the dispatcher.

Under Shafer and Ewing, we rule that the pharmacist was not an

anonymous source.

Furthermore, we note that the record shows that Moon later

met with the pharmacist who had called the dispatcher. The

pharmacist's name appears in the record in this context. It is

possible that Moon was able to ask for the pharmacist by name

because the pharmacist gave his or her name to the dispatcher.

It is equally possible that the pharmacist did not identify

himself or herself by name to the dispatcher, and the police

learned the pharmacist's name later after asking the Hy-Vee

pharmacy which pharmacist had made the call. In either event, we

cannot say that the pharmacist was an anonymous source merely

because Moon did not know the pharmacist's name at the time of

the traffic stop.

The trial court in this case relied on Lawson, 298 Ill. App.

3d 997, 700 N.E.2d 125, in finding that there was insufficient

cause to stop the defendant's car for unlawful possession of

methamphetamine chemicals. In Lawson, at the suppression

11
hearing, the arresting officer testified that he heard over the

radio that a robbery had taken place in a business establishment

and that the robber had shot a man. The broadcast gave a

description of the robber. While in his squad car, the officer

saw the defendant, who fit the description of the robber, and

arrested him. The Lawson court ruled that even though the

officer was justified in relying on the radio description to

arrest the defendant, the State was required to present proof of

the basis of the radio broadcast in order to survive the motion

to suppress.

Lawson is factually distinguishable from the present case

for two reasons. In Lawson, the evidence did not include the

basis of the radio broadcast. In this case, the evidence

included the basis of the dispatcher's broadcast, i.e., a

pharmacist from Hy-Vee. Additionally, Lawson concerned the

validity of the defendant's arrest. As we noted above, the issue

in this case is the validity of the initial traffic stop rather

than the validity of the defendants' arrests.

The defendants submit that in order to make a traffic stop

based on information outside the officer's personal knowledge,

the information must have some indication of reliability, citing

People v. Sparks, 315 Ill. App. 3d 786, 734 N.E.2d 216 (2000),

and People v. Brown, 343 Ill. App. 3d 617, 798 N.E.2d 800 (2003).

Sparks and Brown, however, concerned information from an

anonymous source, and therefore the information lacked

reliability. As we stated above, this case does not concern

12
information from an anonymous source. Therefore, we find Sparks

and Brown to be inapplicable to the present case.

The defendants assert that the pharmacist's information

about two individuals purchasing two boxes of pseudoephedrine and

getting into the same car did not constitute reasonable,

articulable suspicion of criminal activity because it is not a

crime to possess such a small quantity of pseudoephedrine. See

720 ILCS 648/20(c) (West 2006). We note that the statute relied

upon by the defendants was not in effect at the time of the

traffic stop. See Pub. Act 94--694, eff. January 15, 2006.

Moreover, the issue is not whether possessing the two boxes

constituted a crime but, rather, whether such possession, and the

circumstances attending their purchase, raised a reasonable,

articulable suspicion of criminal activity. See Prouse, 440 U.S.

648, 59 L. Ed. 2d 660, 99 S. Ct. 1391. We find that such

behavior was sufficient to raise such a reasonable, articulable

suspicion.

Moon testified that employees of local business

establishments had been asked to report the purchases of the

chemical components of methamphetamine. In this case, the

pharmacist reported such purchases, and the suspicious

circumstances surrounding the purchases. The pharmacist noted

that two of the defendants each purchased a box of

pseudoephedrine and got into the same car. The pharmacist's

report of the defendants' behavior formed the basis of Moon's

reasonable, articulable suspicion.

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 Moreover, we recognize that pharmacists are in the business

of selling drugs to their customers. It is against a

pharmacist's financial interest to call the police to arrest

customers. It is also common knowledge that pharmacists have

been alerted to the use of pseudoephedrine in making

methamphetamine. Therefore, the fact that the defendants'

behavior raised the pharmacist's suspicion such that the

pharmacist would call the police to report the customers was an

indication of the reliability of the pharmacist's information.

Having established that the initial traffic stop was proper,

we conclude that the defendants cannot show that the evidence

should have been suppressed. Under Caballes, 543 U.S. 405, 160

L. Ed. 2d 842, 125 S. Ct. 834, (1) the dog sniff in this case was

not a search; (2) Moon was justified in searching the vehicle

after the dog alerted; and (3) Moon's seizure of the evidence was

proper because it was contraband.

In summary, Moon had probable cause to stop the vehicle for

a lane violation. Additionally, the officer had a reasonable,

articulable suspicion to conduct a Terry stop of the car because

of the information from the dispatcher. The officer's search of

the vehicle and seizure of contraband found within the vehicle

were justified after the officer's drug-sniffing dog alerted.

Therefore, we hold that the trial court erred by granting the

defendants' motions to suppress.

CONCLUSION

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 For the foregoing reasons, we reverse the judgment of the

McDonough County circuit court and remand the cause for further

proceedings.

Reversed and remanded.

O'BRIEN, J., concurs.

CARTER, J., specially concurring:

I concur with the majority’s legal analysis and decision. I

am specially concurring because of the comments regarding the

trial court’s reference to People v. Willock, No. 3--99--0227

(October 6, 2000) (unpublished order under Supreme Court Rule

23). As noted in the majority opinion, the trial judge in this

case had been the trial judge in Willock, where his trial

decision was reversed. Although it is well known that an

unpublished order of the appellate court is not precedential (166

Ill. 2d R. 23(e)), it is not unusual, nor surprising, for a trial

judge to refer to one of his cases, not as precedential, but

perhaps as persuasive authority. The whole unpublished-opinion

doctrine has always raised the question, how much deference does

a trial judge give to an appellate court’s decision on an issue

that comes before him again when, like it or not, he has already

been given guidance by the appellate court on the same or similar

issues. The judge in that situation is obviously under no

obligation to follow the unpublished decision because it lacks

the force of true precedent. However, unlike the decision of a

court of another jurisdiction, which normally depends upon the

case’s legal reasoning for its influence, an unpublished decision

15
on an issue from the same trial judge tends to have a type of

hybrid extra persuasive influence. That kind of unpublished

decision of a superior court in the same judicial hierarchy

causes the trial judge to consider it in the real world. In my

experience, trial judges do not simply ignore cases from the

appellate court, especially when they were the trial judge,

regardless of whether the case was published or unpublished.

That approach is especially true when the published opinions on

the issues perhaps give less guidance than the unpublished

decision. Thus, in this case, where this panel of the appellate

court is treating an issue differently than a previous panel in

an unpublished decision, it is understandable that at the trial

level, the judge made a reference to the earlier case.

For the reasons stated, I specially concur.

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