                          NO. 4-05-0223        Filed: 1/4/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,     ) Appeal from
          Plaintiff-Appellant,           ) Circuit Court of
          v.                             ) Morgan County
LaDONNA M. BARKER,                       ) No. 04CF106
          Defendant-Appellee.            )
                                         ) Honorable
                                         ) Richard T. Mitchell,
                                         ) Judge Presiding.
_________________________________________________________________

           JUSTICE KNECHT delivered the opinion of the court:

           In 2004, the State charged defendant, LaDonna M.

Barker, with unlawful possession of methamphetamine-manufacturing

chemical with intent to manufacture.   720 ILCS 570/401(d-5) (West

2004).   In October 2004, defendant filed a motion to suppress

evidence, which the trial court granted.    The State appeals,

arguing the trial court erred in granting defendant's motion to

suppress evidence.   We reverse and remand.

                           I. BACKGROUND

           In June 2004, the State charged defendant with unlawful

possession of methamphetamine-manufacturing chemical with intent

to manufacture.   720 ILCS 570/401(d-5) (West 2004).   She was a

passenger in her own vehicle driven by Robert Shaffer on the

night of June 26, 2004, when it was stopped for a traffic viola-

tion, malfunctioning headlights.   625 ILCS 5/12-201(b) (West

2004) (two functioning headlamps required).    After the traffic

stop was complete, the vehicle was searched and the alleged

methamphetamine-manufacturing chemical found.    In October 2004,
defendant filed a motion to suppress evidence alleging, among

other things, (1) no search or arrest warrant justified the

search and seizure; (2) the search had no reasonable connection

to the traffic stop; and (3) no reasonable, articulable suspicion

existed to search the vehicle once the traffic stop was complete.

            In February 2005, the trial court conducted a hearing

on the motion to suppress.    Officer Adam Mefford was the only

witness to testify.    He was on patrol on Saturday evening, June

26, 2004.    Officer Mefford saw a car heading toward him with only
one headlight working.    He stopped the vehicle because of the

malfunctioning headlight.    Officer Mefford informed the driver,

Robert Shaffer, of the problem with the headlight.        He asked for

Shaffer's driver's license and insurance card.        Defendant, a

passenger in the vehicle, stated she owned the vehicle and would

try to find the insurance card.

            Shaffer told Officer Mefford he knew the headlight was

not working and asked to exit the vehicle to try to get it to

work.   Officer Mefford agreed.    He then told Shaffer he was going
to issue him a written warning.     Officer Mefford ran a computer

check on Shaffer's driver's license and discovered Shaffer had a

criminal history and had been convicted of a drug offense.

            Officer Mefford returned to the vehicle and handed

Shaffer the warning ticket.    As he did so, he noticed a 12-pack

of beer in the backseat with some containers missing.        Officer

Mefford knew it was legal to have an opened cardboard package of

beer in the car, but he asked Shaffer if any of the containers of

beer were open inside the vehicle.        When Shaffer said "no,"

Officer Mefford asked Shaffer if he could search the vehicle to

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ensure that fact.   Shaffer said "yes."   Officer Mefford testified

no pause occurred between the return of Shaffer's license and

warning ticket and either of his two questions.   The contraband

in question was discovered during the search.

           The trial court found the initial stop was a valid,

proper traffic stop.   It then evaluated whether the questioning

of Shaffer was reasonably related to the stop.    The court stated

even though the partial 12-pack of beer was legal, it was proper

for Officer Mefford to inquire if there were any open cans in the
car.   However, once that question was answered in the negative,

because the officer did not testify to anything else, such as the

odor of alcohol, the request to search was not proper.   The

partial 12-pack in the backseat did not create a reasonable

suspicion of criminal activity.    Thus, the stop was impermissibly

prolonged and the nature of the stop was changed.   Based on these

findings, the trial court granted the motion to suppress.

           This appeal followed.

                           II. ANALYSIS
           On appeal, the State argues the trial court erred in

granting defendant's motion to suppress evidence.   We agree.

