                                         2014 IL App (3d) 120676

                                 Opinion filed October 27, 2014
                  Modified opinion upon denial of rehearing filed January 8, 2015
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
     OF ILLINOIS,                           ) of the 14th Judicial Circuit,
                                            ) Henry County, Illinois
           Plaintiff-Appellee,              )
                                            ) Appeal No. 3-12-0676
           v.                               ) Circuit No. 08-CF-165
                                            )
     NORMAN E. THOMAS,                      ) Honorable
                                            ) Charles H. Stengel,
           Defendant-Appellant.             ) Judge, Presiding.
     ______________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justice Holdridge concurred in the judgment and opinion.
            Justice O'Brien concurred in the judgment.


                                                 OPINION

¶1          After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of

     possession of a controlled substance (720 ILCS 570/402(c) (West 2008)) and resisting a peace

     officer (720 ILCS 5/31-1(a), (a-7) (West 2008)). The trial court sentenced defendant to 30

     months' conditional discharge. Defendant appealed, and this court remanded for further

     proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant

     filed motions for a new trial and to reconsider his amended motion to suppress evidence. Both

     motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of

     misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive
     possession of cocaine; (3) he received ineffective assistance of trial counsel; (4) he was

     unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat

     on; and (5) the officer's request regarding the windows and heat constituted an unlawful search.

     We affirm in part, modify in part, and remand for further proceedings.

¶2                                                 FACTS

¶3          Defendant was charged by amended information with unlawful possession of a controlled

     substance (720 ILCS 570/402(c) (West 2008)), resisting or obstructing a peace officer (720 ILCS

     5/31-1(a), (a-7) (West 2008)), and obstructing justice (720 ILCS 5/31-4(a) (West 2008)).

     Defense counsel filed a motion to suppress evidence, arguing that excessive force had been used

     by the police. The motion stated that the car defendant was riding in was stopped by Officer

     William Rivord for failing to dim its bright lights. Defendant and the driver, William Gordon,

     told Rivord that there was nothing illegal in the car and they did not consent to a search. Rivord

     conducted a free-air sniff with his canine unit. After the search, Rivord told defendant and

     Gordon that the dog had alerted and he was going to search the vehicle. The motion alleged that

     Rivord and Sergeant Pat Clapper used excessive force to obtain evidence from defendant after he

     exited the vehicle.

¶4          At the hearing on defendant's motion, Gordon testified that on the night of May 3, 2008,

     he was driving defendant's blue Lincoln when he was stopped by Rivord for failing to dim his

     bright lights. Defendant was a passenger in the vehicle and was unable to drive because he did

     not have a valid driver's license. During the stop, Rivord instructed Gordon to start the Lincoln

     and roll the windows up while Rivord walked his dog around the car. Thereafter, Rivord told

     Gordon that the dog had alerted and ordered Gordon and defendant out of the car. As Rivord

     escorted Gordon out of the Lincoln, Gordon heard a second police officer yell at defendant.

     Gordon saw the second officer call for backup as he was choking defendant on the ground.

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¶5          Defendant testified that on the date of the stop, he was riding in his Lincoln with Gordon

     when the vehicle was stopped by Rivord. Rivord asked for Gordon's driver's license, vehicle

     registration, and proof of insurance. After obtaining the documents, Rivord instructed defendant

     and Gordon to wait in the car while he returned to his patrol car. Thereafter, Rivord handed the

     documents back, and he asked Gordon to roll up the windows and turn on the heat because he

     was going to walk his dog around the car. Following the free-air sniff, Rivord directed defendant

     and Gordon to exit the car. As defendant got out of the car, two prescription Vicodin pills fell

     off of his coat and onto the ground. Defendant picked up the pills and put them in his mouth. At

     that point, Clapper forced defendant to the ground, ordered defendant to open his mouth, and

     choked defendant. Defendant opened his mouth and did not resist the officer. Eventually,

     defendant lost consciousness and awoke the following day in a hospital.

