People v. Duran

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Appellate Court Date: 2016.12.07
16:07:47 -06'00'

People v. Duran, 2016 IL App (1st) 152678

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption JOSE DURAN, Defendant-Appellee.

District & No. First District, Sixth Division
Docket No. 1-15-2678

Filed October 7, 2016

Decision Under Appeal from the Circuit Court of Cook County, No. 13-CR-06164; the
Review Hon. Rickey Jones, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Appeal John E. Nowak, and Kathryn F. Sodetz, Assistant State’s Attorneys, of
counsel), for the People.

John Paul Carroll, of Naperville, for appellee.

Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
 OPINION

¶1 The defendant, Jose Duran, was charged by indictment with one count of possession with
intent to deliver 900 or more grams of methamphetamine in violation of sections 55(a)(1) and
55(a)(2)(F) of the Methamphetamine Control and Community Protection Act (720 ILCS
646/55(a)(1), (a)(2)(F) (West 2012)). The defendant filed a motion to quash his arrest and
suppress evidence, contending, inter alia, that the search of the vehicle in which he was riding
and the attaché bag in which the methamphetamine was found was conducted without consent,
articulable factual justification, or probable cause. Following an evidentiary hearing, the trial
court granted the defendant’s motion, finding that the defendant was arrested without probable
cause and, as a consequence, the seizure of the methamphetamine was unlawful. The State
filed a motion for reconsideration of the trial court’s order, which was denied. Thereafter, the
State filed a notice of substantial impairment and a notice of appeal. For the reasons which
follow, we reverse the trial court’s order granting the defendant’s motion to quash arrest and
suppress evidence.
¶2 When reviewing a ruling on a motion to suppress evidence, we accord great deference to
the trial court’s factual findings, which we will reverse only if those findings are against the
manifest weight of the evidence; however, we review de novo the ultimate question of the legal
challenge to the trial court’s ruling. People v. Sutherland, 223 Ill. 2d 187, 196-97 (2006).
¶3 After conducting an evidentiary hearing on the defendant’s motion to quash arrest and
suppress evidence, the trial court found the testimony of the State’s witnesses to be credible.
The following factual recitation is based upon that testimony.
¶4 On February 26, 2013, Chicago police officers and agents of the federal Drug Enforcement
Administration (DEA) were assigned to the DEA Airport Task Force Group. On that date,
Chicago Police Sergeant Dennis O’Connor received a telephone call from DEA Special Agent
Leach stationed in San Diego, California, informing him that information had been received
from a confidential informant that a woman named Valerie Santos “would be transporting
narcotics from San Diego to Chicago O’Hare Airport.” Agent Leach did not disclose the date
that the transportation was to take place or the type of narcotics involved. He did, however,
inform Sergeant O’Connor that Santos would be staying at the Whitehall Hotel located at 105
East Delaware Place in Chicago but did not specify the date that she would be checking in.
Agent Leach never gave Sergeant O’Conner any information as to the reliability of the
confidential informant.
¶5 Sergeant O’Connor relayed the information that he received to DEA Agent Glynn, DEA
Agent Aristidis Karabinas, and Chicago Police Officer Raymond Caballero; all of whom are
members of the DEA Airport Task Force Group. Based upon that information, Agents Glynn
and Karabinas and Officer Caballero went to the Whitehall Hotel to watch for Santos. Upon
arrival at the hotel, Agent Karabinas ascertained from the hotel manager that a Ms. Santos was
registered for that day. At approximately 4:45 p.m., a taxi arrived at the hotel and a woman
exited. Agent Karabinas recognized the woman as Valarie Santos from a picture he had
received from the DEA’s California office. At the time that Santos exited the taxi, she was
carrying a black attaché bag. Agent Karabinas stationed himself in a room across from the one
in which Santos was registered, while Agent Glynn and Officer Caballero remained in the
hotel lobby. From his vantage point, Agent Karabinas was able to see Santos enter her hotel
room carrying the black attaché bag. About two hours later, Agent Karabinas saw a man and a

