                                          2018 IL App (3d) 150654

                                   Opinion filed July 25, 2018
       _____________________________________________________________________________

                                                   IN THE

                                     APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2018

       THE PEOPLE OF THE STATE OF                      )        Appeal from the Circuit Court
       ILLINOIS,                                       )        of the 14th Judicial Circuit,
                                                       )        Henry County, Illinois.
              Plaintiff-Appellee,                      )
                                                       )        Appeal No. 3-15-0654
              v. 	                                     )        Circuit No. 14-CF-334

                                                       )

       STEVEN J. VARNAUSKAS,                           )        Honorable

                                                       )        Terence M. Patton,
              Defendant-Appellant.                     )        Judge, presiding.
       _____________________________________________________________________________

             PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. 

             Justice Schmidt concurred in the judgment and opinion. 

             Justice McDade dissented, with opinion.

       _____________________________________________________________________________

                                                 OPINION

¶ 1	   Following a jury trial, defendant, Steven J. Varnauskas, was convicted of two counts of

       controlled substance trafficking (720 ILCS 570/401.1(a) (West 2014)) and sentenced to two

       concurrent 40-year terms of imprisonment. On appeal, defendant argues that the trial court erred

       in denying his motion to suppress evidence. We affirm.

¶2                                                 FACTS

¶3            On November 14, 2014, at 11 p.m., Illinois State Police Trooper Sean Veryzer was in his

       squad car in the center median of Interstate 80 (I-80) when defendant’s vehicle passed him
     traveling eastbound. Veryzer noticed that defendant’s rear license plate was obscured by an

     empty bicycle rack attached to the car. Based on the fact that the license place was obscured by

     the bicycle rack, Veryzer executed a traffic stop of defendant’s vehicle for a suspected violation

     of section 3-413(b) of the Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)). At the time,

     section 3-413(b) provided:

                    “Every registration plate shall at all times be securely fastened in a horizontal

                    position to the vehicle for which it is issued so as to prevent the plate from

                    swinging and at a height of not less than 5 inches from the ground, measuring

                    from the bottom of such plate, in a place and position to be clearly visible and

                    shall be maintained in a condition to be clearly legible, free from any materials

                    that would obstruct the visibility of the plate. *** Registration stickers issued as

                    evidence of renewed annual registration shall be attached to registration plates as

                    required by the Secretary of State, and be clearly visible at all times.” (Emphasis

                    added.) Id.

¶4          During the traffic stop, Veryzer’s canine partner (a drug detection dog) gave a positive

     alert for the presence of drugs in defendant’s vehicle. Based on the dog’s alert, Veryzer and

     another police trooper searched defendant’s vehicle on the side of the road. Due to the weather

     being below freezing at 20 degrees Fahrenheit and due to safety issues regarding oncoming

     traffic and low visibility because it was dark outside, the troopers decided to relocate defendant’s

     vehicle to a nearby police station in order to continue the search. At the police station, Veryzer

     located two kilograms of suspected heroin and a kilogram of suspected cocaine wrapped in black

     material, in a void area of defendant’s vehicle located by the engine and below the car’s

     windshield. Preliminary field tests of the suspected drugs tested positive for heroin and cocaine.


                                                      2

       Defendant was arrested and charged with two counts of controlled substance trafficking (720

       ILCS 570/ 401.1(a) (West 2014)), possession with the intent to deliver heroin (id.

       § 401(a)(1)(D)), possession with the intent to deliver cocaine (id. § 401(a)(2)(D)), unlawful

       possession of a controlled substance (heroin) (id. § 402(a)(1)(D)), and unlawful possession of a

       controlled substance (cocaine) (id. § 402(a)(2)(D)).

¶5            Prior to trial, defendant filed a motion to suppress the evidence found during the search of

       his vehicle, arguing the traffic stop was initiated without probable cause or reasonable suspicion

       because the bicycle rack was not a violation of section 3-413(b) of the Vehicle Code because it

       was not attached to the license plate. In support of his motion to suppress, defendant cited People

       v. Gaytan, 2013 IL App (4th) 120217, ¶¶ 44-45, in which the Fourth District Appellate Court

       held that a trailer ball hitch on a vehicle did not violate the version of section 3-413(b) of the

       Vehicle Code in effect at that time, which required license plates to be “free from any materials

       that would obstruct the visibility of the plate, including, but not limited to, glass covers and

       plastic covers” (625 ILCS 5/3-413(b) (West 2010)). The Gaytan court reasoned that the trailer

       ball hitch did not violate section 3-413(b) of the Vehicle Code because the trailer ball hitch was

       not attached to the license plate and the example violations provided by the statute (license plate

       covers) were items attached to the license plate. Id. ¶ 44.

