                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Jordan, 2011 IL App (4th) 100629




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    JENNA M. JORDAN, Defendant-Appellee.



District & No.             Fourth District
                           Docket No. 4-10-0629


Filed                      November 14, 2011


Held                       The trial court properly suppressed the inculpatory statements defendant
(Note: This syllabus       made while she was questioned by the officer who had stopped the car in
constitutes no part of     which defendant was a passenger on the suspicion that the driver was not
the opinion of the court   wearing his seatbelt and the cannabis discovered as a result of the
but has been prepared      statements she provided, since defendant made the statements after being
by the Reporter of         locked in a squad car for over 20 minutes, she never received Miranda
Decisions for the          warnings, she did not waive her rights, and the appearance of additional
convenience of the         officers at the scene transformed what began as a routine investigation
reader.)
                           into a suspected seatbelt violation into a full-fledged drug search.


Decision Under             Appeal from the Circuit Court of Livingston County, No. 09-CF-226; the
Review                     Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Thomas J. Brown, State’s Attorney, of Pontiac (Patrick Delfino, Robert
Appeal                      J. Biderman and Denise M. Ambrose, all of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.

                            Michael J. Pelletier, Karen Munoz, and Molly A. Corrigan, all of State
                            Appellate Defender’s Office, of Springfield, for appellee.


Panel                       JUSTICE COOK delivered the judgment of the court, with opinion.
                            Justices Steigmann and Pope concurred in the judgment and opinion.




                                              OPINION

¶1          In April 2010, the trial court granted defendant Jenna M. Jordan’s motion to suppress
        evidence in her prosecution for possession of cannabis with the intent to deliver. Specifically,
        the court suppressed admissions made by defendant and contraband seized during a traffic
        stop of a vehicle in which defendant was a passenger, finding the evidence was obtained in
        violation of defendant’s fourth-amendment rights (see U.S. Const., amend. IV) and Miranda
        v. Arizona, 384 U.S. 436 (1966). The State brings this interlocutory appeal under Illinois
        Supreme Court Rule 604(a)(1) (eff. July 1, 2006), arguing the suppressed evidence was
        obtained through constitutional means. We disagree and affirm.

¶2                                         I. BACKGROUND
¶3          The traffic stop in question occurred in August 2009. Livingston County sheriff’s deputy
        David Netter stopped a Chevrolet Blazer driven by Mark Zaloudek on suspicion that the
        driver was not wearing his seatbelt. Defendant was Zaloudek’s sole passenger. Deputy Netter
        approached the vehicle to identify the driver and passenger and inform them of the reason
        for the stop. During this initial exchange, Zaloudek informed Deputy Netter that he was on
        “parole,” or what is currently known as mandatory supervised release (MSR).
¶4          Deputy Netter returned to his patrol car to run warrant checks on defendant and
        Zaloudek. He confirmed that Zaloudek was on MSR and determined that neither occupant
        had any outstanding warrants. Deputy Netter recognized Zaloudek by his name; he had been
        informed by another Livingston County sheriff’s deputy, Deputy Chambers, that Zaloudek
        was among individuals suspected of drug activity in the Streator area. Before returning to
        Zaloudek’s vehicle, Deputy Netter called Deputy Chambers regarding Zaloudek.
¶5          Deputy Netter next approached the Blazer from the passenger side and began talking with
        defendant. He asked her to accompany him back toward his patrol car, out of Zaloudek’s
        earshot. At Deputy Netter’s request, defendant sat in the rear seat of the squad car with the

