dissenting:
The majority affirms the drug conviction of Andres Roa, rejecting his challenge to the denial of his motion to suppress evidence. For the reasons that follow, I dissent from that decision.
I have no quarrel with the author’s thorough and scholarly review of the law relevant to searches during or following traffic stops. I completely agree that there was a second seizure that has to be constitutionally justified. Nor do I have any disagreement with the law relied upon by the special concurrence. I do, however, have significant problems with the majority’s application of the law on which it relies to the facts of this case as developed at the hearing on the motion to suppress and at trial.
The issue in this case is the propriety of the search of defendant’s car. There are three questions to be addressed in resolving that issue. First, did the officer have probable cause to expand the scope of the stop from a simple traffic offense to a drug investigation? Second, did defendant give consent to search and, if so, what was the extent of the consent? Third, if he gave consent to search “the vehicle” rather than only “the trunk,” did the level of intrusiveness exceed a reasonable expectation of the scope of the consent?
Factually, although defendant contends that he was not speeding, it is nonetheless undisputed that Roa was driving, apparently alone, on Interstate 80 in February 2004 and that he was stopped by Sergeant Floyd Blanks, who testified that, according to radar, defendant was exceeding the speed limit by six miles per hour. It is also undisputed that Roa produced his driver’s license, vehicle registration, and proof of insurance. Nothing in the record indicates that this was a rental car or that defendant was otherwise not its owner. It is further undisputed that after checking defendant’s documents, Blanks issued him a written warning and returned the documents, presumably freeing him to leave. However, the officer then stopped him, asked several questions and then requested permission to search something — Roa says it was only the trunk and Blanks says the vehicle.
I. Was the Search of Roa’s Vehicle Constitutionally Justified?
The first question is what factors Blanks believed gave him reasonable, articulable suspicion necessary to effect a second seizure of Roa and to search his car.
Before looking at the second seizure, however, I would like to briefly address the first seizure. I suggest that Sergeant Blanks did not stop Andres Roa for driving six miles over the speed limit because he wanted to keep the highway safe for other motorists. The fact is that he is a drug interdiction officer and as such he cruises the interstate trolling for drug offenders. I would further suggest that he stopped Roa because he had decided he was such an offender and the minor speeding was nothing more than subterfuge from the outset. I believe this conclusion is implicit in and can be reasonably inferred from the totality of Sergeant Blanks’ testimony.
I mention this conclusion not because it casts any doubt on the validity of the original traffic stop — technically even one mile per hour over the speed limit constitutes the requisite probable cause. It could, however, have a direct bearing on the second seizure. The high courts of our state and country have directed that when we assess whether an officer has a reasonable, articulable suspicion justifying a search, we must consider the “totality of the circumstances.” The majority has set out in its decision some of the cases that so instruct. Indeed, the majority has emphasized that the totality of the circumstances is the basis for its decision to affirm the trial court’s denial of Roa’s motion to suppress.
It is surely a major part of the totality of the circumstances if the officer effecting the traffic stop is not observing the defendant in an objective manner while completing the stop and simply happens to see, hear or smell something that moves him from neutrality or objectivity to suspicion. Quite to the contrary. He is viewing the defendant and the vehicle with the purpose of finding an excuse to search and of vindicating his original belief that the driver is a drug courier. With that mindset, the officer searches for any excuse to extend the seizure and effect a search.
I believe the framers of our constitution, while they were unaware of the war on drugs, were very familiar with the psychology of preconceptions and bias and that it was this awareness that led them to require a warrant, issued by a neutral magistrate, before government officers could proceed to search or to seize. The wisdom of that protection can be seen in this case and cases like it. For an officer already convinced that he is dealing with a drug courier, objectively innocent behavior morphs into indicators of criminal behavior: nervousness and fumbling can easily become “extreme” or “excessive,” a simple air freshener becomes a masking agent and magically provides reasonable articulable suspicion of drug dealing. In his testimony, Sergeant Blanks described these and other perfectly innocent factors that have been given a sinister patina to justify drug searches.
