dissenting:
I agree that the defendant was seized at the time of the search, notwithstanding the trooper’s statement that she was free to go. Where was she going to go? That being said, it is my opinion that the brief detention was supported by a reasonable, articulable suspicion. That is, this probable cause traffic stop evolved into a permissible Terry stop. In fact, the cases cited by the majority (392 Ill. App. 3d at 27-28) support this proposition. The second seizure was brief. The trooper had the dog in his squad car. He did not have to wait for the dog to arrive. As pointed out, the fourth amendment protects against unreasonable searches and seizures. Under the totality of the circumstances, there is nothing unreasonable about this brief seizure.
While talking to the driver of the vehicle, the trooper learned that the group was traveling from Colorado to Michigan. Based on his training, the trooper knew that Colorado was a hub for the distribution of illegal drugs and that substantial amounts of cocaine and marijuana were transported from there using Interstate 80 as a main corridor.
Furthermore, while writing the warning ticket, a message was radioed to the trooper informing him that the driver had prior arrests for numerous offenses, including possession of controlled substances. Although being informed that she was only going to receive a warning ticket, when the driver overheard her criminal history relayed to the trooper, her nervousness heightened and her lips began to tremble. The driver also became evasive in that she would no longer look at the trooper after realizing he knew her criminal past.
After observing this behavior, the trooper asked the driver if there was anything illegal in the car. The driver stated, “Not that I know of.” Given his knowledge and training, together with his observations of the occupants of the vehicle, the trooper suspected that the vehicle contained contraband. After being denied permission to search, the trooper informed the occupants that he was going to execute a canine sniff of the vehicle.
The majority acknowledges that courts have found it reasonable for a police officer to consider the fact that an individual is traveling to or from an area notorious for drug trafficking activities and that nervousness has been acknowledged to be significant when establishing a reasonable suspicion. 392 Ill. App. 3d at 27-28. The majority would, undoubtedly, also acknowledge that evasiveness has been recognized as a factor to consider when determining the existence of a reasonable articulable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). The driver was evasive by turning away from the trooper to avoid eye contact once she knew the trooper was aware of her criminal history. She also became more nervous. Noticing this evasiveness, the trooper asked if there was anything illegal in the car and the driver continued her evasiveness by providing an ambiguous answer to the question. However, when viewing the totality of the circumstances, the majority finds that the trooper did not have a reasonable, articulable suspicion of criminal activity.
As the United States Supreme Court has noted many times, the process of determining what is and is not a reasonable, articulable suspicion “does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers.” United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 629, 101 S. Ct. 690, 695 (1981); see also United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989). As the United States Supreme Court stated in Sokolow:
“We noted in Gates [citation], that ‘innocent behavior will frequently provide the basis for a showing of probable cause,’ and that ‘[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ That principle applies equally well to the reasonable suspicion inquiry.” Sokolow, 490 U.S. at 10, 104 L. Ed. 2d at 12, 109 S. Ct. at 1587.
The majority inaccurately describes this encounter as one in which the trooper failed to articulate the basis for a reasonable suspicion of criminal activity. Nervousness, evasiveness, a past criminal history, and traveling from an area known as a major narcotics hub down a known narcotics thoroughfare have all been recognized as factors to be considered when forming a reasonable, articulable suspicion. It is not unreasonable to expect that many people will exhibit some level of nervousness when stopped by a police officer. Key here is the fact that the driver was told she was getting a written warning. Common sense tells us that this news should have caused the normal anxiety to at least subside somewhat. But when defendant heard the radio transmission regarding her criminal history, her nervousness visibly increased. It is reasonable to presume that this was because she felt the trooper was now more likely to want to search her vehicle.
Because I find that the trooper had a reasonable, articulable suspicion of criminal activity to support the brief seizure necessary to conduct the dog sniff, I would affirm.