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       door open while Deputy Netter questioned her. Deputy Netter asked defendant whether she
       was employed. He asked what she and Zaloudek had been doing and where they were headed
       when he pulled them over. He asked whether she smoked marijuana; she replied that she had,
       “a long time ago.” When asked, defendant responded that no contraband was in Zaloudek’s
       vehicle; after a pause, she added that, if contraband was in the vehicle, neither she nor
       Zaloudek knew about it. This questioning lasted approximately four minutes. Before he
       returned to the Blazer, Deputy Netter locked defendant in the backseat of the squad car; he
       lowered the rear window so defendant could call out to him if she needed anything.
¶6          Returning to the Blazer, Deputy Netter asked Zaloudek to exit the vehicle. He questioned
       Zaloudek along the same lines as he had questioned defendant. Notably, Zaloudek indicated
       he was unemployed, yet when Deputy Netter searched his person, $370 in $10 and $20 bills
       was found in Zaloudek’s rear pocket. When asked how he obtained the cash, Zaloudek
       explained that he sometimes mowed yards for his brother.
¶7          Deputy Netter suspected Zaloudek’s vehicle contained contraband based on Zaloudek’s
       status as a parolee, the cash found on his person, defendant’s and Zaloudek’s suspiciousness,
       and the phone conversation Deputy Netter had with Deputy Chambers. Deputy Netter
       informed Zaloudek that his Blazer was subject to being searched pursuant to his MSR
       agreement. Deputy Netter nevertheless asked for and received Zaloudek’s consent to the
       search. By this time, three reinforcement officers had arrived at the scene. One officer held
       Zaloudek near Deputy Netter’s patrol car while Deputy Netter and the two other officers
       searched Zaloudek’s vehicle. No contraband was found.
¶8          Following this search, Deputy Netter returned to his patrol car and resumed questioning
       defendant. Approximately 15 minutes had elapsed since he had left her alone there. He
       informed her that he intended to call the canine unit to search the Blazer further. Deputy
       Netter again asked defendant whether “there was anything illegal on her person or in the
       vehicle.” After about eight minutes of questioning, defendant admitted she had cannabis
       concealed in her pants and in a bag in the vehicle. She produced the cannabis on her person,
       described the bag, and told Deputy Netter where the bag could be found in the Blazer. She
       claimed ownership of the bag. Officers found the bag as described by defendant. It contained
       two more bags of different sizes, each containing cannabis.
¶9          Defendant was arrested. The following day, the State charged her with possession of
       cannabis (30 to 500 grams) with intent to deliver. See 720 ILCS 550/5(d) (West 2008). In
       November 2009, defendant moved to suppress evidence, including the cannabis and
       defendant’s admissions to Deputy Netter.
¶ 10        In March and April 2010, the trial court held a two-day hearing on defendant’s motion
       to suppress. Deputy Netter was the sole witness; he testified to the relevant events as
       described above. The audio-video recording taken by Deputy Netter’s dashboard camera was
       admitted as evidence for defendant and was played for the court. Zaloudek’s MSR agreement
       was admitted as evidence for the State. Following arguments, the court concluded defendant
       had been unlawfully detained when she made the incriminating statements as she was held
       in the backseat of the squad car for an unreasonable duration. The court also noted defendant
       was not advised of her constitutional rights in accordance with Miranda before she made her


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       inculpatory statements. As it concluded they resulted from this unconstitutional seizure and
       questioning of defendant, the court suppressed defendant’s admissions and the seized
       cannabis.
¶ 11       In July 2010, the trial court denied the State’s motion to reconsider. In August, the State
       filed its notice of appeal and certificate of impairment, effecting this appeal.

¶ 12                                        II. ANALYSIS
¶ 13       On appeal, the State contends defendant’s seizure for the duration of the traffic stop and
       the questioning that resulted in defendant’s inculpatory statements were constitutional. We
       conclude the trial court did not err as the discovery of the suppressed evidence resulted from
       a Miranda violation.
¶ 14       We review a trial court’s disposition of a motion to suppress under a bifurcated standard.
       People v. Oliver, 236 Ill. 2d 448, 454, 925 N.E.2d 1107, 1110 (2010). “The trial court’s
       factual findings are entitled to great deference, and we will reverse them only if they are
       against the manifest weight of the evidence.” Id. “The trial court’s ultimate legal ruling on
       whether suppression is warranted, however, is reviewed de novo.” Id. De novo review is also
       appropriate “where the facts and witness credibility are not in dispute.” People v. Roberts,
       374 Ill. App. 3d 490, 495, 872 N.E.2d 382, 387 (2007).
¶ 15       For purposes of our analysis, we may assume that the traffic stop was valid at its
       inception (see Terry v. Ohio, 392 U.S. 1, 20 (1968) (holding an investigatory detention is
       constitutional only if justified at its inception and reasonably related in scope to the
       circumstances justifying the interference with detainee’s freedom from unreasonable
       seizures)) and that the first search of Zaloudek’s vehicle was allowable under his MSR
       agreement (see People v. Wilson, 228 Ill. 2d 35, 48-50, 885 N.E.2d 1033, 1041-42 (2008)
       (holding a suspicionless search of a parolee’s residence was constitutional in light of the
       search condition in the parolee’s MSR agreement)). Further, as we decide this case on
       Miranda grounds, we need neither discuss nor decide whether, under the fourth amendment,
       the suppressed evidence was obtained as a result of an unlawful detention. Cf. People v.
       Chestnut, 398 Ill. App. 3d 1043, 1054, 921 N.E.2d 811, 822 (2010) (holding the defendant’s
       unlawful detention tainted evidence subsequently discovered as a result of the detention,
       warranting suppression).
¶ 16       Under Miranda, 384 U.S. at 444, a defendant’s statements stemming from “custodial
       interrogation” of the defendant are inadmissible unless preceded by the defendant’s knowing
       and intelligent waiver of his right not to be compelled to testify against or incriminate
       himself and his right to have an attorney present during such interrogation. Accordingly, an
       officer who intends to subject a person to custodial interrogation toward obtaining an
       admissible confession must first warn that individual “that he has a right to remain silent,
       that any statement he does make may be used as evidence against him, and that he has a right
       to the presence of an attorney, either retained or appointed,” and obtain his waiver of those
       rights before questioning him. Id. In addition to any statements obtained in violation of
       Miranda, any evidence seized upon information obtained as the result of an unconstitutional
       interrogation is likewise inadmissible as “fruit of the poisonous tree.” See Wong Sun v.