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 woman enter Santos’s room where they remained for several minutes. When the man left
Santos’s room, he was carrying the black attaché bag. Agent Karabinas telephoned the other
members of his team who were conducting surveillance in the hotel lobby and informed them
that a man and a woman had entered Santos’s room and left several minutes later. The man and
the woman were observed leaving the hotel and getting into a black Cadillac Escalade. The
woman drove the vehicle while the man rode in the passenger’s seat. Agent Karabinas later
learned that the woman was Erica Armas and the man was the defendant.
¶6 Agent Glynn and Officer Caballero got into separate vehicles and followed the Cadillac
Escalade as it went west from the hotel to the Dan Ryan Expressway and then proceeded south
on the Stevenson Expressway. The Cadillac exited the expressway at Kedzie Avenue and
travelled northbound. Using the Chicago police radio frequency, one of the members of the
DEA team who was following the Cadillac requested assistance from a marked police vehicle
in stopping the Cadillac. At approximately 7:40 p.m. the Cadillac reached 33rd Street and was
seen by uniformed Chicago police officers Perez and Sanchez, who were patrolling in a
marked police vehicle. Officer Perez stated that he had heard a broadcast over the police radio
that Chicago police officers and DEA agents were following a black Cadillac Escalade that
was “suspected of having narcotics in it.” Officer Sanchez, who was driving, made a U-turn
and followed the Cadillac northbound on Kedzie Avenue. After about two blocks, officers
Sanchez and Perez stopped the Cadillac for traveling too fast for conditions. The officers
exited their marked patrol car and approached the Cadillac. Officer Sanchez spoke to the
driver, Armas, and obtained her driver’s license and insurance card. Officers Sanchez and
Perez then returned to their vehicle.
¶7 Officer Caballero stopped his vehicle directly behind the marked squad car and approached
the Cadillac. He informed Armas that they were conducting a narcotics investigation and asked
her if they could search the vehicle. According to Officer Caballero, Armas gave him oral
permission to search the Cadillac. Armas and the defendant exited the Cadillac, and the
defendant was immediately handcuffed and placed in the marked police car.
¶8 Approximately five minutes after the Cadillac Escalade was pulled over, Agent Glynn, a
DEA narcotics canine officer, arrived on the scene with a dog that is certified to detect
narcotics, including methamphetamine. Officer Caballero informed Agent Glynn that Armas
had given her consent for a search of the Cadillac. Agent Glynn had the dog search the exterior
of the Cadillac and then allowed the dog to go inside of the vehicle. The dog gave an alert for
the presence of narcotics upon sniffing the black attaché bag, which was located on the rear
seat of the vehicle. The bag was removed from the vehicle, opened, and a powdery substance
was found inside. According to Officer Caballero, it was at that time that Armas and the
defendant were placed under arrest. After being tested, the powdery substance in the attaché
bag was found to be methamphetamine.
¶9 The defendant testified at the evidentiary hearing. He admitted that he and Armas went to
Santos’s hotel room and that he left carrying the black attaché bag, which he placed in the rear
of the Cadillac Escalade. He stated that, at the time that the vehicle was stopped by the police,
Armas was driving and he was seated in the front passenger’s seat. According to the defendant,
as soon as the Cadillac was stopped, he was handcuffed and taken to a marked police car. He
testified that he could not hear any of the conversations that Armas had with the police officers.
The defendant stated that he never gave the police permission to search the attaché bag.

