dissenting:
In this case, I would find Deputy Hainline had a reasonable, articulable suspicion of criminal activity to support a warrant check on the passengers. Further, I would find a reasonable person would believe the traffic stop was complete and he was free to leave, thereby causing any further conversation to amount to a consensual encounter. Therefore, I respectfully dissent.
The majority concludes the facts here are not enough to establish a reasonable, articulable suspicion of criminal activity to support a warrant check on the passengers. I disagree. Deputy Hainline testified his suspicion that “something criminal” was going on was based on (1) movement of the occupants in the vehicle when he stopped the car, (2) defendant’s staring straight ahead without eye contact with the officer, (3) the strong smell of an unidentified odor emanating from the car, and (4) his knowledge of defendant’s involvement in illegal drug activity. While any one of these factors considered separately may not have been sufficient to establish reasonable suspicion, the trial court considers the totality of the circumstances in making its decision. People v. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000). Based on the totality of the facts, Hainline had reasonable suspicion based upon specific, articulable reasons to run a warrant check on the passengers. See People v. Perez, 288 Ill. App. 3d 1037, 1045, 681 N.E.2d 173, 178 (1997) (“Even where there may be an innocent explanation for each individual factor considered separately, the factors viewed in combination may constitute enough reasonable suspicion to warrant further detention in a given case”).
Although I agree with the majority’s comments regarding Justice Fitzgerald’s well-reasoned dissent in Harris, I would find the supreme court’s ruling in Harris does not require suppression of the evidence in this case. As Deputy Hainline had a reasonable articulable suspicion of criminal conduct, his warrant check on the passengers was reasonable and proper under the circumstances.
Moreover, I would find Deputy Hainline’s questions to the driver after the stop was complete amounted to a consensual encounter. In the trial court and now on appeal, defendant argues the encounter was not a consensual conversation and relies on our supreme court’s ruling in People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999). In that case, police officers stopped a vehicle and approached the car on both sides. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559. The officers obtained the identities of the occupants and checked for and found no outstanding warrants. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559. The officers decided not to issue any citations, but they did agree to ask the driver for permission to search the car. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559. One officer returned to the driver his license and insurance card and explained that no citations would be issued. Brownlee, 186 Ill. 2d at 506, 713 N.E.2d at 559. Thereafter, the officers stood near the car’s doors for about two minutes and said nothing. Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565-66. After the pause, the officer asked the driver to search the vehicle, and the subsequent search revealed controlled substances. Brownlee, 186 Ill. 2d at 506-07, 713 N.E.2d at 559-60.
The supreme court found the traffic stop had concluded when one officer returned the license and insurance card to the driver and explained that no citations would be issued. Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 565. However, the officer’s two-minute pause without saying anything to the driver constituted a show of authority, which would lead a reasonable person to conclude he or she was not free to leave without the officers “soon be[ing] in hot pursuit.” Brownlee, 186 Ill. 2d at 520, 713 N.E.2d at 566.
In the case sub judice, the purpose of the stop was complete when Deputy Hainline returned to the driver his license and insurance card, issued a warning ticket for the traffic violation, and told him he was free to leave. Deputy Hainline prolonged the stop by asking the driver whether any open alcohol, loaded guns, or illegal drugs were in the car and requesting permission to search the vehicle. This case is distinguishable from Brownlee, however. Here, the trial court found that, in considering all the circumstances, a person in the driver’s position would have believed he was free to leave. Deputy Hainline returned the driver’s documents and told him he was free to leave, and the driver began to walk away, in contrast to the officers in Brown-lee, who flanked the driver’s car without saying anything for two minutes. The officer’s actions here did not constitute a show of authority such that a reasonable person would not feel free to leave.