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       United States, 371 U.S. 471, 487-88 (1963) (holding that the exclusion of unconstitutionally
       obtained evidence extends to evidence that is “come at by the exploitation of that illegality”
       (internal quotation marks omitted)).
¶ 17       “Custodial interrogation” means “questioning initiated by law enforcement officers after
       a person has been taken into custody or otherwise deprived of his freedom of action in any
       significant way.” Miranda, 384 U.S. at 444. Interrogation is custodial if, under the
       circumstances of the questioning, “a reasonable person would have felt he or she was not at
       liberty to terminate the interrogation and leave.” People v. Braggs, 209 Ill. 2d 492, 506, 810
       N.E.2d 472, 481 (2005); see also id., 810 N.E.2d at 482 (clarifying “the accepted test is what
       a reasonable person, innocent of any crime, would have thought had he or she been in the
       defendant’s shoes” (emphasis added)). These warnings are required for admissibility if and
       only if the person being questioned is in custody. See People v. Slater, 228 Ill. 2d 137, 149,
       886 N.E.2d 986, 994 (2008) (“The finding of custody is essential, as the preinterrogation
       warnings required by Miranda are intended to assure that any inculpatory statement made
       by a defendant is not simply the product of the compulsion inherent in custodial
       surroundings.” (Internal quotation marks omitted.)).
¶ 18       Relevant factors to consider when determining whether an interrogation was custodial
       include “(1) the time and place of the confrontation; (2) the number of police officers
       present; (3) the presence or absence of family or friends; (4) any indicia of a formal arrest
       procedure, such as physical restraint, the show of weapons or force, booking or
       fingerprinting; and (5) the manner by which the individual arrived at the place of the
       interrogation.” People v. Melock, 149 Ill. 2d 423, 440, 599 N.E.2d 941, 948 (1992). Further
       considerations include “the location, length, mood and mode of the interrogation; *** the
       intentions of the officers; and the extent of knowledge of the officers and the focus of their
       investigation.” People v. Brown, 136 Ill. 2d 116, 124-25, 554 N.E.2d 216, 220 (1990). Cf.
       People v. Gorman, 207 Ill. App. 3d 461, 473, 565 N.E.2d 1349, 1356-57 (1991) (clarifying
       the officers’ intent, knowledge, and focus of investigation are relevant in the “limited[ ]
       context” of (1) determining whether the officers’ verbal and nonverbal conduct created a
       coercive atmosphere and (2) resolving conflicts between the defendant’s version of the facts
       and the State’s).
¶ 19       Here, the parties agree that defendant was not given Miranda warnings until after she
       confessed to possessing cannabis, relinquished the cannabis hidden on her person, and led
       officers to the cannabis concealed in Zaloudek’s vehicle. Further, defendant clearly made the
       suppressed statements in response to “questioning initiated by law enforcement officers”;
       thus, defendant was subjected to interrogation. On these facts, if defendant’s statements were
       made while she was in custody, then the trial court’s suppression order was not erroneous.
¶ 20       The question whether defendant was in custody is not settled simply by the fact that she
       was not free to leave when Deputy Netter questioned her. The Supreme Court has refused
       to adopt a bright-line rule whereby a detainee during a traffic stop either must be given
       Miranda warnings at the outset of questioning or need not be given the warnings until
       formally arrested. Berkemer v. McCarty, 468 U.S. 420, 441 (1984). Generally, due to the
       “noncoercive aspect of ordinary traffic stops,” a person temporarily detained during a traffic
       stop is not in custody. Id. at 440. However, if such a person “thereafter is subjected to