¶6          On cross-examination, defendant stated that he had swallowed the Vicodin pills that fell

     on the ground, and he did not recall Clapper's order to step away from a baggie that fell to the

     ground as he exited the vehicle. Defendant reported that he dropped a piece of plastic that

     contained the Vicodin pills, but contended that he did not have a baggie. Defendant did not take

     the pills earlier in the stop because he forgot about them while he was looking for the documents

     that Rivord had requested.

¶7          Rivord testified that he stopped a blue Lincoln at approximately 11:30 p.m. on May 3,

     2008, for driving with its bright lights on. Initially, Rivord approached the driver's side window

     and asked for Gordon's driver's license and proof of insurance. After receiving the documents,

     Rivord advised Gordon and defendant that he was a canine officer and asked if there was

     anything in the Lincoln that he needed to know about. Defendant and Gordon replied in the

     negative, and Rivord said that he was going to conduct a free-air sniff. Rivord asked Gordon to

     roll up the vehicle windows and turn the heat on. Rivord "immediately, before doing anything

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       else, got [his] dog out and walked the dog around the car." The dog alerted on defendant's side

       of the Lincoln by the passenger door. Rivord returned the dog to his patrol car and reapproached

       the Lincoln. Sometime after the stop began, Clapper arrived at the scene.

¶8              Following the dog alert, Rivord approached the driver's side door, and Clapper walked up

       to the passenger door. Rivord informed defendant and Gordon of the dog alert and directed them

       to exit the vehicle. As Rivord and Gordon reached the back corner of the Lincoln, Rivord saw

       defendant get out of the car, and he heard Clapper command defendant to leave something on the

       ground. Defendant bent over, picked something up, and placed it in his mouth. Clapper told

       Rivord that defendant had put a baggie containing a white substance in his mouth, and he

       grabbed defendant. Rivord ran to Clapper's assistance, and the officers and defendant fell to the

       ground in a struggle. Defendant did not obey the officers' commands to place his hands behind

       his back or to open his mouth. Rivord saw what appeared to be chewed-up pieces of crack on

       defendant's lips and tongue. Eventually, the officers restrained defendant and put pieces of the

       substance from defendant's mouth in an evidence bag and bagged pieces of the substance that

       were lying on the ground.

¶9              On cross-examination, Rivord stated that he began the free-air sniff five to seven minutes

       into the stop. Rivord said that the substance in defendant's mouth did not look like a prescription

       pill and, based on his training, he thought the substance was chewed-up pieces of crack cocaine.

       During a search of the vehicle, officers discovered cocaine between the driver and passenger

       seats.

¶ 10            The trial court found that Rivord was a credible witness, there was probable cause for the

       free-air sniff, and there was no delay. The trial court denied defendant's motion to suppress.

¶ 11            On June 16, 2009, the court dismissed the obstructing justice charge. Following a

       stipulated bench trial, defendant was found guilty of unlawful possession of a controlled

                                                       -4-
       substance and resisting a peace officer. The trial court sentenced defendant to 30 months'

       conditional discharge, and defendant appealed.

¶ 12           In the first appeal, we held that the parties and the court intended that the stipulated

       proceedings were not to operate as a guilty plea. People v. Thomas, 2011 IL App (3d) 090886-

       U. As a result, we remanded the cause to the trial court for admonishments pursuant to Illinois

       Supreme Court Rule 605(b) (eff. Oct. 1, 2001).

¶ 13           Following the remand, defendant filed a motion for new trial and to reconsider his

       amended motion to suppress. At the reconsideration hearing, Rivord testified that he stopped the

       vehicle defendant was riding in for failing to dim its headlights in the face of oncoming traffic.

       Defendant testified, in response, that there was no oncoming traffic. The trial court found

       Rivord's testimony more credible and denied the motion to suppress. Defendant appeals.

