                                        2018 IL App (3d) 170525

                               Opinion filed December 6, 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,
                                                     )       Whiteside County, Illinois,
            Plaintiff-Appellant,                     )
                                                     )       Appeal No. 3-17-0525
            v.                                       )       Circuit No. 15-CF-377
                                                     )
     ANTHONY GARZA,                                  )       Honorable
                                                     )       Stanley B. Steines,
            Defendant-Appellee.                      )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justice Holdridge concurred in the judgment and opinion.
           Justice Schmidt concurred in part and dissented in part, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Following the circuit court’s grant of defendant Anthony Garza’s motion to suppress

     evidence, the State filed a certificate of substantial impairment and notice of appeal. The State

     argues the court erred in granting defendant’s motion to suppress. We affirm.

¶2                                         I. BACKGROUND

¶3          The State charged defendant, by information, with one count each of unlawful possession

     of a controlled substance (720 ILCS 570/402(c) (West 2014)), unlawful possession of cannabis

     (720 ILCS 550/4(d) (West 2014)), and possession of drug paraphernalia (720 ILCS 600/3.5(a)
     (West 2014)). Defendant retained private counsel, who filed a motion to suppress defendant’s

     confession. 725 ILCS 5/114-11 (West 2016). The motion alleged that defendant made an

     incriminating statement during a custodial interrogation without being advised of his Miranda

     rights. As a result, defendant sought suppression of the statements that he had made in response

     to the police questioning.

¶4          At the hearing on defendant’s motion, Rock Falls police officer Scott Allspaugh testified

     that on November 20, 2015, at 10:57 a.m., he initiated a traffic stop on a red minivan for driving

     over the posted speed limit. At the time, the weather was clear. The minivan stopped in the East

     Coloma school parking lot. Upon approach, Allspaugh observed five individuals seated in the

     minivan and radioed for a backup officer due to officer’s safety concerns. Approximately five

     minutes after he initiated the stop, Officer Greyson Scott arrived. Before Scott arrived, Allspaugh

     retrieved the driver’s information and began preparing a citation for speeding.

¶5          When Scott arrived, Allspaugh transferred the citation preparation duties to Scott and

     conducted a free-air sniff with his canine unit. Approximately 10 minutes into the stop, the

     canine alerted to the presence of narcotics at the rear of the minivan. Allspaugh radioed for

     additional backup officers and directed the occupants to exit the minivan. Allspaugh and Scott

     searched each of the occupants as they exited the vehicle. The officers did not ask for consent to

     search. Allspaugh said the scope of the search was more than a pat-down and included searching

     inside the occupants’ pockets, waistbands, hats, socks, and shoes. Allspaugh also asked each

     occupant for identification and radioed dispatch to conduct a warrant check. None of the

     occupants possessed contraband on their person or were the subject of an arrest warrant. After

     this search, Allspaugh directed the five occupants to move to an area near his patrol vehicle. Two

     uniformed police officers watched the occupants while Allspaugh and Scott conducted a search


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     of the interior of the minivan. None of the occupants were under arrest at this time, the officers

     did not tell the occupants that they could not leave, none of the occupants were in handcuffs, the

     officers did not separate the occupants, and the officers did not display their weapons.

¶6          During the vehicle search, Allspaugh found a backpack in the trunk area. Inside of the

     backpack, Allspaugh saw what appeared to be illicit substances and pipes used to consume

     narcotics. Postarrest analysis indicated that the backpack contained 13.8 grams of marijuana and

     1.8 grams of cocaine. Following his discovery, Allspaugh removed the suspected contraband

     from the backpack, concluded the search of the minivan, and approached the occupants.

     Allspaugh asked the occupants who owned the backpack. At the time, none of the occupants had

     received Miranda warnings and at least two additional plain clothed police detectives had arrived

     at the scene for a total police presence of six officers. In response to Allspaugh’s question,

     defendant indicated that he owned the backpack. Allspaugh placed defendant in handcuffs and

     then asked defendant “what that white powder substance was.” Defendant said the powder was

     cocaine.