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 Additionally, he admitted that he was not the owner of the Cadillac Escalade and that Armas
owned the vehicle.
¶ 10 Following the evidentiary hearing, the trial court found that the police officers “had a
reasonable articulable suspicion to believe that the defendant and others were involved in
criminal narcotics activity and that Ms. Armas was driving too fast for road conditions.” The
trial court concluded that the officers were “justified in stopping the vehicle, detaining the
occupants, and having them step out of the vehicle to conduct a Terry investigation.” The trial
court also found that the officers obtained valid consent from Armas to search her vehicle and
that the dog’s alert upon sniffing the attaché bag was “sufficiently reliable to establish probable
cause to believe that the bag contained illegal drugs and, therefore, the officers were justified in
searching the bag, seizing the drugs, and arresting the defendant and Ms. Armas.” The trial
court also found that the defendant’s testimony regarding his detention and custody after the
Cadillac was stopped was credible and, based on that testimony, found that the defendant
remained handcuffed and confined in a police car from the time that he was removed from the
Cadillac. The trial court concluded that the defendant was arrested without probable cause
prior to the dog’s alert to the presence of narcotics in the attaché bag and, therefore, “the
seizure was unlawful.” As a consequence, the trial court granted the defendant’s motion to
quash arrest and suppress evidence.
¶ 11 In urging reversal of the trial court’s order granting the defendant’s motion, the State
makes a number of arguments. However, in its brief, the State has commingled arguments
which should have been addressed separately, leaving us to unravel the package and attempt to
address each of the arguments in a logical sequence.
¶ 12 We first address the State’s contention that the trial court erred in finding that the defendant
was under arrest when he was handcuffed and confined in a police car immediately after being
removed from the Cadillac. The State contends that, assuming the defendant was handcuffed
when he exited the Cadillac, his detention was incidental to a valid investigatory stop (see
Terry v. Ohio, 392 U.S. 1 (1968)), and the fact that he was handcuffed did not transform the
Terry type stop into an arrest (People v. Colyar, 2013 IL 111835, ¶ 46; see also People v.
Waddell, 190 Ill. App. 3d 914, 928 (1989)). The State argues that, because, as the trial court
found, the officers had reasonable suspicion that the defendant was involved in criminal
narcotic activity, they were justified in handcuffing the defendant as a safety precaution
without transforming his temporary detention incident to a valid traffic stop into an arrest. We
agree.
¶ 13 The fourth amendment to the United States Constitution (U.S. Const., amend. IV) and
article I, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6) guarantee
the right of individuals to be free from unreasonable searches and seizures. Generally, the
seizure of an individual without a warrant is valid only if supported by probable cause. People
v. Jackson, 232 Ill. 2d 246, 274-75 (2009). However, a limited exception exists when, under
appropriate circumstances, a police officer briefly stops a person for investigatory purposes.
Terry, 392 U.S. at 21-22. Such investigatory stops have come to be known as Terry stops. A
police officer may briefly detain an individual for questioning if the officer reasonably believes
that the person has committed, or is about to commit, a crime. Id. at 22.
¶ 14 The decision to stop a motor vehicle is reasonable when the police have probable cause to
believe that a traffic violation has been committed. Whren v. United States, 517 U.S. 806, 810
(1996). As the occupants of a motor vehicle which is stopped by the police are considered to