He testified that he has 17 years of experience, that he is a certified drug interdiction instructor, and that he teaches team members — as he himself was taught — to look for certain indicators of criminal activity:
“There are a number of things that we are trained to observe, such as third-party vehicles, vehicles rented by someone else, the odor of air freshener and masking agents in the vehicle, a vehicle that looks lived in, a vehicle with numerous energy drinks or coffee cups showing they’ve been driving all night, cigarettes and nervousness, and I could go on and on, sir.”
At another point in his testimony, he amplified on the indicators of nervousness (mumbling, fumbling, physical signs of stress) and indicated that he believed the presence of any one of the factors would be sufficient to excite suspicion and justify a search.
With specific reference to Roa, his testimony was: “with [defendant’s] nervousness, the odor of air freshener, I knew I was going to try to obtain permission to search that vehicle. I knew from my training and experience that something was amiss, something was wrong ***.” Sergeant Blanks reiterated those two bases for searching Roa’s car at other times during his testimony.
Plainly, the trial court accepted the officer’s explanations and assurances without critical thought. Here I quote from the majority opinion:
“The trial court did not look to these two factors in isolation. Rather, the trial court found Sergeant Blanks had a reasonable, articulable suspicion ba.sed on a totality of the circumstances. Those circumstances included defendant exhibiting an unusual level of stress during the traffic stop, which did not subside even after defendant learned he was only being issued a warning ticket. That unusual level of stress, combined with Blanks’ observation of a new air freshener, and taking into account Sergeant Blanks’ vast training and experience in drug interdiction, was sufficient to provide Blanks with a reasonable, articulable suspicion that criminal activity was afoot. The court reasoned:
I have to look at it as an officer with Trooper Blanks’ experience would look at it. *** [Blanks] has 17 years of experience or more. It’s not like *** somebody that is a rookie that just came on. And I have to look at that. That’s the totality of the circumstances. I have a trooper here that has been — has significant training, and I’m well aware [Blanks] has been in court many, many times in these situations, and obviously from his testimony here, [Blanks] knows what he’s doing. He can describe the — the scent of — of cocaine. He can describe masking agents and *** he’s very well versed in — in cocaine trafficking or in controlled substance trafficking.’ ” (Emphasis added.) 377 Ill. App. 3d at 200.
While fully cognizant of the United States Supreme Court’s criticism that examination of the individual factors relied upon by police officers is inconsistent with a totality-of-the-circumstances analysis (United States v. Arvizu, 534 U.S. 266, 274, 151 L. Ed. 2d 740, 750, 122 S. Ct. 744, 751 (2002)), I would still like to start by looking at the validity (or lack thereof) of the factors identified by Sergeant Blanks, any one of which would, he asserts, lead him to search.
Third-party vehicles, whether rented/borrowed by the driver, or rentedlowned by someone else. This would appear to include every vehicle on the roads that is not actually owned by the person driving it. There are millions of such vehicles being driven on the highways and byways of this country every year. Apparently those driving them or any borrowed car are at risk, once having been stopped, of being searched by drug interdiction officers (or the police generally) because of the vehicle they are driving.
The odor of air freshener and masking agents in the car. There are surely as many legitimate reasons for using air freshener in your car as there are drivers. And, if you are a routine user of them, it is inevitable that you will have a new, strongly scented one from time to time. Many car wash services spray or hang air freshener as a routine part of the cleaning package. Some car lovers just want their cars to smell special. Others may want to cover the odors of, just to suggest a few, gym shoes, cat urine, baby spit-up, spilled milk, something unpleasant stepped in by accident, cheap gasoline. All of these purposes, whether practical or self-indulgent, could, according to Blanks, subject the driver, without anything more, to a search of their vehicles.