¶ 6	          In this case, on March 26, 2015, the trial court denied defendant’s motion to suppress,

       noting that the Fourth District’s decision in Gaytan was pending an appeal in the Illinois

       Supreme Court; although the appellate court in Gaytan held that the version of section 3-413(b)

       applicable in that case only encompassed obstructions attached to the license plate itself, the

       statute had since been changed to remove the language referencing license plate covers; and the

       bicycle rack in this case was a distinguishable obstruction from the ball hitch obstruction in


                                                         3

     Gaytan because the ball hitch only slightly obstructed the license plate from certain angles,

     whereas the bicycle rack straps in this case went down vertically over the license plate to

     completely cover portions of the license plate.

¶7          On May 25, 2015, the trial court noted that the Illinois Supreme Court had issued its

     ruling in Gaytan (People v. Gaytan, 2015 IL 116223) and asked whether defendant’s attorney

     needed additional time to review the Gaytan decision to decide whether the decision impacted

     defendant’s earlier motion to suppress. The defendant’s attorney noted that although the Illinois

     Supreme Court indicated the applicable version of section 3-413(b) could be read as only

     encompassing obstructions physically attached to the license plate, the Illinois Supreme Court

     also noted section 3-413(b) was ambiguous so that the officers in that case had an objectively

     reasonable belief that the trailer hitch violated section 3-413(b). The defendant’s attorney

     indicated that Gaytan, therefore, was not supportive of defendant’s motion to suppress.

¶8          On June 4, 2015, defendant’s jury trial began. Veryzer testified that he executed a traffic

     stop of defendant’s vehicle on November 14, 2014, after he observed that defendant’s rear

     license plate was obstructed and that only two digits of the license plate could be read.

     Photographs entered into evidence showed that defendant’s license plate was obstructed by the

     straps of an empty bicycle rack. A video of the traffic stop entered into evidence showed that

     straps of the bicycle rack remained secured over the license plate, did not move as the car

     traveled on the highway, and obscured at least two digits of the license plate from every angle.

¶9          Upon stopping defendant’s vehicle, Veryzer obtained defendant’s passport because

     defendant did not have his driver’s license with him. Veryzer also obtained a rental agreement

     for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement

     indicated that the vehicle was due to be returned to Los Angeles two days later, on November 16,


                                                       4

       2014. Veryzer asked defendant to sit in the front passenger seat of his squad car so that Veryzer

       could speak with defendant and determine if defendant was authorized to drive the vehicle. At

       the same time, Veryzer checked for defendant’s driver’s license information via his

       telecommunications system. Veryzer received information that defendant had a valid driver’s

       license. Defendant indicated he was coming from Colorado and the vehicle had been rented by

       his friend, Daniel Melendez, in Los Angeles, California. Defendant also indicated that he had

       flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant

       was unable to specify which day he had flown into Los Angeles and was not sure if he was going

       to return the rental vehicle to California. Defendant told Veryzer that there was no bicycle on the

       bicycle rack because he had sold it in Colorado. Trooper Jarrod Johnson arrived on scene and

       continued to fill out a warning ticket for defendant while Veryzer walked his canine partner

       around defendant’s vehicle.

¶ 10          Veryzer testified regarding the procedure for walking the canine around a vehicle, which

       Veryzer had performed on defendant’s vehicle. Veryzer indicated that he attaches a six-foot lead

       to one of the canine’s two collars and brings the canine to the front of the vehicle (within three

       feet of the vehicle) and places the canine in the sit position. Veryzer would then give the canine

       the command to “seek, find dope,” which is the canine’s trained command to look for odors of

       narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and

       cannabis. Veryzer would then walk the canine around the vehicle twice counterclockwise,

       returning to the front the vehicle. Veryzer testified that on the second rotation of walking his

       canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk

       area of defendant’s vehicle. Veryzer described the canine alerting to having found narcotics as

       when the canine has “slowed his process, snapped his head and body back to the left, and began


                                                       5

       taking short, quick breaths.” After alerting, the canine would then sit as a final response because

       he is trained to sit when he positively recognizes one of the five odors that he is trained in.

¶ 11          After his canine positively alerted to the presence of drugs in defendant’s vehicle,

       Veryzer then informed defendant that the canine had alerted on his vehicle and a probable cause

       search would be conducted. For approximately 20 minutes, Veryzer and Johnson searched

       defendant’s vehicle. Veryzer testified that he and Trooper Johnson conducted a cursory search of

       defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs

       have been found during other vehicle searches in the past, including searching inside the bags

       and luggage that were in the trunk of defendant’s vehicle, the interior, under the seats, under the

       dashboard, and inside the doors by Veryzer sticking a wedge into the doors to be able to see into

       the doors.