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       treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full
       panoply of protections prescribed by Miranda.” Id.
¶ 21       Here, defendant was in custody during questioning and was, accordingly, entitled to
       Miranda warnings. Defendant was detained and isolated from Zaloudek for some 27 minutes
       before she confessed to possessing cannabis. Defendant’s isolation ensured that Zaloudek
       would be unavailable to testify as an occurrence witness on defendant’s behalf and vice
       versa. Moreover, it allowed that defendant and Zaloudek could be played against each other
       as each was removed from the other’s range of observation and questioning was alternated
       between them; neither could know what possibly incriminating information the other was
       disclosing. Even an innocent person in defendant’s position, not privy to her ally’s
       disclosures, could have been unnerved by the possibility of facing untrue allegations, levied
       by a self-interested friend under the pressure of savvy interrogation practices. Miranda was
       decided in recognition of the skilled interrogator’s ability to compel a person to relinquish
       his fifth-amendment rights. Miranda, 384 U.S. at 457-58 (“It is obvious that such an
       interrogation environment is created for no purpose other than to subjugate the individual to
       the will of his examiner. *** Unless adequate protective devices are employed to dispel the
       compulsion inherent in custodial surroundings, no statement obtained from the defendant can
       truly be the product of his free choice.”). By defendant’s isolation from Zaloudek, Deputy
       Netter enjoyed an advantage in interrogating defendant that may have interfered with the free
       exercise of her constitutional rights.
¶ 22       Further, defendant was locked in a squad car for about 23 minutes. By indicating he
       intended to send for drug-detecting dogs, Deputy Netter threatened to extend this detention
       indefinitely; defendant could have reasonably concluded that her initial insistence of
       innocence was not satisfactory and she would not be allowed to leave until she confessed to
       suspected wrongdoing. See id. at 468 (“It is not just the subnormal or woefully ignorant who
       succumb to an interrogator’s imprecations, whether implied or expressly stated, that the
       interrogation will continue until a confession is obtained or that silence in the face of
       accusation is itself damning and will bode ill when presented to a jury.” (Emphasis added.)).
¶ 23       The object of the police investigation in this case was clearly to catch defendant and
       Zaloudek in a crime in progress, despite the officers’ starting with little actual evidence of
       wrongdoing. Although defendant was told she was not in any trouble, this assertion was
       contradicted by Deputy Netter’s asking questions designed to elicit incriminating responses,
       locking defendant in the squad car, and conducting a full search of Zaloudek’s vehicle,
       including, defendant was told, an anticipated drug sniff. Defendant’s detention in the
       backseat of the locked squad car–where arrested individuals are detained–and the presence
       of twice as many law-enforcement officers as detainees at the scene created a “police-
       dominated atmosphere” suggesting custody and reinforced to defendant that she was targeted
       by the investigation. Id. at 445. Cf. People v. Croom, 379 Ill. App. 3d 341, 351-52, 883
       N.E.2d 681, 689-90 (2008) (noting, toward finding the defendant was not in custody, that the
       police van in which the defendant was questioned was unmarked, had no radio and no cage,
       and remained unlocked except when moving).
¶ 24       By the time defendant confessed, defendant’s detention could no longer be fairly
       characterized as an “ordinary” traffic stop, during which noncoercive, conversational

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       questioning of the driver and passenger may be said not to be custodial. Berkemer, 468 U.S.
       at 439. Instead, what began as an investigation into a suspected seatbelt violation had been
       transformed into a full-fledged drug search.
¶ 25       Finally, we find it troubling that the audio portion of the recording of the interrogation
       during which defendant implicated herself is conspicuously absent. The recording indicates
       Deputy Netter’s microphone was shut off for the approximately eight minutes beginning
       when he returned to his squad car to question defendant for the second time and ending after
       her confession was obtained. Even allowing for the possibility of inadvertence, the
       incompleteness of the recording needlessly encumbers the analysis of whether defendant was
       questioned in a custodial atmosphere and raises doubts as to the purpose and value of such
       recordings. Clearly, more was said during the questioning than Deputy Netter testified to at
       the suppression hearing. The full contents of the interview may have rendered it more
       obviously unconstitutional.
¶ 26       Defendant was questioned while in custody without receiving Miranda warnings and
       waiving her right against self-incrimination and her right to counsel. Accordingly, the trial
       court did not err in concluding that the evidence obtained as a result of the questioning is
       inadmissible.

¶ 27                                  III. CONCLUSION
¶ 28      For the foregoing reasons, we affirm the trial court’s judgment.

¶ 29      Affirmed.




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