dissenting:
First, I express my agreement with the majority that the Terry/ Gonzalez factors must be applied with due regard for the evolving nature of traffic stops. In considering the overarching question of whether police conduct that occurs after the Terry-stop of a car is reasonably related in scope to the circumstances that led to the stop, a court may and must consider not only those circumstances that arise before and at the time the traffic stop is effected, but also those that arise afterward, up to the point the police action in question occurs.
By the time Officer Opelt asked defendant for permission to search his car, defendant had (1) weaved within his lane of traffic, failed to signal a turn, and followed another car too closely, all while taking a circuitous route toward his destination, via a street that he erroneously thought was the street on which he lived; (2) acted unusually nervous during the traffic stop; and (3) volunteered that he had been recently released from drug rehabilitation for a heroin addiction. Based on these facts, Officer Opelt asked to search the car. He testified that he made the request because the presence of contraband in the car would corroborate his suspicion that defendant was under the influence of drugs.
The majority suggests that Officer Opelt must have been on a “fishing expedition,” because he could have pursued his suspicion more efficiently by simply having defendant submit to field sobriety tests or to a pat-down search for drugs. The majority does not reveal what it believes Officer Opelt really thought during the interaction. Does the majority believe that Officer Opelt did not truly suspect that defendant was under the influence but offered the suspicion merely as a pretext for a search? Or does the majority believe that Officer Opelt’s suspicion was actually firmer than he indicated, to the point that he concluded, at least provisionally, that defendant was indeed under the influence of drugs and that he might still have the intoxicating substance in his possession? Of course, it is possible that Officer Opelt undertook the search with mixed rationales. Perhaps he was not so sure that defendant was intoxicated as to arrest him without further proof (which, he reasoned, might take the form of contraband itself), yet he was sure enough to suspect that a search of the car would reveal the contraband that might have intoxicated defendant. Thus, Officer Opelt might have believed that the presence of contraband in the car would follow from, and in turn reinforce, his suspicion that defendant was under the influence. Whatever the case, Officer Opelt’s actions must be evaluated not by what he himself thought was justified, but by what was objectively justified. See, e.g., People v. Gray, 305 Ill. App. 3d 835, 839 (1999) (an objective test applies in determining justification under the fourth amendment, and the subjective intentions or beliefs of the officer are not dispositive). Rather than seek to hamstring the State with Officer Opelt’s testimony, we must address the issue as framed by the State on appeal: “Was it reasonable for Officer Opelt to believe that a driver whom he suspected to be under the influence of a controlled substance might have some of that same substance in the car with him?” If, as Terry and its progeny require in our pursuit of what is objectively reasonable, we yield what is due the judgments of seasoned patrol officers like Officer Opelt, the answer will be “Yes.”
The first TerrylGonzalez prong asks whether the police action was reasonably related in scope to the circumstances that justified the interference in the first place. Gonzalez, 204 Ill. 2d at 235. The majority and I agree that “defendant’s unexplained misidentification of his location, erratic driving, and unusual nervousness at the time of the stop warranted further questioning to investigate whether defendant was under the influence of alcohol or drugs.” 359 Ill. App. 3d at 847. As for the request to search the car, the majority initially says that the request “would have been reasonably related to the circumstances that prompted the stop if [the officer’s] interaction with defendant had corroborated his initial suspicion that defendant might be under the influence.” 359 Ill. App. 3d at 847-48. This statement of the requirements of Terry ¡Gonzalez’s first prong is misleading to the extent that it seems to require Officer Opelt to have had some quantum of evidence to warrant his request. It is the second prong of TerrylGonzalez that requires an evidentiary link between the initial detention and the subsequent police conduct; the first prong requires merely a thematic link. See Gonzalez, 204 Ill. 2d at 236 (request for identification from passenger in Terry-stopped car did not relate to the traffic violation that was basis for stop); Hall, 351 Ill. App. 3d at 504 (officer’s question to defendant whether he had any contraband in his car and subsequent request to search car “were clearly unrelated to the initial purpose of the stop, the nonfunctioning headlight”). Fortunately, however, the majority’s analysis does not seem governed by this misleading statement, for the majority seems to suggest that the reason Officer Opelt’s request to search the car was not reasonably related to the initial stop was not because Officer Opelt lacked an evidentiary justification for suspecting that defendant was under the influence, but because he really did not have that suspicion at the time he asked to search the car. The majority reasons that Officer Opelt’s decision to forgo sobriety testing indicated that he no longer believed that defendant was under the influence. 