dissenting:
I respectfully dissent and would affirm the decision of the circuit court.
A police officer who has stopped a vehicle for a traffic violation does not have unbridled authority to order and conduct chemical tests. The officer may not search the vehicle, absent probable cause or consent. The officer may not force the driver, and certainly not the passengers, to submit to a Breathalyzer test, although the driver’s failure to do so will be admissible in a DUI prosecution. People v. Jones, 214 Ill. 2d 187, 201, 824 N.E.2d 239, 247 (2005). However, the officer is not required to ignore things in plain view. “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.
The circuit court gave a lot of thought to this case and set out its reasoning in a carefully written order:
“Having determined that the stop was proper, the issue really boils down to whether or not the defendant’s [flourth [a]mendment rights were violated by the officers instructing her to close the truck’s windows and doors and turn the blowers on high. This seems to be a case of first impression. There was no basis for the officers to search the truck before Max alerted on the truck. There was no consent to search prior to Max’s alert, and in fact, no consent to search the truck was ever requested by the officers. There was no probable cause to search the truck before Max alerted.
It is important to note that the length of the stop was not unreasonably extended by virtue of involving the canine officer in this stop. Officer Kent arrived with Max within approximately three minutes of Officer Tyler stopping the car, and Officer Tyler was still writing the parking ticket when Max alerted on the truck. (See People v. Brownlee, 186 Ill. 2d 501[, 713 N.E.2d 556] (1999), People v. Gonzalez, 204 Ill. 2d 220[, 789 N.E.2d 260] (2003), and People v. Bunch, 207 Ill. 2d 7[, 796 N.E.2d 1024] (2003).)
Illinois v. Caballes, 543 U.S. 405[, 160 L. Ed. 2d 842, 125 S. Ct. 834] (2005), holds that a dog sniff for drugs does not change the character of an already proper stop and that such a dog sniff does not infringe on a constitutionally protected right of privacy. Therefore, it is not a search subject to the [fjourth Amendment. A drug dog’s sniff reveals only the presence of contraband, and people have no legitimate interest in possessing contraband. Thus, no legitimate privacy interest is compromised by a drug dog’s sniff. Caballes, 543 U.S. at 408[, 160 L. Ed. 2d at 897, 125 S. Ct. at 837-38].
It seems important to note that in Caballes and People v. Driggers, 222 Ill. 2d 65[, 853 N.E.2d 414] (2006), another drug dog case in which the sniff was not found to implicate the [fjourth Amendment, the sniffs occurred on the exterior of the vehicle. In the case at hand, Max alerted on the defendant’s truck from the outside of the truck, but he had some help. The drug-tainted air from the interior was being forced out of the truck by the turned-up blowers. The blowers were turned up by the defendant, but only upon the demand of the officers. The State would argue that since the defendant does not have a constitutionally protected interest in contraband or its odor, the distinction makes no substantive difference. The State argues that since the police had the right to direct the defendant to get out of her truck, then the air inside is exposed by the opening of the door. If Max had alerted on the truck from the exterior of the truck through the open door, then Caballes and Driggers would clearly apply. However, that is not all that happened in this case.
While, again, there does not appear to be a case exactly on point, the court finds the case of [United States] v. Hutchinson, [471] F. Supp. 2d [497] (M.D. Pa. [2007]), to be helpful in addressing the issue. Hutchinson contains a rather thorough discussion of a line of cases that holds that when a drug dog enters a vehicle through an already opened door or window of its own accord, driven by its natural instincts, that the dog’s entry into the vehicle does invalidate an otherwise lawful sniff. (Among the cases cited are two supplied in this case by the defense: [United States] v. Stone, 866 F.2d 359 ([10th Cir.] 1989), and [United States] v. Winningham, 140 F.3d 1328 ([10th Cir.] 1998).) In Winningham, the drug dog alerted after entering the van through a door opened by the defendant at the direction of the officer making a lawful stop. The court held that the defendant had not given consent for the dog to enter the van, and therefore the resulting discovery of drugs was in violation of the [Qourth [ajmendment. The court in Hutchinson used the ‘plain view’ and ‘plain smell’ doctrines in its analysis of the impact of a drug dog’s entry into a vehicle to determine the legality of the seizure. ‘[T]he majority of federal courts *** have concluded that canine sniffs of the interior of a vehicle or other container are lawful, but suggest that such interior sniffs may become constitutionally infirm in the event that the interior sniff is accomplished or facilitated by the officer-handler.’ [Hutchinson, 417 F. Supp. 2d] at [508]. ‘Notably, the Supreme Court has held that where an officer who is lawfully present at [a] particular location moves or manipulates an object seen in plain view, and where the officer has no probable cause to search the item, the act of moving or manipulating the object constitutes an unreasonable search under the [fjourth [a]mendment that is not subject to the plain[-]view doctrine.’ [Hutchinson, 471 F. Supp. 2d] at [509]. The court in Hutchinson goes on to hold that ‘Where an officer opens a vehicle or other container to assist a canine in detecting the presence of contraband, and where the canine has not already positively alerted or indicated that it has detected the scent of contraband within the container, it seems logical to conclude that the “plain smell” doctrine should have no application, since the positive sniff that results was presumably aided or achieved impermissibly by the officer’s manipulation of the container.’ [Hutchinson, 471 F. Supp. 2d at 510]. Courts in at least two other states have ruled, consistent with this reasoning, that when an officer encourages a drug dog to enter a vehicle when it had not first alerted on the vehicle’s exterior, that the dog’s actions constituted an unlawful search. (See State v. Warsaw, 125 N.M. 8, [12,] 956 P.2d 139[, 143] (1997), and State v. Freel, 29 Kan. App. 2d 852, [860,] 32 P.3d 1219[, 1225] (2001).)
While again not directly on point, the Hutchinson logic seems applicable to the case at hand. The officers had no probable cause to enter the vehicle before Max alerted. By requiring the defendant, without her consent, to close the doors and windows and turn the blower on high, the officers in effect moved and manipulated the air within the vehicle that would not otherwise have been subject to their plain view or smell. Max could not lawfully be where the officers could not lawfully be. The officers could not lawfully be in the vehicle, and therefore Max could not lawfully be in the vehicle. In order for the ‘plain view’ or ‘plain smell’ doctrines to be applicable, the officer, and in this case Max, had to be in a place where they could lawfully be before they could lawfully view or smell. The court recognizes that Max was still outside the defendant’s truck when he alerted, but the analogy from Hutchinson seems applicable and logical. In effect, Max was placed inside the vehicle by the officers. Applying the Hutchinson logic, the court finds that the directing of the defendant to close the truck’s windows and doors and to turn the blower on high turned the dog sniff into an unreasonable search under the [fjourth [a]mendment. Therefore, the court grants the defendant’s motion to suppress evidence, and all evidence seized from the defendant’s truck is hereby suppressed.”
We should affirm.