¶ 12          The troopers then decided to relocate the search to a location where there would be more

       light to better see into various areas of the vehicle and where it would be safer and warmer

       because they could not see due to the darkness. Veryzer also indicated that it was dangerous on

       the side of the road and the temperature was about 20 degrees outside. They relocated

       defendant’s vehicle to the Geneseo Police Department and, after searching the vehicle for 10 or

       15 minutes, they found the drugs under the hood in the engine compartment in an area covered

       by a black piece of metal or plastic.

¶ 13          During the search of the vehicle, receipts for fast food, gas, and a hotel room were found.

       The rental agreement and receipts showed that the vehicle was rented on November 9, 2014, at

       7:59 p.m. at the Los Angeles airport and stops were made in Los Angeles, at 6:32 a.m. on

       November 12, 2014; in Las Vegas, Nevada, on November 12, 2014; in St. George, Utah, at 6:38

       a.m. on November 13, 2014; overnight at a hotel located in the middle of Colorado (Frisco,


                                                         6

        Colorado); in Frisco, Colorado, at approximately 7 a.m. on November 14, 2014; in the northeast

        part of Colorado (Atwood, Colorado) on November 14, 2014; in Elm Creek, Nebraska, at 2:21

        p.m. on November 14, 2014; in Shelby, Iowa, on November 14, 2014; and in Walcott, Iowa, at

        9:51 p.m. on November 14, 2014. All purchases were made in cash. Defendant was stopped by

        Veryzer, in Illinois, at 10:59 p.m. on November 14, 2014.

¶ 14           Veryzer testified that he had been employed as a certified canine handler with the Illinois

        State Police for four years and had been a trooper with the Illinois State Police for seven years.

        Veryzer had taken a 10-week certification course with his canine partner. He also completed

        over 305 hours of criminal patrol training for the interdiction of terrorists and stolen vehicles and

        the seizure of narcotics, guns, and currency from trafficking of illegal narcotics, guns, and stolen

        vehicles. Veryzer had personally seized approximately 46 large loads of narcotics and was on

        scene with other officers during drug seizures, and he was able to see where different narcotics

        were hidden in the various vehicles.

¶ 15           Veryzer testified, based upon his experience and training, that the cocaine and heroin

        drug trafficking flow originates on the west coast and travels toward the east coast via interstate

        highways, including I-80, and the currency for those drug transactions returns from the east to

        the west. Veryzer testified that it was common for people transporting the narcotics to be in

        third-party rental vehicles to allow the transporters to plausibly deny knowledge of the narcotics

        being in the vehicle. Veryzer also testified that it was common for narcotic transporters to pay

        for expenses using cash and to keep receipts to prove their expenses.

¶ 16	          Veryzer testified that once he began searching defendant’s vehicle at the police station, it

        took 10 to 15 minutes to find the drugs in the empty space located under the hood of the car and

        near the base of the windshield. He explained that finding the drugs took as long as it did


                                                         7

       because, once an “in-depth” search was undertaken, everything was done in “a methodical

       manner.” Once Veryzer had searched defendant’s luggage and other places in or around the

       vehicle where he had discovered drugs in other vehicle searches in the past, Veryzer continued

       searching other locations of the vehicle. He was not able to see the black packages of narcotics in

       the void compartment area under the windshield on the roadside by just shining a flashlight

       because a flat piece of plastic or metal covered it. That piece of metal or plastic could easily be

       removed by removing some clips that covered the compartment, which was part of the vehicle

       from the factory, was not modified, and could be easily accessed. Veryzer had never encountered

       a drug seizure with drugs hidden in that particular location of a vehicle.

¶ 17          At the close of the State’s evidence, defendant made a motion for a directed verdict,

       arguing that the State was unable to prove defendant had knowledge of the drugs in the vehicle.

       The trial court denied the motion, finding that taking all reasonable inferences from the evidence

       in the light most favorable to the State, a rational fact finder could find the defendant guilty.

       Defendant chose not to testify. The jury found defendant guilty on all charged counts. Defendant

       was convicted on two counts of controlled substance trafficking and was sentenced to two

       concurrent 40-year terms of imprisonment. Defendant appealed.

¶ 18                                               ANALYSIS

¶ 19                                              I. Traffic Stop

¶ 20          On appeal, defendant argues the trial court erred in denying his motion to suppress

       because the initial stop of his vehicle was unlawful. The State argues the trial court properly

       denied defendant’s motion to suppress evidence.

¶ 21          Both the fourth amendment of the United States Constitution, applicable to the state

       through the fourteenth amendment (Mapp v. Ohio, 367 U.S. 643 (1961); People v. James, 163


                                                        8

       Ill. 2d 302, 311 (1994)), and article I, section 6, of the Illinois Constitution of 1970 guarantee

       Illinois citizens the right to be free from unreasonable searches and seizures. U.S. Const., amend.