A vehicle that looks lived in. There are many people who, despite being otherwise neat and orderly, keep junky cars. A random search of vehicles could disclose clothing and footwear, outerwear, umbrellas, blankets, pillows, tools, books and multiple forms of electronic entertainment, exercise equipment, pet needs, auto maintenance and cleaning supplies, kleenex, drinks and food — and absolutely no drugs. But the vehicles would, in three words, look lived in.
A vehicle with numerous energy drinks or coffee cups, showing they have been driving all night. Thousands (perhaps tens or hundreds of thousands) of trip-takers, including commuters and vacationers, plan their trips strategically to avoid hitting urban areas or known construction zones during rush times, or in order to arrive at their destinations within a certain time frame. Such planning not infrequently dictates getting on the road in the wee, small hours of the morning or driving all night. If that is not the usual time for starting your day (or even if it is), you could need copious amounts of coffee and energy drinks in order to remain wakeful and alert. It is unlikely that the vast majority of these people would be carrying drugs.
A vehicle with cigarettes. According to the American Heart Association, there are roughly 46 million cigarette smokers in the United States, some of whom are chain smokers, www.americanheart.org/ presenter.jhtml?identifier=4731.com (last visited October 11, 2007). To my knowledge there is not yet a law that prohibits smoking in cars.
Nervousness (or ‘ ‘abnormal” nervousness). I strongly suspect the standard for “normal” nervousness is respectable, mature, middle-class, white Anglo-Saxon males or females, including judges and fellow police officers, stopped for minor traffic offenses. Indeed, the trial court suggested as much, stating:
“It [a cited case] said nervousness on the part of the defendant when a police officer approaches is not enough to create reasonable suspicion. And that’s true. I mean, normally people are nervous, anyway. I think there was a good explanation here, and it makes sense, that anybody is going to be nervous. I mean, it could be a judge, it could be a public defender, a prosecutor, anybody that gets stopped is nervous, because there’s a possibility they’re going to get a ticket, and it’s unusual to be stopped by somebody carrying — in a uniform and carrying a gun.
What I think was interesting here, and I have to look at, is normally — I’ve been in this situation — once you’ve been stopped for a minor traffic violation and the guy, the police officer, says, ‘Hey, I’m just going to give you a warning,’ you have a tendency to relax and say, ‘Whew, boy, I’m sure glad I didn’t get a ticket.’ But that wasn’t the situation here. It appeared here that Mr. Roa continued to be nervous, even after he was told he was going to get a warning ticket.”
“Extreme” nervousness in the face of police detention would probably be the norm for anyone else, especially an African-American, Hispanic, Asian, or Middle Eastern driver, who is moderately intelligent and keeps up with current events. They fear, not unreasonably, abuse or injury at the hands of the police. It is naive, at best, to think that that kind of fear or nervousness will be alleviated by the simple expedient of telling the driver, “I’m only going to give you a warning.”
As judges, we get a false sense of the reliability of these and other indicators that drug interdiction teams — and police officers generally — use in profiling drivers. The only time these stops come to our attention is when contraband is actually found during a search of the vehicle. It tends to appear, therefore, that the law enforcement officers are right 100% of the time. But Sergeant Blanks disabused us of that notion in his testimony. The dialog was as follows:
“Q. And when you talk about those thousand, roughly a thousand interdiction stops that you’ve personally made, are those a thousand that have led to the discovery of some sort of contraband, or is that just a thousand stops and then you conducted an investigation and it went one way or another?
A. A thousand that have led to the discovery pf some kind of contraband.
Q. OK. How many drug interdiction stops would you say you’ve made where there’s been no discovery?
A. Two thousand.
Q. OK.
A. Minimum.
Q. So there are times, and in fact more often than not, if I hear you correctly, where you don’t discover something that you think might be there?
A. Yes, sir.” (Emphasis added.)
The testimony was that Sergeant Blanks was wrong in two out of every three detentions he made and searches he undertook using the factors he enumerated. That hardly supports a conclusion that the factors, singly or in combination, constitute “reasonable” suspicion justifying the escalation of a minor traffic stop to a full-blown drug investigation.