359 Ill. App. 3d at 848. The majority misreads the record. Officer Opelt dispensed with sobriety testing because he had concluded there did not exist the probable cause he mistakenly thought was needed for field sobriety tests (see Village of Plainfield v. Anderson, 304 Ill. App. 3d 338, 342 (1999) (only reasonable suspicion necessary for field sobriety tests)), not because he had abandoned his belief that defendant was under the influence. Officer Opelt’s testimony plainly shows that, at the time he sought permission to search the car, he believed that defendant was under the influence, based on his traffic infractions, obvious disorientation, and admitted recent release from drug rehabilitation. The majority has ventured no reason not to believe Officer Opelt’s testimony. Thus, if the majority’s doubts about Officer Opelt’s sincerity are the only obstacle to its finding the first prong of Terry/Gonzalez satisfied, then the record must put that hesitation to rest. In any event, we need not divine Officer Opelt’s thoughts, since the test for determining whether police action is justified under the fourth amendment is an objective one. See Gray, 305 Ill. App. 3d at 839.
Having said this, I cannot be sure the majority really believes that the reason Officer Opelt’s request to search the car was not reasonably related to the initial stop was because his interaction with defendant did not, as the majority incorrectly puts it, “corroborate[ ] his initial suspicion that defendant might be under the influence” (359 Ill. App. 3d at 848), for not five lines after this remark, the majority says, “Officer Opelt’s ultimate request to search the car was not reasonably related to the stop, because the questioning regarding defendant’s location and destination was not probative of whether contraband might be found in the car” (359 Ill. App. 3d at 848). Does the majority believe that the request to search the car was unreasonable because (1) defendant’s answers to Officer Opelt’s prior questions did not corroborate his suspicion that defendant was under the influence, or because (2) Officer Opelt’s questions were not tailored enough to determining specifically whether defendant had contraband in the car? I addressed the soundness of rationale (1) above. If, in fact, rationale (2) is the intended rationale, then I cannot see why Officer Opelt would have had to ask defendant whether he had contraband in his car before asking to search the car. Both queries would have been based on a suspicion that defendant had contraband, and if, as the majority apparently believes, it was permissible for Officer Opelt to ask defendant if he had contraband in the car, then surely the officer could have dispensed with preliminaries and simply asked to search the car. Defendant could have declined a request to search his car just as easily as he could have refused to answer a question about his possession of contraband.
There are flaws also in the majority’s analysis under the third prong of Terry ¡Gonzalez, which asks whether the fimdamental nature of the stop was changed. See Moore, 341 Ill. App. 3d at 810. Here again the majority reads more into Officer Opelt’s conduct than the record allows. The majority states that “[i]n light of Officer Opelt’s decision to forgo sobriety testing, it appears that his hunch regarding concealed contraband in the vehicle was based only on defendant’s disclosure of his drug treatment.” 359 Ill. App. 3d at 848. Again, Officer Opelt was quite clear that his suspicion was based on several factors, namely, defendant’s driving infractions, disorientation, .and admission to having undergone drug treatment recently. But even if Officer Opelt’s “hunch” had been based solely on the drug treatment disclosure, that should not matter to our analysis. The correct analytical approach is whether a reasonable officer would have been influenced by the other foregoing factors, which I believe continued to influence Officer Opelt.
Later in the analysis, the majority finds yet more significance in what methods Officer Opelt did not employ. Pointing out that Officer Opelt would have more directly pursued the issue of intoxication by having defendant perform field sobriety tests or submit to a pat-down search for contraband, rather than by asking to search the car, the majority states the following proposition: “The degree to which an officer resorts to less probative investigatory techniques, in this case a request to search a vehicle for evidence of the driver’s intoxication, informs our analysis of whether the use of the technique fundamentally changed the nature of the stop.” 359 Ill. App. 3d at 849. No specific citation is provided for this proposition. The majority apparently believes that it is a logical, uncontroversial elaboration of Terry/ Gonzalez, but I am doubtful. Some of the most invasive police actions — those most likely to change the fundamental nature of a stop— are also the most probative.