                       A. Standard of Review

           Reviewing a trial court's ruling on a motion to sup-

press involves mixed questions of fact and law.   People v. Gherna

203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003).   On review, we

give great deference to the trial court's factual findings and

will reverse those findings only if they are against the manifest

weight of the evidence.   Gherna, 203 Ill. 2d at 175, 784 N.E.2d

at 805.   However, we review the trial court's legal determination

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of whether suppression is warranted under those facts de novo.

Gherna, 203 Ill. 2d at 175, 784 N.E.2d at 805.    Defendant had the

initial burden of proving the search and seizure were unlawful on

the motion to suppress evidence.    725 ILCS 5/114-12(b) (West

2004).   "However, once the defendant makes a prima facie showing

of an illegal search and seizure, the burden shifts to the State

to produce evidence justifying the intrusion."    People v. Ortiz,

317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000).

                   B. Granting of Motion To Suppress

             The fourth amendment to the United States Constitution

guarantees the "right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable searches

and seizures."    U.S. Const., amend. IV.   The search and seizure

language found in section 6 of article I of the Illinois Consti-

tution is construed in a manner consistent with the United States

Supreme Court's interpretation of the fourth amendment.     Ill.

Const. 1970, art. I, §6; People v. Gonzalez, 204 Ill. 2d 220,

224, 789 N.E.2d 260, 264 (2003).

          The temporary detention of an individual during a

vehicle stop is a seizure within the meaning of the fourth

amendment.    Gonzalez, 204 Ill. 2d at 225, 789 N.E.2d at 264.     All

occupants within the vehicle are considered to be seized.

Gonzalez, 204 Ill. 2d at 225, 789 N.E.2d at 264.

          Although traffic stops are often supported by probable

cause, as in this case, the reasonableness of the stop is ana-

lyzed under Terry principles (Terry v. Ohio, 392 U.S. 1, 21-22,

20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968)).    Gonzalez,

204 Ill. 2d at 226, 228, 789 N.E.2d at 265-66 (noting that "as a

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general rule, a fourth amendment challenge to the reasonableness

of a traffic stop is analyzed under Terry principles" and "Terry

principles apply even in the presence of probable cause").

          In Terry, the Court established a dual inquiry for

deciding whether an investigative detention is reasonable: (1)

"whether the officer's action was justified at its inception" and

(2) "whether it was reasonably related in scope to the circum-

stances which justified the interference in the first place."

Terry, 392 U.S. at 20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879.

          In Gonzalez, the Supreme Court of Illinois set forth

the analysis for determining whether police conduct during the

course of a traffic stop satisfies Terry's scope requirement.

Gonzalez, 204 Ill. 2d at 235, 789 N.E.2d at 270.   Gonzalez

requires us to determine whether Officer Mefford's questioning of

Shaffer was related in scope to the circumstances that justified

the stop in the first place.   If so, no fourth-amendment viola-

tion occurred.   Gonzalez, 204 Ill. 2d at 235, 789 N.E.2d at 270.

If the questioning was not reasonably related to the purpose of

the stop, we must consider whether the law-enforcement officer

had a reasonable, articulable suspicion that would justify the

questioning.   If the questioning is so justified, no fourth-

amendment violation occurs.    Gonzalez, 204 Ill. 2d at 235, 789
N.E.2d at 270.   Absent a reasonable connection to the purpose of

the stop or a reasonable, articulable suspicion "we must consider

whether, in light of all the circumstances and common sense, the

question impermissibly prolonged the detention or changed the

fundamental nature of the stop."   Gonzalez, 204 Ill. 2d at 235,

789 N.E.2d at 270.

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           Applying Gonzalez to the facts here, we find under

these circumstances, Officer Mefford had a reasonable,

articulable suspicion to justify his questions as a matter of law

after the traffic stop was complete.   We find his request to

search the vehicle was reasonable, and the driver gave his

consent.   We therefore reverse.