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 have been seized within the meaning of the fourth amendment at the moment that the vehicle is
stopped (Maryland v. Wilson, 519 U.S. 408, 413-14 (1997)), their detention during the traffic
stop is subject to the requirement of reasonableness. Whren, 517 U.S. at 809-10. The
reasonableness of a traffic stop and the resulting detention of its occupants are analyzed
pursuant to the principles articulated by the Supreme Court in Terry. People v. Gonzalez, 204
Ill. 2d 220, 226 (2003). Consequently, detention following a valid traffic stop must be limited
in both scope and duration. People v. Johnson, 408 Ill. App. 3d 107, 113 (2010).
¶ 15 The defendant does not contend, nor could he, that the initial stop of the vehicle in which
he was riding was unreasonable. As the trial court found, the police were justified in stopping
the vehicle based on their observation that it was being driven too fast for conditions.
Nevertheless, the actions of the police after stopping the Cadillac must have been reasonably
related in scope to the circumstances which justified the vehicle being stopped in the first
place.
¶ 16 Handcuffing is the type of activity that may convert an otherwise lawful investigatory stop
into an arrest because it heightens the intrusiveness of a temporary detention. People v. Wells,
403 Ill. App. 3d 849, 857 (2010). However, the use of handcuffs does not, by itself, convert a
lawful investigatory stop into an arrest. People v. Arnold, 394 Ill. App. 3d 63, 71 (2009).
¶ 17 In this case, not only was the vehicle in which the defendant was riding stopped based on
the commission of a traffic violation, but the trial court also found that the officers had reason
to believe that the defendant was involved in criminal narcotics activity. The defendant,
however, appears to dispute the trial court’s finding in that regard. We believe that the trial
court’s finding is supported by the evidence introduced at the evidentiary hearing.
¶ 18 A Terry type stop is permissible when the police have reasonable suspicion, based upon
specific articulable facts, that a person has committed a crime. People v. Croft, 346 Ill. App. 3d
669, 674-75 (2004). In determining whether there was a reasonable suspicion of criminal
activity, we consider the totality of the circumstances. Id. at 675.
¶ 19 In this case, Sergeant O’Conner received a telephone call from DEA Agent Leach who
stated that that he had received information from an unidentified confidential informant that
Valerie Santos would be transporting narcotics to Chicago from San Diego and that she would
be staying at the Whitehall Hotel. No date was given for the transportation or when Santos
would be at the hotel. On that same date, DEA agents and a Chicago police officer acting on
that information went to the Whitehall Hotel and conducted surveillance. They ascertained that
a Ms. Santos was registered as a guest at the hotel. Valarie Santos was seen entering the hotel
carrying a black attaché bag and going to her room. Approximately two hours later, Armas and
the defendant were seen entering Santos’s room and exiting several minutes later with the
defendant carrying the black attaché bag. Thereafter, the defendant and Armas were observed
getting into a Cadillac Escalade into which the defendant had placed the attaché bag.
¶ 20 The information relayed to Sergeant O’Conner standing alone did not demonstrate the
basis of the confidential informant’s knowledge or the veracity of the information. Therefore,
without more, the information relayed by Agent Leach was insufficient to provide the
reasonable suspicion necessary to support a Terry type stop of the vehicle in which the
defendant was riding. The fourth amendment requires more than some minimal level of
objective justification for making a Terry stop. Immigration & Naturalization Service v.
Delgado, 466 U.S. 210, 217 (1984). However, independent corroboration of significant
aspects of the informant’s predictions can impart a degree of reliability on the informant’s

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 other allegations sufficient to support an investigative stop. Alabama v. White, 496 U.S. 325,
330-31 (1990). Even corroboration of innocent details can be sufficient to establish reasonable
suspicion of criminal activity. See Illinois v. Gates, 462 U.S. 213, 243-46 (1983); Draper v.
United States, 358 U.S. 307, 309-13 (1959).
¶ 21 In addition to reporting that Valerie Santos would be transporting narcotics from San
Diego to Chicago, the confidential informant predicted that Valerie Santos would be staying at
the Whitehall Hotel. In possession of a picture of Valarie Santos, which had been supplied by
the DEA’s California office, DEA agents and a Chicago police officer went to the Whitehall
Hotel, verified that a Ms. Santos was registered as a guest, and observed her enter the hotel and
go to her room carrying a black attaché bag. Two hours after Santos was observed entering her
room, the defendant and Armas were seen going into Santos’s room and exiting several
minutes later with the defendant carrying a black attaché bag like the one that Santos had when
she entered the hotel. Thereafter, the defendant was observed placing the attaché bag in the
Cadillac Escalade.
¶ 22 As was the case in Alabama v. White, the confidential informant in this case predicted
future actions of a third party. Only someone familiar with Santos’s affairs could have
predicted that she would be in Chicago and staying at the Whitehall Hotel; information which
the police corroborated. In addition to the corroboration of Santos’s predicted activity, the
officers observed the defendant exiting Santos’s hotel room after a very brief stay carrying a
black attaché bag like the one Santos entered the hotel with. Under a totality of the
circumstances analysis, we believe that the facts of this case support the trial court’s finding
that the officers had a reasonable articulable suspicion that the defendant was involved in
criminal narcotics activity, justifying an investigative stop of the vehicle in which the
defendant was riding.
¶ 23 In Waddell, 190 Ill. App. 3d at 927, the court held that handcuffing the defendant in that
case following a traffic stop did not convert a lawful Terry stop into an arrest as “there is
nothing unreasonable about police officers being apprehensive concerning the risks inherent in
interdicting drug traffic.” We find no reason to deviate from that rationale. We believe,
therefore, that the trial court erred in finding that the defendant was arrested prior to the dog’s
narcotics alert based solely upon the fact that he was handcuffed and placed in a police car
upon exiting the Cadillac.
¶ 24 Having determined that the initial stop of the vehicle in which the defendant was riding was
justified both by reason of the traffic violation which the police observed and the reasonable
suspicion which the officers had that the occupants were engaged in criminal narcotics activity
and having found that the defendant was not under arrest solely by reason of having been
handcuffed and placed in a police car, we must next address the question of whether the
resulting detention of the defendant prior to the discovery of the methamphetamine was
reasonable in both scope and duration.
¶ 25 The United States Supreme Court has held that an otherwise lawful seizure of an individual
during a traffic stop becomes an unlawful detention if it is prolonged beyond the time
reasonably required to complete the purpose of the seizure. Illinois v. Caballes, 543 U.S. 405,
407 (2005). Relying upon the holding in Rodriguez v. United States, 575 U.S. ___, 135 S. Ct.
1609 (2015), the defendant argues that his roadside detention following the traffic stop of the
vehicle in which he was riding was unreasonably prolonged in order to conduct the dog sniff
and, as such, the search of the attaché bag and the seizure of the contents thereof violated the