¶7          In the court’s ruling, it initially noted that once “somebody is in custody for Miranda

     purposes that any questioning is prohibited or any statements in response to questioning is

     subject to suppression.” The court then focused its ruling on whether defendant was in custody at

     the time Allspaugh asked about the ownership of the backpack and the white substance. The

     court found that when Allspaugh asked about the ownership of the backpack, six officers were

     on the scene. Four of the officers were in full uniform, and two of the officers were dressed in

     plain clothes with their badges visible. Each officer’s firearm was visible during their encounter

     with defendant. At the time of Allspaugh’s questions, defendant did not know that Allspaugh had

     discovered contraband. The court found an officer told defendant to exit the minivan, the officer


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       conducted a search upon defendant’s exiting the vehicle that was more like a search subsequent

       to arrest than a Terry stop pat-down, and the officer directed defendant to a location away from

       the minivan. The court further found that the restraint imposed upon defendant was comparable

       to a formal arrest. The court concluded that “not only would a reasonable person believe they

       were not free to leave, I also find that there—that the restraint imposed upon the subjects were

       comparable to those associated with a formal arrest.” The court granted defendant’s motion to

       suppress defendant’s answers to the questions “whose bag is this?” and “what is this white

       powder?”

¶8            Following the court’s grant of defendant’s motion, the State filed a certificate of

       substantial impairment and a notice of appeal. Ill. S. Ct. R. 604(a)(1) (eff. July 1, 2017).

¶9                                                II. ANALYSIS

¶ 10          The State argues that the circuit court erred in granting defendant’s motion to suppress

       statements because defendant was not subject to a custodial interrogation that would require the

       issuance of Miranda warnings. We disagree and find the court did not err as defendant was in

       custody and was asked two interrogatory questions without prior Miranda warnings.

¶ 11          At the outset, we note that defendant did not file a responsive brief. However, we elect to

       decide the case in the absence of an appellee’s brief because “the record is simple and the

       claimed errors are such that [we] can easily decide them without the aid of an appellee’s brief.”

       First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976); see

       also People v. Cosby, 231 Ill. 2d 262, 285 (2008) (applying Talandis in the context of a review of

       a motion to suppress evidence).

¶ 12          In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court

       prescribed a set of prophylactic warnings that a police officer must provide to a suspect before


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       conducting a “custodial interrogation.” These warnings are intended to protect a suspect’s fifth

       amendment right against self-incrimination. Michigan v. Tucker, 417 U.S. 433, 444 (1974).

       Miranda was motivated by concerns “that the ‘interrogation environment’ created by the

       interplay of interrogation and custody would ‘subjugate the individual to the will of his

       examiner’ and thereby undermine the privilege against compulsory self-incrimination.” Rhode

       Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384 U.S. at 457-58). The Miranda

       warnings assure that any inculpatory statement made by an individual held in custody is not

       simply the product of “ ‘the compulsion inherent in custodial surroundings.’ ” Yarborough v.

       Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda, 384 U.S. at 458). Miranda further holds

       that where an individual is subject to a custodial interrogation without the benefit of the

       prescribed warnings, the prosecution may not use that individual’s inculpatory or exculpatory

       statements at trial. Miranda, 384 U.S. at 492.

¶ 13          “Custodial interrogation” means “questioning initiated by law enforcement officers after

       a person has been taken into custody or otherwise deprived of his freedom of action in any

       significant way.” Id. at 444. It consists of two elements: (1) whether an individual was subject to

       interrogation and (2) whether the interrogation occurred in a custodial situation. People v.

       Tayborn, 2016 IL App (3d) 130594, ¶¶ 18-19.

¶ 14          First, we find that Allspaugh’s first question—“Whose backpack is this?”—called for an

       incriminating response because Allspaugh knew that the backpack contained illicit substances

       and drug paraphernalia. See id. ¶ 18 (“[a]n interrogation is any practice that police should know

       is reasonably likely to evoke an incriminating response from a suspect”). Therefore, Allspaugh’s

       first question, about the ownership of the backpack, was interrogatory. Second, we find that

       Allspaugh’s question about the white powder substance found inside the backpack also was


                                                        5
       interrogatory. This question also called for an incriminating response—an identification of the

       contraband that Allspaugh believed to be narcotics. Therefore, both of Allspaugh’s questions

       were interrogatory, and we next must determine whether defendant was in custody at the time

       that Allspaugh posed these questions.