¶ 14                                                ANALYSIS

¶ 15           On appeal, defendant argues that: (1) trial counsel rendered ineffective assistance when

       he failed to argue that the free-air sniff unlawfully prolonged the traffic stop; (2) the evidence

       was insufficient to sustain his conviction of resisting a peace officer and possession of a

       controlled substance; (3) the officer's request to roll up the windows and turn on the heater prior

       to the dog sniff was an unlawful seizure; and (4) the dog-sniff search was an unreasonable search

       of the vehicle's interior.

¶ 16                                           I. Motion to Suppress

¶ 17           Defendant argues that reversal of the trial court's ruling on his motion to suppress is

       warranted for two reasons: (1) he received ineffective assistance of counsel; or (2) he was

       unlawfully seized and searched as result of the officer's orders to roll up the vehicle windows and

       turn on the heater. In reviewing a trial court's ruling on a motion to suppress evidence, we apply

       a two-part standard of review. People v. Cosby, 231 Ill. 2d 262, 271 (2008). A trial court's

                                                        -5-
       findings of fact will only be reversed where they are against the manifest weight of the evidence.

       People v. Hackett, 2012 IL 111781, ¶ 18. We review de novo the trial court's ultimate legal

       ruling as to whether suppression is warranted. Id.

¶ 18                                   A. Ineffective Assistance of Counsel

¶ 19          Defendant argues that counsel was ineffective for failing to challenge the length of the

       stop, which was unnecessarily prolonged by the free-air sniff.

¶ 20          To prevail on an ineffective assistance of counsel claim, defendant must show that: (1)

       counsel's representation fell below an objective standard of reasonableness; and (2) the deficient

       performance so prejudiced defendant as to deny him a fair trial. Strickland v. Washington, 466

       U.S. 668 (1984); People v. Bew, 228 Ill. 2d 122, 127 (2008). Specifically, defendant must prove

       that counsel's performance was objectively unreasonable under prevailing professional norms

       and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

       proceeding would have been different. People v. Hughes, 2012 IL 112817, ¶ 44.

¶ 21          The federal and state constitutions protect citizens from unreasonable searches and

       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Stopping a vehicle and detaining

       its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); People v.

       Harris, 228 Ill. 2d 222 (2008). An initially lawful seizure can violate the fourth amendment if its

       manner of execution unreasonably infringes interests protected by the Constitution. Illinois v.

       Caballes, 543 U.S. 405, 407 (2005); Harris, 228 Ill. 2d at 235. For example, a traffic stop that is

       justified by the interest in issuing a warning ticket to the driver can become unlawful if it is

       "prolonged beyond the time reasonably required to complete that mission." Caballes, 543 U.S.

       at 407; see also Harris, 228 Ill. 2d at 235. "Brevity is an important factor in determining whether

       a detention was reasonable, but the court should also consider whether the police acted diligently

       in pursuing the investigation." People v. Welling, 324 Ill. App. 3d 594, 602 (2001).

                                                        -6-
¶ 22          In the instant case, defense counsel did not argue that Rivord unlawfully prolonged the

       stop by conducting a free-air sniff. The trial evidence showed that Rivord initiated the stop

       because Gordon did not dim his bright lights. Rivord approached the vehicle, asked Gordon for

       the necessary documentation, and stated that he was a canine officer and was going to conduct a

       free-air sniff. The free-air sniff began between five and seven minutes into the stop. While there

       is no talismanic period of time beyond which an initially justified traffic stop becomes an

       unreasonable seizure (People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995)), a number of cases

       hold that approximately 10 to 12 minutes is the average amount of time for a traffic stop with

       warning tickets. See People v. Canizalez-Cardena, 2012 IL App (4th) 110720 (free-air sniff 7 to

       8 minutes into a traffic stop did not prolong the stop and a stop of 10 to 12 minutes to issue a

       warning ticket was reasonable); People v. Kats, 2012 IL App (3d) 100683 (nine-minute stop to

       issue a warning ticket was sufficiently brief); People v. Staley, 334 Ill. App. 3d 358 (2002) (18-

       minute traffic stop that included confirming the status of defendant's driver's license and license

       plate registration and issuing two traffic citations was not unduly long). In light of this record,

       we agree with the trial court that the stop at issue was not unreasonably prolonged.

