specially concurring:
I fully agree with the majority opinion. Specifically, I agree that nothing which occurred after the stop gave the police that reasonable suspicion of the presence of contraband which is necessary to detain a car in order to conduct a canine sniff. I also agree that the detention of defendant after the traffic stop had been completed was improper. Is there a lesson here? In the future, should the police carry dogs with them and make sure that the canine sniff is conducted before the traffic stop is completed?
One argument might be that, so long as the rules regarding traffic stops are complied with, a defendant has no right to complain when a canine sniff is conducted simultaneously with the traffic stop, just as a defendant would have no right to complain about a canine sniff of his vehicle which he had parked on a public street.
A contrary argument might be that the law which has developed regarding traffic stops represents the striking of a balance. On the one hand, the courts will not inquire into the actual motivation of the offleer in making a traffic stop. The constitutional reasonableness of a traffic stop does not depend on the actual motivations of the police officers involved. Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 98, 116 S. Ct. 1769, 1774 (1996). The pretextual nature of a stop does not invalidate it. People v. Orsby, 286 Ill. App. 3d 142, 146, 675 N.E.2d 237, 240 (1996). On the other hand, a traffic stop does not justify a general search of a vehicle. Where there is no reason to believe that the officer is in danger so as to justify a frisk, the officer may seize contraband in plain view or search by consent but no more. People v. Smith, 315 Ill. App. 3d 772, 776, 734 N.E.2d 1039, 1042 (2000).
If something new is added to traffic stops, the balance might change. That something new might be the routine presence of a canine unit at traffic stops, or the use of new equipment, e.g., a flashlight that also analyzes the driver’s breath for alcohol content. If an officer is allowed to conduct a thorough drug search of a vehicle at a traffic stop, by use of a canine unit or by other means, we can expect that many more vehicles will be stopped than in the past.
Should the police be allowed to stop any vehicle and check it for the presence of drugs? The Seventh Circuit recently held that could not be done, recognizing however that roadblocks at which drivers are checked for being under the influence of alcohol or other mind-altering drugs have been upheld. Edmond v. Goldsmith, 183 F.3d 659, 663, 665 (7th Cir. 1999), cert. granted,_U.S._, 145 L. Ed. 2d 1068, 120 S. Ct. 1156 (2000) (“[Heading a drug-sniffing dog around a car cannot be justified by reference to a desire to detect traffic violations, *** the purpose of the roadblocks [here] is to catch drug offenders”). The dissent recognized there is a risk in “allowing stops of vehicles without person-specific cause” (or pretextual stops) because some officers will abuse the discretion thus conveyed. Edmond, 183 F.3d at 670 (Easter-brook, J., dissenting). “Some officers will stop people for the ‘offense’ of DWB (‘driving while black’).” Edmond, 183 F.3d at 670 (Easterbrook, J., dissenting). Nevertheless, the dissent would have upheld these roadblocks because of the rigorous protocol that had been established for them.
The present decision does not resolve these questions. Any answers must awédt future cases'.