It is also worth noting that at least 2,000 innocent motorists were detained and their vehicles were searched to no avail by this one officer alone. If those stops were like this one, the delays were significant and the searches far-ranging, including the areas under the hood, in the engine, and behind the air bag.
The trial court made it absolutely clear that its decision was based on Sergeant Blanks’ “vast” experience. But he was, by his own testimony, wrong more than 67% of the time. That kind of experience should not inspire much confidence in either the rationality or the predictive ability of the factors on which he has relied for 17 years and on which he teaches others to rely. It appears that he has nothing more than “hunches” that are right about one-third of the time.
The majority finds this “disconcerting and entirely relevant for the court’s consideration,” but notes that this “admitted fallibility is only one factor the trial judge could consider. It was the trial judge’s obligation to determine the significance of this information.” 377 Ill. App. 3d at 202. The majority continued its effort to downplay the relevance of this “fallibility,” saying:
“It is well established a court may not consider the productive results of a completed search to bootstrap a finding of an articulable suspicion simply because the officer’s hunch was correct. However, a court would be equally in error were it to reject a search based on a reasonable, articulable suspicion of criminal activity merely because the officer had not found contraband in other, unrelated searches. Here, the court heard evidence that Blanks did not always discover contraband based on his suspicions. However, each case must be judged on its own unique facts. In this case, the trial judge properly determined that the search passed constitutional muster.” 377 Ill. App. 3d at 202.
I believe there are three significant flaws in this conclusion reached by the majority. First, if you are wrong 67% of the time you rely on certain otherwise-innocent factors, the inevitable and legitimate question raised is whether those factors can, in and of themselves, constitute reasonable, articulable suspicion. Surely they cannot. Second, there is nothing to show that the trial court made any evaluation of how or why these factors, viewed independently and objectively by the court, were more reliable or reasonable in this case than they were in the more than 2,000 cases in which the officer relying of them was wrong. Indeed, there is no indication that the trial court either acknowledged or considered this “admitted fallibility.” Third, when the trial court and courts of review view the factors allegedly giving rise to an articulable suspicion of criminal activity not objectively but through the lens of the officer’s experience, as the trial court and the majority have expressly done in this case, any reasonable assessment of the factors as predictors of criminal activity can only appropriately be done taking his 67% failure rate into consideration.
As for the two indicators Blanks expressly relied on in this case, the odor of air freshener in Roa’s car cannot, alone or in concert with other factors, support a finding of a reasonable suspicion of criminal activity because Blanks himself provided an innocent explanation for its presence. It is true that “[f]acts and circumstances that, if viewed independently, might constitute innocent behavior may provide reasonable suspicion when considered in their entirety to justify a Terry stop.” People v. Culbertson, 305 Ill. App. 3d 1015, 1023, 713 N.E.2d 794, 801 (1999). Here, however, Blanks testified that although air freshener is sometimes used to mask the odor of narcotics, the strength of the odor he detected could be explained by the single air freshener in defendant’s car. As previously discussed and as the courts have recognized, a single air freshener and the scent it creates is not an uncommon find and not alone indicative of criminal activity. People v. Caballes, 207 Ill. 2d 504, 802 N.E.2d 202 (2003), reversed on other grounds, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005). The only other factor Blanks noted that can be considered in conjunction with the air freshener as potentially indicative of criminal activity is defendant’s nervousness — also innocent (and not necessarily unexpected). This court cannot appropriately find that a combination of two such totally innocent circumstances viewed in their entirety give rise to a reasonable suspicion of criminal activity.