           At issue is whether the trial court erred in granting

defendant's motion to suppress, finding (1) it was proper for

Officer Mefford to question Shaffer concerning any open beer

containers but (2) once that question was answered in the nega-

tive, Officer Mefford had no reasonable, articulable suspicion of

criminal activity and (3) the traffic stop was impermissibly

prolonged and the nature of the stop was changed by Mefford's

actions in asking for permission to search the vehicle.

           The traffic stop in this case began when Officer

Mefford observed the vehicle's malfunctioning headlights.     The

parties agree the traffic stop was otherwise complete when

Officer Mefford handed the warning ticket to Shaffer.    The State

argues Officer Mefford's interaction with the driver was a

consensual encounter not subject to Terry principles or, alterna-
tively, if a seizure occurred, any detention would have been

justified by reasonable suspicion of an open-container violation.

Defendant responds (1) she and Shaffer continued to be seized

when Officer Mefford asked Shaffer questions at the end of the

traffic stop; (2) no reasonable, articulable suspicion justified

Officer Mefford's request to search the vehicle; and (3) Officer

Mefford's question immediately after the traffic stop was other-

wise complete would make a reasonable person believe the stop was

                               - 6 -
not complete and he or she was not free to leave.   We disagree.

           In applying the Gonzalez framework, we find Officer

Mefford did not exceed the scope of the stop by asking if Shaffer

had any open containers of beer in the car.   Once Shaffer an-

swered in the negative, Officer Mefford asked if he could conduct

a search to verify no open containers of beer were in the car.

The questions posed to Shaffer were not related to the initial

justification for the stop for malfunctioning headlights, but the

questions were based on a reasonable, articulable suspicion of

criminal activity.

           Officer Mefford made no mention of unusual odors

emanating from the vehicle or of the occupants exhibiting any

evidence of alcohol consumption.   He noted Shaffer had no out-

standing warrants but had a previous conviction for a drug

offense.   He also noted Shaffer was nervous and had a hard time

sitting still.

           Officer Mefford saw a 12-pack of beer in the backseat

with some of the containers missing from the package.   Section

11-502 of the Illinois Vehicle Code (625 ILCS 5/11-502 (West

2002)) prohibits a driver or passenger from having any alcoholic

liquor within any passenger area of any motor vehicle upon a

highway except in the original container with the seal unbroken.

An officer encountering occupants of a vehicle late on a summer

Saturday night with a 12-pack of beer minus a bottle or two would

have reasonable suspicion to believe that criminal activity,

i.e., drinking and driving, was afoot.   We note the decision in

People v. Nadermann, 309 Ill. App. 3d 1016, 1021, 723 N.E.2d 857,

862 (2000), which held a ripped cardboard beer package holding

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beer cans with some missing is by itself innocuous and not

evidence of open individual containers of beer.    That case

involved the issue of probable cause, whereas this case involves

reasonable suspicion.

            Considering the number of drunk-driving arrests and

accidents on Illinois roadways, asking whether any open contain-

ers were in the vehicle under these circumstances was based on a

reasonable, articulable suspicion of criminal activity.    See

Michigan Department of State Police v. Sitz, 496 U.S. 444, 451,

110 L. Ed. 2d 412, 420, 110 S. Ct. 2481, 2485 (1990) (states have

an interest in eradicating problem of drunk driving); King v.

Ryan, 153 Ill. 2d 449, 461, 607 N.E.2d 154, 160 (1992) (Illinois

has a "compelling interest in protecting its citizens from the

hazards caused by intoxicated drivers"); Koeck v. Edgar, 180 Ill.

App. 3d 332, 337, 535 N.E.2d 1019, 1022 (1989) (public has an

interest in "curbing the epidemic number of deaths and injuries

attributable to drunk driving by keeping unsafe drivers off the

street").    It was a reasonable question, and it was good police

work, considering the danger when citizens engage in drinking and

driving.

            Officer Mefford's second question as to whether he

could search the vehicle to ensure there were no open containers

was also based on a reasonable, articulable suspicion of criminal

activity.    Such a question was a reasonable follow-up that was

justified by the situation.    A driver of a vehicle who has been

drinking and driving is not likely to meekly admit the presence

of open containers and offer them up for inspection.    Considering

the importance of keeping our roadways safe, Officer Mefford's
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request to search to ensure no open containers were present was

not unreasonable.