       IV; Ill. Const. 1970, art. I, § 6; Gaytan, 2015 IL 116223, ¶ 20. The constitutional safeguard of

       protecting citizens from unreasonable searches and seizures protects against unreasonable

       warrantless searches. People v. Stout, 106 Ill. 2d 77, 86 (1985). A stop of a vehicle based on a

       suspected violation of the law constitutes a seizure. Gaytan, 2015 IL 116223, ¶ 20. For a traffic

       stop to comport with the requirement of reasonableness under constitutional guarantees, the

       police officer conducting the stop must have at least a reasonable, articulable suspicion that a

       violation of the law has occurred. Id. If reasonable suspicion is lacking, the traffic stop is

       unconstitutional, and any evidence obtained as a result of the stop will generally be inadmissible.

       Id.

¶ 22          When reviewing a trial court’s ruling on a motion to suppress evidence, a two-part test is

       applied so that (1) the trial court’s factual findings are upheld unless they are against the manifest

       weight of the evidence and (2) the trial court’s ultimate legal conclusion as to whether

       suppression is warranted is reviewed de novo. Id. ¶ 18. At a hearing on a motion to suppress

       brought by defendant claiming he was aggrieved by an illegal search and seizure, the burden is

       on that defendant to prove that the search and seizure were unlawful. Stout, 106 Ill. 2d at 88.

¶ 23          Here, the State argues that the traffic stop in this case was lawful based on Veryzer’s

       reasonable suspicion that the empty bicycle rack on defendant’s vehicle was an obstruction to the

       license plate in violation of section 3-413(b) of the Vehicle Code. In construing a statute, the

       primary objective is to give effect to the legislature’s intent, with the presumption that the

       legislature did not intend to create absurd, inconvenient, or unjust results. Gaytan, 2015 IL




                                                         9

       116223, ¶ 23. The best indication of the legislature’s intent is the language of the statute. Id. The

       construction of a statute is a question of law to which we apply de novo review. Id.

¶ 24          The Illinois Supreme Court in Gaytan found that a prior version of section 3-413(b) was

       ambiguous, where the statute required that every registration plate shall be securely fastened to

       the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to

       be clearly legible, free from any materials that would obstruct the visibility of the plate,

       including, but not limited to, glass covers and plastic covers” (625 ILCS 5/3-413(b) (West

       2010)). Gaytan, 2015 IL 116223, ¶¶ 30-31, 39. The Illinois Supreme Court noted the word

       “materials” in section 3-413(b) could have been interpreted either as: (1) prohibiting only items

       attached to the license plate itself because the only examples of the prohibited materials provided

       in the statute were license plate covers (an item attached to the plate itself); or (2) prohibiting any

       obstructing object whatsoever. Id. ¶¶ 30-31. Because the statute was deemed ambiguous in

       Gaytan, the Illinois Supreme Court invoked the rule of lenity and applied the more lenient

       interpretation of section 3-413(b) as prohibiting only those objects that obstructed the visibility

       and the legibility of the license plate that were physically connected or attached to the plate

       itself. Id. ¶ 39. Having concluded that section 3-431(b) was ambiguous, the Illinois Supreme

       Court “encourage[d] the General Assembly to revisit this statute,” noting that it would be helpful

       if the legislature clarified what equipment and accessories attached to a vehicle near the license

       plate were prohibited. Id. ¶ 40. Under the circumstances of that case, wherein the statute was

       found to be ambiguous, the Illinois Supreme Court further concluded that it was objectively

       reasonable for the officers to believe that the trailer hitch violated section 3-413(b) so that the

       vehicle stop was constitutionally valid under the fourth amendment. Id. ¶ 48.




                                                         10 

¶ 25           In 2014, at the time of the traffic stop in this case, section 3-413(b) of the Vehicle Code

       had been revised, so that the prohibition against “registration plate covers” was moved from

       subsection (b) to subsection (g). See 625 ILCS 5/3-413(b), (g) (West 2014). Subsection (b) did

       not reference license plate covers, mandating that every registration plate shall be securely

       fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a

       condition to be clearly legible, free from any materials that would obstruct the visibility of the

       plate.” Id. § 3-413(b). Subsection (g) indicated, “[a] person may not operate any motor vehicle

       that is equipped with registration plate covers.” Id. § 3-413(g). The revised language of section

       3-413(b) removed any ambiguity as to whether prohibited obstructions were only those attached

       to the license plate, making the statute clearly prohibitive of any materials that would obstruct

       the visibility of a license plate.

¶ 26           In this case, the empty bicycle rack was affixed to the vehicle in such a way that at least

       two bars or straps of the bicycle rack were secured in a vertical position over the license plate,

       covering at least two digits of the license plate. The ends of the straps of the bicycle rack

       obstructed the license plate at times when the car was traveling and when the car was at a stop.