At this early point in its existence, Gonzalez itself remains the best guide to what Gonzalez says: “ ‘Terry’s scope requirement is a common sense limitation on the power of law enforcement officers. It prevents law enforcement officials from fundamentally altering the nature of the stop by converting it into a general inquisition about past, present and future wrongdoing.’ ” Gonzalez, 204 Ill. 2d at 235, quoting United States v. Holt, 264 F.3d 1215, 1240 (10th Cir. 2001) (Murphy, J., concurring in part and dissenting in part). Defendant was not subjected to a general inquisition, but to questions tailored for the narrow purpose of determining whether he was under the influence. To say, as does the majority, that Officer Opelt could have used a more probative method of pursuing his suspicion is to say nothing more than that Officer Opelt’s conduct fell on a continuum. Where does Terry ¡Gonzalez draw the line on that continuum? The overarching criterion is common sense, and where an officer seeks to know whether a driver he suspects is under the influence of drugs has any such drugs in his possession, common sense is not offended but upheld. The majority would have preferred that Officer Opelt perform field sobriety tests or pat defendant down for contraband, but such methods are much more personally invasive than a request to search a car.
While I believe that Officer Opelt’s actions clearly were justified under the first and third prongs of Terry/Gonzalez and therefore pass constitutional muster on that basis alone, I will discuss the second prong as it relates here, because I disagree with the majority on this point as well. The second prong asks whether the officer’s action was supported by a reasonable and articulable suspicion of criminal activity. Gonzalez, 204 Ill. 2d at 235. The majority contends that “neither defendant’s behavior nor the visible areas of the car caused the officer to fear for his safety or suspect that defendant possessed contraband.” 359 Ill. App. 3d at 848. The majority acknowledges, however, that defendant, in addition to having driven erratically, “showed unusual nervousness and signs of disorientation.” 359 Ill. App. 3d at 848. These facts, combined with defendant’s admission to having been in drug treatment recently, supported a reasonable suspicion that defendant was under the influence of drugs, even in the absence of the more commonly observed physical indicia of alcohol influence such as bloodshot and glassy eyes or lack of balance. That being so, Officer Opelt was justified in inquiring whether he could search the car, because, as I explained above, it was reasonable to suspect that defendant might have in his possession the same contraband that might have intoxicated him.
The majority’s analysis of the relevant case law is also unconvincing. Contrary to the majority’s claim, the present case is nothing like Hall, where the officer asked to search the defendant’s car without having any indication that the defendant was guilty of anything other than the equipment violation for which the officer pulled him over. Here, by contrast, there were various signs that defendant was under the influence of drugs. The majority also fails to identify any material difference between this case and Moore. I disagree with the majority’s conclusion that defendant’s weaving within his lane and following another car too closely are “much weaker” indicators of driving under the influence than the erratic driving in Moore, which consisted of driving down the wrong side of the road at a high rate of speed. 359 Ill. App. 3d at 847. Defendant’s driving was at least as telling of impairment as the Moore defendant’s driving, if not more so. Weaving within one’s lane is such a common and probative indicator of driving under the influence that this district has formulated the following general rule: “Weaving, even within defendant’s own lane, may provide reasonable grounds for a Terry stop where the officer believes defendant may be under the influence of drugs or alcohol.” People v. Rosemeier, 259 Ill. App. 3d 695, 697 (1994). I recognize that, unlike here, the officer in Moore observed furtive movements within the car. However, although the court in Moore considered the totality of the circumstances in judging the officer’s questioning and request to search the car, it seems the court would have found the officer’s action justified even if there was reason to suspect only that the defendant (the driver of the car) was under the influence: “Given these circumstances, it was reasonable for Officer Owens to suspect that the defendant may have been under the influence of a controlled substance and/or alcohol, or that other criminal activity may have been in progress. *** Consequently, we believe the scope of the stop was related to the circumstances that justified the interference in the first place.” (Emphasis added.) Moore, 341 Ill. App. 3d at 810. Moreover, there was a fact present here that was absent in Moore: defendant’s admission that he had been in drug rehabilitation recently.
For the foregoing reasons, I respectfully dissent from the majority’s holding that Officer Opelt exceeded the scope of the Terry stop.