¶ 23          However, defendant argues that the duration of the seizure is not conclusive of whether

       the stop was prolonged. Rather, defendant contends that the stop was unreasonably prolonged by

       the officer's deviation from writing a warning ticket or citation for the headlight infraction to

       conduct the free-air sniff. See People v. McQuown, 407 Ill. App. 3d 1138 (2011) (stop was

       unduly prolonged where officer did not ask for a canine unit until 13 minutes after the initial

       purpose of the stop had ended, and canine unit did not arrive for an additional 25 minutes);

       People v. Al Burei, 404 Ill. App. 3d 558 (2010) (stop of vehicle was unreasonably prolonged by

       officer's continued questions after the initial purpose of the stop had been satisfied); People v.



                                                       -7-
       Baldwin, 388 Ill. App. 3d 1028 (2009) (traffic stop was deemed unreasonably prolonged where

       the stopping officer had to call a second officer to bring a drug dog).

¶ 24          In contrast to defendant's cited cases, Rivord had a drug-sniffing dog in his patrol vehicle

       and conducted the free-air sniff without delay. Rivord did not pose additional questions to delay

       defendant and avoided any undue delay as he was already in possession of the dog.

       Additionally, no additional suspicion or probable cause was required to conduct a free-air sniff

       because the search did not infringe on defendant's privacy interests and only exposed the

       presence of contraband items. Caballes, 543 U.S. 405.

¶ 25          Defendant has not shown that defense counsel's omission of a prolonged stop argument

       altered the outcome of the proceeding. Therefore, defense counsel was not ineffective for failing

       to advance a meritless argument.

¶ 26                                          B. Search and Seizure

¶ 27                                                1. Seizure

¶ 28          Defendant argues that if we do not reverse the denial of his motion to suppress on

       ineffective assistance grounds, remand is necessary to determine if defendant was unreasonably

       seized as a result of the officer's request to roll up the car windows and turn on the heat.

       Initially, we note that defendant was lawfully seized at the time the vehicle he was riding in was

       stopped for a traffic violation. See Brendlin v. California, 551 U.S. 249 (2007) (passengers in a

       stopped vehicle are lawfully seized at the time the vehicle is stopped by the police). Until the

       traffic stop was complete, defendant was not free to leave and therefore could not be subject to a

       second, simultaneous seizure. See People v. Ortiz, 317 Ill. App. 3d 212, 221 (2000)

       (investigative stop was complete after officer returned defendant's driver's license and issued a

       warning).

¶ 29          In his petition for rehearing, defendant takes issue with our ruling that ordering the

                                                       -8-
       defendant to roll up his windows and turn on the fan was not a second seizure. In support, he

       cites the dissent in People v. Bartelt, 241 Ill. 2d 217, 245-46 (2011) (Freeman, J, dissenting). We

       find that the issue of whether the relevant police conduct was a "second seizure" or a "search," is

       a semantic one. Was it a search or a second seizure? Pick one; it does not matter. We find that

       the notion of a "second seizure" of someone who is already seized somewhat confusing. Had the

       police, after ordering defendant to roll up his windows and turn on the fan, then ordered the

       driver to hit the trunk release button, would that be a "third seizure" or a "double-secret seizure?"

       As set forth below, we believe that the setup procedure at issue constituted a search and not a

       seizure. The bottom line is the same.

¶ 30                                                2. Search

¶ 31          Defendant also contends that he was subject to an illegal search when he was ordered to

       roll up the windows and turn on the heater prior to the dog sniff.