       We need not address the question of whether the flapping ends of the straps constituted an

       obstruction under section 3-413(b) because the video and photographs showed that black bars or

       straps of the bicycle rack lay securely over the license plate, obstructing the visibility of the

       license plate, and at least two digits of the license plate were not legible. Therefore, we conclude

       that the manner in which the bicycle rack was attached to the vehicle in this case constituted a

       violation of section 3-413(b) of the Vehicle Code. Thus, the trial court did not err in denying

       defendant’s motion to suppress where Veryzer reasonably believed the condition of defendant’s

       vehicle violated section 3-413(b).


                                                       11 

¶ 27          Defendant additionally argues that his counsel provided ineffective assistance by

       indicating that the Illinois Supreme Court’s decision in Gaytan was not supportive of the

       argument in defendant’s motion to suppress that the traffic stop was unlawful. See Strickland v.

       Washington, 466 U.S. 668, 687 (1984) (providing that claim of ineffective assistance has two

       elements: (1) counsel’s performance fell below an objective standard of reasonableness and

       (2) the deficient performance prejudiced the defendant). As we discussed above, the condition of

       defendant’s vehicle at the time of the traffic stop in this case violated section 3-413(b) of the

       Vehicle Code. The Illinois Supreme Court in Gaytan held that the prior version of section 3­

       413(b) was ambiguous and concluded that it was objectively reasonable for the officers to

       believe that the trailer hitch in that case violated section 3-413(b). See Gaytan, 2015 IL 116223,

       ¶¶ 30-31, 48. Under the Gaytan decision, even if the bicycle rack were not a prohibited

       obstruction, Veryzer’s understanding of the statute would have been objectively reasonable to

       provide the reasonable suspicion necessary to effectuate a lawful stop of defendant’s vehicle.

       Therefore, the decision of defendant’s counsel to refrain from presenting any legal arguments

       based on the Gaytan decision in support of defendant’s motion to suppress was reasonable, and

       his performance did not prejudice defendant.

¶ 28                                    II. Dissipation of Probable Cause

¶ 29          For the first time, on appeal, defendant argues that any probable cause developed during

       the course of the traffic stop dissipated after no illegal drugs were found in the vehicle during the

       roadside search and prior to the vehicle being moved to another location. Defendant concedes

       that he did not preserve this claimed error for appeal. See People v. Enoch, 122 Ill. 2d 176, 186

       (1988) (both an objection at the time of trial and the inclusion of the issue in a posttrial motion

       are required to preserve an issue for review). In light of his forfeiture of this claim for appellate


                                                        12 

        review, defendant requests that we review the purported error for plain error or, in the

        alternative, as a claim of ineffective assistance of counsel.

¶ 30	          Under the plain-error doctrine a reviewing court may consider unpreserved error when

               “(1) a clear or obvious error occurred and the evidence is so closely balanced that the

               error alone threatened to tip the scales of justice against the defendant, regardless of the

               seriousness of the error, or (2) a clear or obvious error occurred and that error is so

               serious that it affected the fairness of the defendant’s trial and challenged the integrity of

               the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski,

               225 Ill. 2d 551, 565 (2007) (citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005)).

        Under both prongs of the plain error doctrine, the burden of persuasion remains with defendant.

        People v. Walker, 232 Ill. 2d 113, 124 (2009). The first step in a plain error analysis is for the

        reviewing court to determine whether any error occurred. Id.

¶ 31           The constitutional safeguards of article I, section 6, of the Illinois Constitution, and the

        fourth amendment to the United States Constitution, prohibit warrantless searches that are

        unreasonable. Stout, 106 Ill. 2d at 86 (citing United States v. Rabinowitz, 339 U.S. 56 (1950);

        People v. Watkins, 19 Ill. 2d 11 (1960)). The critical issue is whether the situation that confronts

        the officer justifies the search. Id. What constitutes probable cause for a search or seizure must

        be determined from the standpoint of the arresting officer, with his skill and knowledge, rather

        than from the standpoint of the average citizen under similar circumstances. Id. Police officers

        often must act upon a quick appraisal of the data before them, and the reasonableness of the

        officers’ conduct must be judged on the basis of their responsibility to prevent crime and to catch

        criminals. Id. at 86-87.




                                                         13 

¶ 32          When an officer has sufficient facts to support probable cause that a vehicle contains

       contraband, the vehicle may be searched without a warrant, including any interior compartments

       of the vehicle that might reasonably contain the contraband. People v. Contreras, 2014 IL App

       (1st) 131889, ¶ 28. Probable cause is a fluid construct that is dependent upon the assessment of

       probabilities in a particular factual context, with the underlying principle being the reasonable

       belief of guilt. Id. ¶ 29. In determining whether probable cause for a search existed, a court

       examines the events leading up to the search or seizure viewed from the standpoint of an

       objectively reasonable law enforcement officer. Id.