In discussing the United States Supreme Court’s decision in Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996), the court in Brownlee noted “that an officer is always free to request permission to search.” Brownlee, 186 Ill. 2d at 515, 713 N.E.2d at 563. The court, however, found the problem in Brownlee was not that the officers requested permission to search the car, but “that the officers unconstitutionally detained the car and its occupants before requesting permission to search the car, and after the conclusion of the traffic stop.” (Emphasis in original.) Brownlee, 186 Ill. 2d at 515, 713 N.E.2d at 563. Here, Deputy Hainline did not unlawfully detain the driver before he requested permission to search the vehicle.
The questions posed by Deputy Hainline amounted to a consensual encounter. “[L]aw enforcement officers do not violate the [flourth [a]mendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983). Moreover, the person to whom the questions are asked may refuse to answer and may proceed on his way. Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324.
When Deputy Hainline asked the driver whether he had any open alcohol, loaded weapons, or illegal drugs in the car, he could have refused to answer, returned to the car, fastened his seat belt, and driven away. Moreover, the questions were not of a nature that a person would feel his answer was required based on a show of authority. See People v. Gherna, 203 Ill. 2d 165, 179, 784 N.E.2d 799, 807 (2003) (“[A] consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate”). Hainline’s questions did not violate the driver’s fourth amendment rights, and the trial court correctly denied the motion to suppress.
It should be noted that the Illinois Supreme Court has steadfastly held that an unreasonable search and seizure analysis is the same whether the violation is alleged to have occurred under the fourth amendment (U.S. Const., amend. IV) or article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6). See Gonzalez, 204 Ill. 2d at 224, 789 N.E.2d at 264 (Illinois Supreme Court construes the search and seizure language in section 6 in a manner consistent with the United States Supreme Court’s fourth amendment jurisprudence); People v. Bolden, 197 Ill. 2d 166, 179, 756 N.E.2d 812, 820 (2001); People v. Bull, 185 Ill. 2d 179, 196, 705 N.E.2d 824, 833 (1998); Fink v. Ryan, 174 Ill. 2d 302, 314, 673 N.E.2d 281, 288 (1996); People v. Mitchell, 165 Ill. 2d 211, 219, 650 N.E.2d 1014, 1018 (1995); People v. Lucente, 116 Ill. 2d 133, 146, 506 N.E.2d 1269, 1274 (1987); People v. Tisler, 103 Ill. 2d 226, 242, 469 N.E.2d 147, 157 (1984). Our courts of appeal have likewise interpreted search and seizure cases in this manner. See People v. Reatherford, 345 Ill. App. 3d 327, 334-35, 802 N.E.2d 340, 348 (2003); People v. Edwards, 337 Ill. App. 3d 912, 928, 788 N.E.2d 35, 49 (2002).
In United States v. Drayton, 536 U.S. 194, 200-01, 153 L. Ed. 2d 242, 251, 122 S. Ct. 2105, 2110 (2002), the Supreme Court reasoned that simply asking questions of a citizen is not a violation of the fourth amendment when the citizen is willing to listen. Here, no testimony indicated Deputy Hainline implied defendant must answer his questions or consent to a search.
Defendant’s reliance on People v. Goeking, 335 Ill. App. 3d 321, 780 N.E.2d 829 (2002), is also distinguishable. In that case, the officer issued a verbal warning for a traffic violation, told the driver she was free to leave, and then asked if she had anything illegal in the car and for permission to search it. Goeking, 335 Ill. App. 3d at 322, 780 N.E.2d at 831. The appellate court, relying on Brownlee, affirmed the trial court’s decision to grant the defendant’s motion to suppress, focusing on the trial court’s finding that the driver did not feel free to leave. Goeking, 335 Ill. App. 3d at 324, 780 N.E.2d at 831. The Second District indicated the evidence showed the defendant did not think she could leave the scene and felt she had no choice in the matter. Goeking, 335 Ill. App. 3d at 324, 780 N.E.2d at 832.
In this case, defendant does not challenge the trial court’s finding that a reasonable person in the driver’s position would feel free to leave. As stated earlier, the driver received his documents and was told he was free to go. The evidence presented at the hearing leads me to conclude that an objectively reasonable person would have felt free to do so. Therefore, I would affirm the trial corut’s judgment.