¶ 32          As a matter of first impression, in People v. Bartelt, 241 Ill. 2d 217, our supreme court

       held that the setup procedure of ordering a vehicle occupant to roll up her windows and turn the

       blowers on high before an officer conducted a dog sniff of the exterior of the vehicle was not an

       unreasonable search. In support of its decision, the court analogized the setup to the suitcase

       "prepping" procedure affirmed by the Fifth Circuit in United States v. Viera, 644 F.2d 509, 510

       (5th Cir. 1981). In Viera, Drug Enforcement Administration agents "prepped" the defendants'

       suitcases before a dog sniff by pressing them lightly with their hands and slowly circulating the

       air in order to procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth Circuit reasoned

       that the "prepping" procedure was not a search in violation of the fourth amendment because a

       light press of the hands along the outside of the suitcases was not so intrusive as to require a

       different result. Id. In relying on Viera, our supreme noted that "ordering defendant to roll up

       her windows and turn the blowers on high before conducting the dog sniff was not sufficiently

                                                       -9-
       intrusive" as to offend the fourth amendment. Bartelt, 241 Ill. 2d at 231.

¶ 33          The Bartelt decision requires that we affirm the trial court's ruling on the motion to

       suppress; however, we believe that Bartelt will ultimately be overruled by the United States

       Supreme Court. As these setup procedures become more common, the United States Supreme

       Court will undoubtedly grant certiorari in a similar case. We acknowledge that one has a lesser

       expectation of privacy in a motor vehicle because its function is transportation and it seldom

       serves as one's residence or as the repository of personal effects. Cardwell v. Lewis, 417 U.S.

       583, 590 (1974). A car has little capacity for escaping public scrutiny; it travels public

       thoroughfares where its occupants and its contents are in plain view. See Cardwell, 417 U.S. at

       590; People v. DeRusha, 74 Ill. App. 3d 641, 644 (1979). The occupant of the vehicle does not

       have a reasonable expectation of privacy against police scraping paint samples from the vehicle's

       exterior (Cardwell, 417 U.S. at 591); having a drug dog sniff a vehicle's exterior (Caballes, 543

       U.S. at 409); or electronically monitoring a vehicle's movements on a public street (United States

       v. Knotts, 460 U.S. 276, 282 (1983)).

¶ 34          The situation presented here is inherently different from the situations previously

       addressed by the United States Supreme Court. This is not a "free-air" sniff of the exterior of a

       vehicle. Rather, this is forcing a vehicle's occupant to make available to officers, without a

       warrant, something that is normally on the interior of the car and afforded at least some fourth

       amendment protection. Although a dog sniff is not typically classified as a search, it does not

       mean that the use of a drug-sniffing dog cannot eventually become a search, and an unlawful one

       at that. See Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409 (2013) (holding that an officer's

       use of a drug-sniffing dog on front porch of a home was a trespassory invasion of the curtilage

       which constituted a search for fourth amendment purposes). It is not the dog sniff that offends

       the fourth amendment. It is the police ordering the driver to roll up the windows and activate the

                                                      - 10 -
       fan that crosses the line. This "setup" procedure is analogous to an officer ordering the occupant

       to empty his pockets and throw the contents out the window onto the ground. The occupant

       cooperates, and among his personal effects is a small bag containing contraband. The

       contraband, now in plain view, prompts the officer to place the occupant under arrest. This is

       not, nor could it ever be, the state of fourth amendment jurisprudence. While plain view and

       plain smell are established exceptions to the warrant requirement, ordering a vehicle occupant to

       participate in an assisted sniff of the interior of his vehicle transforms the free-air sniff into a

       search governed by the fourth amendment. However, until the setup procedure employed here

       and in Bartelt is overruled, we must affirm.