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 constitutional proscription against unreasonable searches and seizures. We believe that the
defendant’s reliance upon the holding in Rodriguez is misplaced.
¶ 26 The question resolved in Rodriguez was “whether police routinely may extend an
otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog
sniff.” (Emphasis added.) Id. at ___, 135 S. Ct. at 1614. And, although the Supreme Court held
that a “traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required
to complete th[e] mission’ of issuing a warning ticket” (id. at ___, 135 S. Ct. at 1614-15
(quoting Caballes, 543 U.S. at 407)), the Supreme Court declined to address the question of
whether the police had reasonable suspicion of criminal activity which justified the detention
of the defendant after the tasks attendant to the traffic stop had been completed (id. at ___, 135
S. Ct. at 1616-17).
¶ 27 In this case, Agent Glynn arrived on the scene about five minutes after officers Perez and
Sanchez had stopped the vehicle in which the defendant was riding. The uniformed officers
obtained Armas’s driver’s license and insurance card and returned to their vehicle. Thereafter,
Officer Caballero requested that Agent Glynn have the dog perform a sniff investigation of the
Cadillac. Without more, a strong argument could be made that the defendant’s detention was
prolonged beyond the time necessary for officers Sanchez and Perez to complete their
traffic-related tasks, rendering his continued detention an unreasonable seizure. This is
especially true in light of the fact that no traffic citation or warning was issued to Armas.
However, the officers in this case also had a reasonable suspicion that the defendant was
engaged in criminal narcotics activity. In addition, Armas, the owner of the Cadillac Escalade
consented to a search of the vehicle. Under these circumstances, we do not believe that the
defendant’s continued detention for the five minutes that it took for Agent Glynn to arrive on
the scene with the dog and the time it took to complete the dog sniff exceeded the bounds of
reasonableness to the point of becoming unlawful.
¶ 28 The defendant also argues that the trial court’s suppression of the evidence seized from the
attaché bag should be affirmed because it is the product of an illegal search. The defendant
contends that he had a legitimate expectation of privacy in the contents of the attaché bag
which did not evaporate when he became a passenger in the vehicle in which it was found. He
asserts that the police knew that he had been in possession of the attaché bag and that he never
gave consent to it being searched. For the reasons which follow, we find no merit is the
argument that the search of the attaché bag violated the defendant’s constitutional protection
from unreasonable searches.
¶ 29 As noted earlier, both the United States Constitution and the Illinois Constitution of 1970
protect individuals from unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
Const. 1970, art. I, § 6. However, as the defendant has not argued that our state constitution
provides broader protection than the fourth amendment to the United States Constitution, we
will confine our analysis to fourth amendment jurisprudence. See Sutherland, 223 Ill. 2d at
229.
¶ 30 We begin our analysis with the search of the vehicle in which the attaché bag was located.
An individual may consent to a search of her property conducted without a warrant (People v.
Phillips, 264 Ill. App. 3d 213, 217 (1994)), and fourth amendment guarantees are not
implicated when police conduct a search pursuant to a voluntary consent (Ohio v. Robinette,
519 U.S. 33, 40 (1996); People v. Cardenas, 237 Ill. App. 3d 584, 587 (1992)). In this case, it
was the defendant’s testimony that the Cadillac in which he was riding belonged to Armas, and