We do not weigh the application of these factors in a vacuum. We have been given guidance by the appellate and supreme courts of Illinois. In discussing “to what degree a reasonable suspicion can be based on the arguably innocent nature of the conduct itself,” the courts have noted as follows:
“A Terry stop still requires that the officer be able to point to specific and articulable facts which raise a reasonable suspicion that the person stopped has committed or is about to commit a crime. [Citations.] The Supreme Court of Illinois recently defined the reasonableness standard for police conduct in the context of a Terry stop:
‘ “Viewed as a whole, the situation confronting the police officer must be so far from the ordinary that any competent officer would be expected to act quickly ***.” ’ ” People v. Avant, 331 Ill. App. 3d 144, 152-53, 771 N.E.2d 420 (2001), quoting People v. Love, 199 Ill. 2d 269, 276, 769 N.E.2d 10, 15 (2002), quoting People v. Thomas, 198 Ill. 2d 103, 110, 759 N.E.2d 899, 903 (2001).
Nothing about the scent of a single air freshener, even when combined with “extreme” nervousness, would be so far from the ordinary that it should create an expectation for a competent officer to act quickly. See People v. Croft, 346 Ill. App. 3d 669, 675, 805 N.E.2d 1233, 1240 (2004), quoting People v. Smith, 331 Ill. App. 3d 1049, 1055, 780 N.E.2d 707 (2002), quoting People v. Anaya, 279 Ill. App. 3d 940, 946, 665 N.E.2d 525 (1996) (“The facts are insufficient to support an investigatory detention when they describe ‘ “ ‘a very large category of presumably innocent travelers, who would be subject to virtually random seizures.’ [Citation.]” ’ ”). More than 2,000 (67%) of Sergeant Blanks’ searches have targeted innocent motorists.
But the majority asserts that “[t]he trial court did not look to these two factors in isolation.” 377 Ill. App. 3d at 200. Rather, “[t]he trial court considered Sergeant Blanks’ testimony and carefully pointed out many factors that supported finding a reasonable, articulable suspicion based on a totality-of-the-circumstances analysis.” 377 Ill. App. 3d at 201. This is simply not true. The trial court’s decision expressly relied on the facts that: (1) Blanks has 17 years of experience or more; (2) He is not a rookie that just came on; (3) He has significant training; (4) He has been in court many, many times in these situations; (5) Obviously from his testimony, he knows what he is doing; (6) He can describe the scent of cocaine; (7) He can describe masking agents; and (8) He is very well versed in cocaine or controlled substance trafficking.
The trial court did not acknowledge or discuss the fact that despite every single one of those factors, more than 2,000 (67%) of Sergeant Blanks’ searches had targeted innocent motorists. If one is going to give this much deference to the experience of the law enforcement officer, his or her track record is not just relevant, it is critical. There is nothing in the record to even suggest that the trial judge did this.
Because the two innocent factors cited by Sergeant Blanks cannot, singly or in concert, provide the requisite reasonable, articulable suspicion of criminal activity to permit extension of the stop and elevation to a criminal investigation, I disagree with the author’s rationale for affirming the denial of the motion to suppress.
I turn now to the rationale employed by the special concurrence to conclude that the search was totally appropriate because there was no second seizure requiring constitutional consideration. Rather, it contends there was a consensual encounter which did not involve coercion or detention and thus does not implicate the fourth amendment. In this case we have a situation where an armed, uniformed police officer has just stopped a motorist for a traffic violation, detained him, and issued him a legal paper documenting that violation. He returns the driver’s license, registration, and proof of insurance, and, according to Roa, starts to return to his squad car. He then turns, says, “Wait a minute, Andres,” and begins to ask a series of questions, not about the weather or the Cubs or the amazing growth of corn in the surrounding fields. No, he asks whether you own the things in your car (or are they stolen?), whether anyone else has given you something to carry, whether you have any illegal material in your car, and then whether he can search — all questions intimating that he suspects you of criminal activity (which, in fact, he does). With all due respect, it is disingenuous at best to argue that any reasonable person in these circumstances would not think he or she was being officially detained and thus had been “seized.”