¶ 33          In this case, the evidence of the canine alerting to an odor of drugs provided probable

       cause for the troopers to believe that defendant’s vehicle contained drugs and to support a search

       of defendant’s vehicle. After searching all readily accessible areas of the vehicle, the troopers

       decided that continuing to search the vehicle in the dark, alongside the highway, in freezing

       temperatures, was unsafe and impractical. Under the circumstances of this case, the probable

       cause that supported the search did not dissipate when the troopers decided to relocate the

       vehicle so that a complete and thorough search of the vehicle could be executed in safer location

       with better lighting. See id. ¶ 37 (a delay in searching a vehicle until it is relocated to a police

       station does not diminish the original justification for the warrantless search); People v. Parker,

       354 Ill. App. 3d 40, 46 (2004) (the justification for a warrantless search does not diminish upon

       relocation of the vehicle to a police station; holding that officers were not required to obtain a

       search warrant before moving a car a short distance prior to searching the vehicle). The troopers

       had probable cause to search the vehicle without a warrant based on the canine’s alert and

       Veryzer’s knowledge that illegal drugs are typically transported from the west coast to east coast

       on interstate highways, including on I-80 where defendant was stopped, often times in vehicles


                                                       14 

       rented by third parties, such as was the case with defendant. The probable cause that supported

       the warrantless roadside search of defendant’s vehicle continued to exist after the vehicle was

       relocated to a nearby police station to allow the troopers to conduct a thorough search of the

       vehicle.

¶ 34          In arguing that the probable cause in this case had dissipated after the troopers failed to

       find contraband during the roadside search, defendant cites the decision set forth by another

       panel of this court in People v. Pulido, 2017 IL App (3d) 150215. In Pulido, defendant’s vehicle

       was stopped for speeding by an Illinois state trooper. Id. ¶ 14. Two minutes later, another trooper

       arrived on scene with his canine partner, and the canine performed a free-air sniff of defendant’s

       vehicle, which resulted in the canine alerting to the driver’s side door. Id. ¶¶ 15, 17. Both

       troopers searched the inside of the vehicle and the engine compartment, and they found no

       narcotics. Id. ¶ 21. Police relocated the defendant’s vehicle to a nearby police station to further

       search the vehicle because it had begun raining and for safety concerns. Id. ¶¶ 22-23. Tubes

       containing methamphetamines wrapped with black tape were removed from the air filter of the

       defendant’s vehicle. Id. ¶ 26. On appeal in Pulido, a panel of this court held the officers had

       improperly transported defendant’s vehicle to the police station because the probable cause that

       had been developed during the traffic stop had dissipated when no drugs or hidden compartments

       were found during the roadside search of the vehicle. Id. ¶ 43.

¶ 35          We decline to follow Pulido. Based on probable cause, the officers conducted a roadside

       search of readily accessible areas in the vehicle and areas of the vehicle where drugs are typically

       hidden by drug traffickers. Inclement weather, the time of day with respect to the available

       lighting, and safety concerns due to being alongside the highway in the dark led to the decision

       to continue the search of defendant’s vehicle by relocating the vehicle to a better-suited location.


                                                       15 

       We do not believe that probable cause had dissipated just because the drugs were so well hidden

       and certain surrounding conditions made completing a thorough roadside search of the vehicle

       impractical. As discussed above, probable cause continued to exist after the vehicle was

       relocated. Therefore, the trial court did not err by denying defendant’s motion to suppress

       evidence. Absent any error, there could be no plain error requiring a review of defendant’s

       forfeited claim.

¶ 36          Additionally, in light of our holding that probable cause had not dissipated, we cannot say

       that defendant’s counsel was ineffective for failing to assert such an argument in defendant’s

       motion to suppress. People v. Patterson, 217 Ill. 2d 407, 438 (2005) (to establish prejudice from

       counsel’s failure to file a motion to suppress evidence, a defendant must show a reasonable

       probability that the motion would have been granted and the outcome of the trial would have

       been different). Accordingly, we affirm the judgment of the trial court.

¶ 37                                             CONCLUSION

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

¶ 39          Affirmed.

¶ 40          JUSTICE McDADE, dissenting:

¶ 41          The majority has affirmed the conviction of defendant, Steven Varnauskas, on two counts

       of controlled substance trafficking and his two concurrent 40 year sentences. In reaching that

       decision, the majority found that (1) the officer had probable cause to make the initial traffic stop

       because he had a reasonable belief that the statute pursuant to which he acted prohibited what it,

       in fact, did not and (2) the probable cause generated by the canine drug alert was sufficient to

       allow the police to move the car from the highway to the police station to continue the previously




                                                        16 

       abortive search for drugs. For the reasons that follow, I disagree with both findings and

       respectfully dissent.