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 the testimony at the evidentiary hearing supports the trial court’s finding that the police
obtained valid consent from Armas to search the vehicle. The defendant has not argued before
this court that he had any legitimate expectation of privacy in the Cadillac itself; nor could he.
He did not own the vehicle and there is no evidence in the record before us that he had any
possessory interest in the vehicle, had previously used the vehicle, or that he had a right to
control others use of the vehicle. Consequently, he could not challenge the search of either the
exterior or interior of the Cadillac.
¶ 31 Pursuant to the consent received from Armas, Agent Glynn had the dog sniff both the
outside and inside of the Cadillac. Upon sniffing the attaché bag located within the vehicle, the
dog alerted to the presence of narcotics.
¶ 32 Having obtained Armas’s consent to search the vehicle, the dog sniff itself was not a search
subject to the fourth amendment unless the sniff itself infringed upon the defendant’s
constitutionally protected legitimate interest in privacy. Caballes, 543 U.S. at 408-09.
However, the possession of narcotics cannot be deemed “legitimate,” and as a consequence,
the dog sniff in this case which only revealed the presence of narcotics did not compromise any
legitimate privacy interest possessed by the defendant. Id. Once the dog alerted the police to
the presence of narcotics in the attaché bag, they had probable cause to search the bag, which
revealed the methamphetamine located therein. United States v. Carrazco, 91 F.3d 65, 67 (8th
Cir. 1996).
¶ 33 Based upon the foregoing analysis, we find that the vehicle in which the defendant was
riding was lawfully stopped, he was lawfully detained, and the search of the attaché bag in
which the methamphetamine was found was conducted after the police had probable cause to
believe that narcotics were located therein. We conclude, therefore, that the trial court erred in
granting the defendant’s motion to quash arrest and suppress evidence.
¶ 34 Although we have concluded that the trial court erred in finding the defendant was arrested
without probable cause when he was handcuffed and placed in a police car before the dog
alerted to the presence of narcotics in the attaché bag, we would still reverse the trial court’s
order even if the defendant had been unlawfully arrested.
¶ 35 When the arrest of an individual is tainted by illegality, evidence obtained as a result of the
illegal arrest may be subject to the exclusionary rule and suppressed. People v. Johnson, 237
Ill. 2d 81, 92 (2010). However, a determination that an individual has been unlawfully arrested
does not necessarily resolve the issue of whether subsequently obtained evidence is
admissible. Id. The relevant inquiry is whether the evidence was derived from the illegal arrest
or whether it was obtained by means sufficiently distinguishable from the taint of the illegal
arrest. Id.; People v. Lovejoy, 235 Ill. 2d 97, 130 (2009).
¶ 36 In this case, the Cadillac in which the defendant was riding was lawfully stopped. After the
owner of the vehicle, Armas, gave consent for a search of the vehicle, a narcotics-detection dog
sniffed the exterior and interior of the Cadillac and alerted to the presence of narcotics in the
attaché bag, giving the police probable cause to search the bag. It is clear that the
methamphetamine found in the attaché bag was not obtained as a result of the defendant’s
alleged arrest and should not have been suppressed. See Johnson, 237 Ill. 2d at 92-93.
¶ 37 For the reasons stated, we reverse the trial court’s order granting the defendant’s motion to
quash arrest and suppress evidence and remand the matter for further proceedings consistent
with the opinions expressed herein.

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¶ 38 Reversed and remanded.

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