Certainly, it is clear from Roa’s testimony that he, individually and particularly, believed he had been detained again by Sergeant Blanks. He asserted that he only consented to the search of his trunk. When asked why, if he had only agreed to tender his trunk, he did not object when the officer proceeded to hit on the passenger door of the car and search under the hood and check inside the engine, he said, “I can say he’s the police, what can I do? *** You know, I think they are the law, they are the police. You know, I don’t want to be in trouble, you know.” There is no way this is a consensual encounter free of coercion (or intimidation) and detention. It is a seizure and therefore subject to the requirement that the officer have a reasonable articulable suspicion in order to continue to detain the defendant.
I believe — with Justice Wright — that there was a second seizure and that the search could only be justified by a showing of a reasonable articulable suspicion of criminal activity. For the reasons previously discussed, I do not agree that Sergeant Blanks had such justification, nor do I believe the trial judge looked past the officer’s years of experience to give serious consideration to the question of reasonableness. The case should be reversed on this basis alone.
II. Did Roa Consent to the Full Search of His Vehicle?
The second question is whether Roa gave consent to search his entire vehicle or only his trunk. Although, in light of my conclusion on the first question, it would not be necessary to reach this second one, the question is important in this case. Sergeant Blanks testified that if Roa had refused consent to search, he would have honored that refusal and simply let him go. Thus it would seem that if defendant only consented to the search of his trunk and the officers had honored the limited extent of his consent, they would have found nothing to excite further suspicion and they would presumably have let him go on his way. There would have been no case.
It does not appear that the trial court in the instant case did any more in evaluating this factual dispute than to defer, as it did on the issue of reasonable articulable suspicion, to the length of Sergeant Blanks’ experience and his perceived expertise. Although the record discloses a credibility finding with regard to the speed at which Roa was driving, I was unable to find any explicit credibility finding on the extent of Roa’s consent. Thus, that becomes a factual matter to be resolved pursuant to de novo review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). The majority undertook no review of defendant’s contention.
III. What Was Roa’s Reasonable Expectation of the Scope of His Consent?
The third question assumes for the purpose of this discussion that the consent was for a search of “the vehicle” and addresses the level of intrusiveness justified by such consent. Because I would not find it necessary to reach this issue in light of my answer to the first question, I am reluctant to engage in an extended legal analysis. I would, however, make a couple of general observations.
This is a stop that occurred on the side of a busy interstate highway. The motorist was ostensibly stopped for modestly exceeding the posted speed limit. Upon completion of the traffic stop, the officer sought (and secured) consent of the driver to search the car.
What might a reasonable motorist expect the nature of that search — and thus the parameters of his consent — to be? Roa indicated that he expected his trunk to be searched because Sergeant Blanks had asked about it. We have no idea why Roa might have thought or said there were antiques in the trunk. In point of fact, the trunk was searched and no contraband was found. A reasonable motorist might anticipate the officer looking at the seats and floor in the car’s interior and even in the glove compartment. I do not believe any reasonable motorist would expect his or her consent to authorize the virtual dismantling of the vehicle on the side of the highway.
A minimally informed citizen would probably assume that such an extensive search would require a warrant. Indeed, I would think a warrant would be necessary. Ordinary citizens who learned about the constitution in high school civics classes might quite reasonably anticipate that a search pursuant to consent would be limited to plain sight, plain hearing and plain smell and that an officer who wanted to undertake a more invasive search would still have to secure a warrant from a judge. However, if they ever have need of that or many other of the constitution’s specific and expressed protections, they are in for a rude awakening. It is no longer the constitution’s purpose to protect “the people” from the excesses of an overzealous and overreaching government. The document has, for all intents and purposes, been rewritten by the judiciary. Its new purpose is to shield such governmental conduct (or misconduct) from containment and constraint by the citizenry. Every time a citizen cries “foul,” we create a new exception, a new excuse, a new construction.
For all of these reasons, I respectfully dissent from the majority opinion.