¶ 42          The facts make clear that this was not a traffic stop effected to protect the safety of other

       drivers on the road; it was a criminal investigation followed by a search without formal fourth

       amendment protections. Officer Veryzer testified that he was specially trained for criminal

       “interdiction” patrols for the purpose of trolling the highway to discover and seize terrorists,

       stolen vehicles, narcotics, guns, and the currency derived from the sale of such contraband. He

       had completed over 305 hours of such training and had personally seized about 46 large loads of

       narcotics and participated in seizures by others. See generally supra ¶¶ 14-16.

¶ 43          Veryzer also explained that he had completed 10 weeks of training with his canine

       partner, he had been a certified canine handler for four years, and he and his dog had a

       procedural routine for a sniff. He did not explain why his dog wears two collars, what the

       purpose of the second collar might be, or why his trained dog did not alert the first time around

       defendant’s vehicle but did on its second rotation.

¶ 44          While sitting in the median of I-80 during his November 14, 2014, patrol, Veryzer

       observed defendant’s vehicle pass by. Although it was 11 p.m. and allegedly too dark on scene to

       find narcotics in the vehicle even at close range, he was able to see that the license plate was

       partially obscured by an empty bicycle rack on the back of the car. He executed a traffic stop for

       this suspected violation of section 3-413(b) of the Vehicle Code (625 ILCS 5/3-413(b) (West

       2014)). Ostensibly because of something about this traffic violation, he walked his dog around

       the car for a drug sniff. The dog alerted the second time around, and Veryzer and a fellow officer

       who had arrived at the scene unsolicited began a search. During this search, characterized by the

       majority as “cursory” (supra ¶ 11), they examined general locations where they had found drugs


                                                       17 

        stashed in earlier searches of other cars. These included the inside of all bags and all luggage in

        the trunk, the interior of the car, under the seats, under the dashboard, and inside the doors—an

        area accessed through Veryzer’s use of a wedge to pry the doors apart and expose their interiors.

        Then, deciding it was too cold, too dark, and too unsafe to continue the search on the side of the

        highway, they moved the car to the Geneseo Police Department and quickly—within 10 to 15

        minutes—discovered two kilograms of heroin and one kilogram of cocaine by the engine below

        the windshield.

¶ 45            Defendant was charged, his motion to suppress evidence was denied, and he was tried

        and convicted by a jury. His two convictions and resultant 40-year sentences are the subjects of

        this direct appeal.

¶ 46            With regard to the first issue, I disagree with the majority’s finding that the trial court

        properly denied the motion to suppress evidence based on the supreme court’s decision in People

        v. Gaytan, 2015 IL 116223. That decision analyzed the version of section 3-413(b) in effect at

        the time Gaytan had been arrested, not the amended version in effect when Varnauskas was

        stopped. The supreme court’s analysis in Gaytan agreed with the analysis of the Fourth District,

        concluding that (1) the statute’s language was ambiguous; (2) applying the rule of lenity, the

        statute, properly interpreted, only prohibited obstruction by materials actually attached to the

        license plate; and (3) the defendant had not actually violated the statute. However, the court also

        found that, because of the ambiguity, the officer’s belief that Gaytan was in violation was

        objectively reasonable and the stop was, therefore, valid.

¶ 47	           In the instant case, the majority has considered the language of the amended statute in

        effect at the time Varnauskas was stopped and has concluded




                                                        18 

                       “[t]he revised language of section 3-413(b) removed any ambiguity

                       as to whether prohibited obstructions were only those attached to

                       the license plate, making the statute clearly prohibitive of any

                       materials that would obstruct the visibility of a license plate.”

                       Supra ¶ 25.

       I agree that the revised language, construed in its totality and in context, does remove the prior

       version’s ambiguity, but I would find the amended statute clearly and unambiguously establishes

       that the only obstructions prohibited by the statute are those caused by materials actually affixed

       to the license plate.

¶ 48           The statute in effect at the time Veryzer stopped Varnauskas on November 14, 2014, was

       the version as amended by Public Act 97-743 (eff. Jan. 1, 2013). It provided, in relevant part, as

       follows. Additions are shown in italics, and deletions are stricken through.

                       “§ 3-413. Display of registration plates, registration stickers, and

                       drive-away permits; registration plate covers.

                               ***

                               (b) Every registration plate shall at all times be securely

                       fastened in a horizontal position to the vehicle for which it is

                       issued so as to prevent the plate from swinging and at a height of

                       not less than 5 inches from the ground, measuring from the bottom

                       of such plate, in a place and position to be clearly visible and shall

                       be maintained in a condition to be clearly legible, free from any

                       materials that would obstruct the visibility of the plate, including,

                       but not limited to, glass covers and plastic covers. A registration


                                                        19 

plate on a motorcycle may be mounted vertically as long as it is

otherwise clearly visible. Registration stickers issued as evidence

of renewed annual registration shall be attached to registration

plates as required by the Secretary of State, and be clearly visible

at all times.