¶ 35                                       II. Sufficiency of the Evidence

¶ 36           Defendant argues that the State failed to prove beyond a reasonable doubt that (1) in

       resisting arrest, he caused injury to a police officer, and (2) he had actual or constructive

       possession of the cocaine found between the driver and passenger seats. In a challenge to the

       sufficiency of the evidence, we must determine whether, after viewing the evidence in the light

       most favorable to the prosecution, any rational trier of fact could have found the essential

       elements of the offense beyond a reasonable doubt. People v. Baskerville, 2012 IL 111056, ¶ 31.

¶ 37                                             A. Resisting Arrest

¶ 38           Defendant asks this court to reduce his resisting arrest conviction to a misdemeanor

       because defendant did not stipulate to evidence that a police officer had been injured. The State

       responds that defendant stipulated that the evidence was sufficient to convict and, therefore, he

       cannot argue that the evidence was insufficient to prove his guilt of felony level resisting.

       However, in defendant's first appeal, we held that the stipulated bench trial was not tantamount

       to a guilty plea, as neither the parties nor the court intended it to function as such. People v.

       Thomas, 2011 IL App (3d) 090886-U. Thus, under the law of the case doctrine, we hold that

                                                        - 11 -
       defendant is not proscribed from arguing he was not proved guilty of felony-level resisting.

       People v. Tenner, 206 Ill. 2d 381, 395 (2002).

¶ 39          To prove defendant guilty of felony-level resisting arrest, the State had to prove that

       defendant knowingly resisted a peace officer in the performance of an authorized act and

       proximately caused injury to the officer. 720 ILCS 5/31-1(a), (a-7) (West 2008). Here,

       defendant stipulated to the evidence presented at the preliminary hearing and the motion to

       suppress. We have reviewed the record, and find no evidence presented during either of the

       hearings that the officer was injured. Therefore, we reduce defendant's Class 4 felony conviction

       to a Class A misdemeanor and remand the matter for resentencing. 720 ILCS 5/31-1(a), (a-7)

       (West 2008); Ill. S. Ct. R. 615(b)(3).

¶ 40                                        B. Possession of Cocaine

¶ 41          Defendant argues that the State did not prove beyond a reasonable doubt that he had

       actual or constructive possession of the cocaine found on the front seat of the car.

¶ 42          To convict a defendant of unlawful possession of a controlled substance, the State must

       prove beyond a reasonable doubt that defendant had knowledge of the presence of the controlled

       substance and that he had immediate and exclusive possession or control of the substance.

       People v. Woods, 214 Ill. 2d 455, 466 (2005). "Actual possession is the exercise by the

       defendant of present personal dominion over the illicit material and exists when a person

       exercises immediate and exclusive dominion or control over the illicit material." People v.

       Givens, 237 Ill. 2d 311, 335 (2010). "Constructive possession exists without actual personal

       present dominion over a controlled substance, but with an intent and capability to maintain

       control and dominion." People v. Frieberg, 147 Ill. 2d 326, 361 (1992). Constructive possession

       may exist where there is no physical possession if a defendant has an intent and capacity to

       maintain control and dominion over the contraband. People v. Drake, 288 Ill. App. 3d 963, 969

                                                        - 12 -
       (1997).

¶ 43             In the instant case, police found cocaine between the driver and passenger seats.

       Defendant owned the vehicle. Defendant testified that he was a passenger at the time and, during

       the stop, he went through the glove compartment to find the documents that Rivord had

       requested. After the free-air sniff, Rivord approached the driver's side, and Clapper approached

       the passenger's side. Thereafter, an altercation occurred on the passenger's side when defendant

       refused to spit out a white substance that he had placed in his mouth. Viewed in the light most

       favorable to the State, this evidence was sufficient for the trier of fact to reasonably infer that

       defendant had constructive possession of the cocaine.

¶ 44                                              CONCLUSION

¶ 45             For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed

       in part and modified in part, and the cause is remanded for further proceedings.

¶ 46             Affirmed in part and modified in part; cause remanded.




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