          We also find Officer Mefford's questions to the driver

after the stop was complete amounted to a consensual encounter.

Shaffer, as the driver of the vehicle, had authority to consent

to the search even though defendant, the owner of the vehicle,

was present as a passenger.    "A driver of a vehicle has authority

to consent to a search of the vehicle because he has immediate

possession and control of the entire vehicle.    [Citations.]     This
is true even when the owner of the vehicle is present and does

not object to the search."     People v. Sanchez 292 Ill. App. 3d

763, 769, 686 N.E.2d 367, 371 (1997); see also People v. Mendoza,

234 Ill. App. 3d 826, 835, 599 N.E.2d 1375, 1381 (1992) (driver

has authority to consent to a vehicle search as the defendant,

who was present, never objected to the search); People v. Harris,

199 Ill. App. 3d 1008, 1013, 557 N.E.2d 1277, 1280 (1990) ("a

defendant assumes the risk that the driver will allow someone to

look inside [the vehicle]").    In this case, defendant did not

voice her objection to the search or limit Shaffer's consent.

Thus, Shaffer had authority to consent to the search.

          The facts of the present case are similar to those in

our recent opinion in People v. Ramsey, 362 Ill. App. 3d 610, 839
N.E.2d 1093 (2005).   In that case, a police officer stopped the

defendant driver because of a cracked windshield.    Ramsey, 362

Ill. App. 3d at 615, 839 N.E.2d at 1098.    After returning the

driver's documents, the officer asked him if he had anything

illegal in the truck, and when the defendant stated no, the

officer asked for consent to search the vehicle, to which the

                                 - 9 -
defendant agreed.    Ramsey, 362 Ill. App. 3d at 616, 839 N.E.2d at

1099.

            This court found the officer had a reasonable,

articulable suspicion of criminal activity.        Ramsey, 362 Ill.

App. 3d at 616, 839 N.E.2d at 1099.        Moreover, we found the

questions posed by the officer amounted to a consensual encoun-

ter.    Ramsey, 362 Ill. App. 3d at 618, 839 N.E.2d at 1100.

                  "The fact that a police officer poses

            questions to a driver after the purpose of

            the traffic stop has concluded does not auto-

            matically amount to a seizure.      In a consen-

            sual conversation, the officer could pose

            questions to the driver or request consent to

            search the vehicle.    Therein, the driver

            could decline to answer the officer's ques-

            tions or refuse to give his consent.      Unless

            the totality of the circumstances indicate a

            reasonable person would not have felt free to

            leave, no seizure has occurred and the defen-

            dant's consent to search the vehicle is not

            constitutionally prohibited."      Ramsey, 362
            Ill. App. 3d at 619-20, 839 N.E.2d at 1101-

            02.

            As we noted in Ramsey, an officer may not demand or

direct compliance, but in this case there was no show of force,

brandishing of weapons, blocking of the vehicle's path, threats

or commands, or an authoritative tone of voice.        The questions

posed by Officer Mefford did not force the driver to cooperate.

                                  - 10 -
           As a practical matter, it is unrealistic to say this

was a friendly, innocuous encounter.    Officer Mefford sought

information and wanted Shaffer to consent.    We believe many

citizens would remain at the scene and comply with an officer's

request believing they had no choice.    However, absent some show

of authority beyond the verbal request, the law presumes a

reasonable person would feel free to decline the request and

depart.   "Police officers act in full accord with the law when

they ask citizens for consent."    United States v. Drayton, 536

U.S. 194, 207, 153 L. Ed. 2d 242, 255, 122 S. Ct. 2105, 2114

(2002).   Here, the evidence demonstrates Shaffer's consent was

voluntarily given.

                          III. CONCLUSION

          We reverse the trial court's grant of defendant's

motion to suppress and remand.

          Reversed and remanded.

          STEIGMANN, P.J., and TURNER, J., concur.




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