dissenting:
I do not agree with the majority’s conclusion that, after the white powder field tested negative for cocaine, Trooper Tracy no longer had probable cause to believe that defendant’s vehicle contained contraband. To the contrary, I believe that, given the totality of the circumstances, Trooper Tracy did have probable cause to believe that defendant’s vehicle contained contraband even after the negative field test, and that further detention of defendant and the canine search were therefore valid.
A warrantless search of a vehicle is permissible if an officer has probable cause to believe there is contraband in the car. (People v. Kolody (1990), 200 Ill. App. 3d 130, 134, 558 N.E.2d 589, 593.) Probable cause exists when, considering the totality of the circumstances known to the police officer at the time of the search, a reasonable person would believe that contraband was present in the vehicle. (Kolody, 200 Ill. App. 3d at 134-35, 558 N.E.2d at 593.) In the instant case, the totality of the circumstances known to the officers at the time of the search of the car would justify a reasonable person in believing that contraband was present in the car.
Just before Trooper Tracy conducted the pat-down search of Mr. Bryant, he noticed the prescription bottle on the front passenger seat. He picked it up and saw that it contained a white powder and was labelled “gold tooth polish.” The trooper asked the defendant what it was, and the defendant stated that it was gold tooth soap. The trooper then asked the defendant and Mr. Bryant for their identification. Neither had driver’s licenses with them so the officer used their names to check their records. The defendant’s record came back clear and showed that he had a valid driver’s license. Although Mr. Bryant’s record was clear, it did not list a driver’s license, which indicated to the trooper that Mr. Bryant was lying. After Mr. Bryant revealed his true identity, the trooper found out that he was wanted in Sangamon County for criminal sexual assault. Trooper Tracy placed Mr. Bryant under arrest based on the outstanding warrant and conducted a more thorough search of him. During this search, the trooper found two rock-like substances wrapped in plastic in Mr. Bryant’s front pocket. The trooper again was told that the substance was gold tooth polish.
At this point, Trooper Tracy had two different substances which the defendant and Mr. Bryant claimed to be gold tooth polish, one a white powder and the other a rock-like substance. The claim that both of these substances were gold tooth powder led Trooper Tracy to reasonably believe that the white powder in the prescription bottle was cocaine, so he called for a field testing kit and the canine unit. When Master Sergeant Bramlett arrived with Sergeant Runyon, Sergeant Runyon field tested the white powder and the rock-like substances. Both the powder and the rock-like substances tested negative for cocaine.
The defendant below argued, and the trial court agreed, that at this point, when the substances tested negative for cocaine, the search should have ended and the further detention and search of the defendant and his car were unreasonable. Although there is no talismanic time beyond which any investigatory stop becomes an unreasonable seizure, the brevity of the stop is an important factor in determining whether the stop is unreasonable. However, a reviewing court must also consider whether the police acted diligently in pursuing their investigation. (People v. Smith (1991), 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943; United States v. Place (1983), 462 U.S. 696, 709, 77 L. Ed. 2d 110, 122, 103 S. Ct. 2637, 2645-46.) Furthermore, if answers to initial inquiries during an investigatory stop dispel questions in an officer’s mind, the stop may go no further and the individual may no longer be detained. However, if the inquiries arouse further suspicion, the stop may be prolonged and the scope expanded. (People v. Smith (1991), 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943.) Finally, if an officer’s suspicions are not allayed within a reasonable time, he must either make an arrest or allow the individual to leave. Smith, 208 Ill. App. 3d at 50, 566 N.E.2d at 943.
In the case at bar, the negative field test results did not dispel the officers’ suspicions, especially in light of the defendant’s and Mr. Bryant’s story that both substances were gold tooth powder, and the rock-like substances were packaged in the same manner as crack cocaine is packaged and sold. The officers reasonably believed that the powder might be a cutting substance and the rock-like substances might be passed off as crack cocaine. (See Ill. Rev. Stat. 1991, ch. 56V2, par. 1404.) Therefore, Master Sergeant Bramlett ordered everyone to wait for the canine unit. Furthermore, Sergeant Runyon stated that the powder could have been some other controlled substance and that it is possible for the test kit to give a false negative. Because the field test did not dispel the officers’ suspicions, it was proper for them to continue the search of the car. Further, the officers acted diligently in pursuing their investigation despite the fact that the detention lasted nearly an hour and a half. The length of the detention was due in large part to the amount of time it took the officers to arrive at the scene. With the exception of the canine unit, it took all the officers 15 to 20 minutes to arrive at the scene. It took the canine unit 30 to 35 minutes to arrive. Each officer responded immediately to the call for assistance. The record reveals no improper delaying tactics or lack of diligence to get to the scene on the part of the officers.
In the present case, the officers did have probable cause to continue the investigation despite the fact that the substance tested negative for cocaine. As stated earlier, probable cause to search an automobile exists when the totality of the circumstances known to the officers at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (People v. Kolody (1990), 200 Ill. App. 3d 130, 134-35, 558 N.E.2d 589, 593.) Even though the substances tested negative for cocaine, a reasonable person would believe that contraband was present in the automobile. The officers were confronted with two different substances, both of which were purported to be gold tooth cleaner. One substance was a white powder in a medicine vial, and the other was rock-like and wrapped in plastic. Trooper Tracy testified that the rock-like substance was packaged in the manner that crack cocaine is sold and that Master Sergeant Bramlett told him that the powder could have been a cutting substance and that the rock-like substance could have been passed off as crack cocaine. Further, Sergeant Runyon stated that the powder could have been some other controlled substance as the test kit only tested for cocaine. In addition, the field test kit was not as accurate as a lab test, and the kit could have given a false negative. Faced with these circumstances, a reasonable person would be justified in believing that contraband was present in the car and, therefore, probable cause existed for the further search of the defendant’s car. I believe the court below erred in granting the defendant’s motion to suppress.
Accordingly, I would have reversed the order of the circuit court suppressing the weapon as manifestly erroneous. I therefore respectfully dissent.