***

(g) A person may not operate any motor vehicle that is equipped

with registration plate covers. A violation of this subsection (g) or

a similar provision of a local ordinance is an offense against laws

and ordinances regulating the movement of traffic.

(h) A person may not sell or offer for sale a registration plate

cover. A violation of this subsection (h) is a business offense.

(i) A person may not advertise for the purpose of promoting the

sale of registration plate covers. A violation of this subsection (i) is

a business offense.

(j) A person may not modify the original manufacturer’s mounting

location of the rear registration plate on any vehicle so as to

conceal the registration or to knowingly cause it to be obstructed

in an effort to hinder a peace officer from obtaining the

registration for the enforcement of a violation of this Code, Section

27.1 of the Toll Highway Act concerning a toll evasion, or any

municipal ordinance. Modifications prohibited by this subsection

(j) include but are not limited to the use of an electronic device. A


                                  20 

                      violation of this subsection (j) is a Class A misdemeanor.” Pub.

                      Act 97-743 (eff. Jan. 1, 2013) (amending 625 ILCS 5/3-413).

       As can be seen, new subsections (g)-(i) replaced and amplified the clause concerning registration

       plate covers, which had been deleted from subsection (b). New subsection (j) prohibited any

       modification of the mounting location of the rear registration plate so as to conceal or obstruct

       the view of the registration plate.

¶ 49          There are three reasons why I believe the modified statute unambiguously addresses only

       the proper placement and display of license plates, registration stickers, and drive-away permits

       and penalizes only their improper placement and display. First is the plain language of the

       section’s title and provisions, which conspicuously makes no mention of obstructions caused by

       attaching foreign objects to the vehicle itself.

¶ 50          My second reason derives from perceived skepticism of the Gaytan court about the reach

       of the statute suggested by the State in that case. The court noted how far-reaching such a

       restriction would be: “even a public bus equipped with a bicycle rack on its front would be

       unlawful under the State’s reading of section 3-413(b) if the rack were to obstruct the license

       plate.” Gaytan, 2015 IL 116223, ¶ 36. The court also said that it was reasonable “to conclude

       that the General Assembly did not intend to put companies who rent trailers out of business and

       did not intend to further burden the physically disabled by making it illegal for them to use

       wheelchair and scooter carriers—particularly when the statute says nothing about these

       matters.” (Emphasis added.) Id. ¶ 38.

¶ 51          The third reason is that, even if the statutory language were ambiguous, the legislative

       history indicates the amendment was proposed because the Illinois State Police approached the

       legislature with some issues regarding registration plate covers. Representative Lisa Dugan


                                                          21 

       stated on the date that the bill passed both houses that “this actually makes multiple Amendments

       to the Vehicle Code with respect to registration plate covers and motorcycles based on some

       issues that the State Police have seen around Illinois to just make things safer and to make [the]

       roads safer.” (Emphasis added.) 97th Ill. Gen. Assem., House Proceedings, May 1, 2012, at 14

       (statements of Representative Dugan).

¶ 52          For these reasons I would find (1) that the amended version of section 3-413 in effect at

       the time Veryzer stopped Varnauskas did not prohibit or criminalize the placement of the bicycle

       rack, (2) that Varnauskas was not in actual violation of the statute under which he was charged,

       and (3) that it was not objectively reasonable for Officer Veryzer to believe that the empty

       bicycle rack on the back of the vehicle was a violation of that statute. I would find the stop was

       without probable cause and therefore unjustified and improper and that the motion to suppress

       should have been granted.

¶ 53          Even though, based on my analysis of the first issue, there is no need to reach the second,

       I feel compelled to briefly address the majority’s expressed refusal (supra ¶ 35) to follow this

       court’s earlier decision in People v. Pulido, 2017 IL App (3d) 150215. In the instant case, when

       the decision was made to move defendant’s vehicle to the Geneseo Police Department, the

       trooper had obviously completed any traffic mission he claimed to have had. Even if it had not

       been at the beginning, this was now nothing more than a drug investigation. If the officer

       believed he had probable cause for a search, he needed to get a warrant. Defendant had that right

       under the fourth amendment to the United States Constitution. Whatever urgency or exigency

       existed for a warrantless search on the side of the road dissipated once the vehicle and defendant

       were removed to the safety and less pressing conditions of the police station. For all of the




                                                      22 

reasons set out in its analysis, I believe Pulido to have been properly decided, and I dissent from

the majority’s contrary holding.




                                                23 