¶ 15          In reaching the above conclusion, we note that our opinion is not intended to limit the

       ability of the police to pose sufficiently general questions. With regard to these “[g]eneral, on-

       the-scene” questions, Miranda explains:

                             “Our decision is not intended to hamper the traditional function of police

                      officers in investigating crime. [Citation.] When an individual is in custody on

                      probable cause, the police may, of course, seek out evidence in the field to be used

                      at trial against him. Such investigation may include inquiry of persons not under

                      restraint. General on-the-scene questioning as to facts surrounding a crime or

                      other general questioning of citizens in the fact-finding process is not affected by

                      our holding. It is an act of responsible citizenship for individuals to give whatever

                      information they may have to aid in law enforcement. In such situations the

                      compelling atmosphere inherent in the process of in-custody interrogation is not

                      necessarily present.” (Emphases added.) Miranda, 384 U.S. at 477-78.

       This explanation contemplates that the “[g]eneral on-the-scene questioning” exception will apply

       only when police pose general questions in a noncustodial environment to nonsuspects regarding

       the facts that surround a crime. Id. at 477. By using phrases like “in the field” and “persons not

       under restraint,” the Supreme Court indicates that this exception truly only applies to

       circumstances where the interviewed individual is subject to few, if any, indication of formal

       custody. Id. In these noncustodial circumstances, the citizen-witnesses do not need the


                                                        6
       protections of the Miranda warnings because they are (1) not subject to the compelling pressures

       of police custody, (2) not suspects with a fifth amendment privilege against self-incrimination,

       and (3) providing general information about the “facts surrounding a crime.” Id. This Miranda

       exception is almost expressly directed at scenarios where police officers openly speak with

       unrestrained bystanders who witnessed a crime. This exception does not apply in the instant case

       because defendant was subject to the compelling pressures of police custody (infra ¶ 18),

       Allspaugh had reason to suspect that defendant had committed a narcotics offense, and

       Allspaugh’s question sought an incriminating statement from defendant that established the actus

       reus of the crime, instead of the generic facts surrounding the crime.

¶ 16          The determination of whether defendant was “in custody” for purposes of Miranda

       includes two discrete inquiries: (1) what were the circumstances surrounding the interrogation?

       and (2) given those circumstances, would a reasonable person have felt that he was not at liberty

       to terminate the interrogation and leave? Thompson v. Keohane, 516 U.S. 99, 112 (1995). The

       custody inquiry is an objective test. Alvarado, 541 U.S. at 667. The following factors are

       determinative of whether a suspect was in a custodial setting: the location, time, length, mood,

       and mode of interrogation; the number of police officers present; the presence or absence of the

       family and friends of the accused; any indication of formal arrest; and the age, intelligence, and

       mental makeup of the accused. People v. Havlin, 409 Ill. App. 3d 427, 434 (2011).

¶ 17          The record sets forth the following circumstances surrounding interrogatory questions:

       the instant case began as a traffic stop for a speeding violation. Typically, this type of stop does

       not require Miranda warnings because it is a temporary detention of a “nonthreatening

       character” that does not rise to the level of formal custody. Berkemer v. McCarty, 468 U.S. 420,

       440 (1984). However, the investigation deviated from its traffic stop origin when Allspaugh’s


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       canine alerted to the presence of narcotics in the minivan that defendant was a passenger. At this

       point, the “nonthreatening character” of the stop began to dissipate, and the stop started to evolve

       into a custodial situation. See, e.g., People v. Jordan, 2011 IL App (4th) 100629 (traffic stop for

       a seatbelt violation transformed into a drug search and custodial interrogation where the

       passenger was locked in a squad car, isolated from the driver, and was told police intended to

       send for a drug-detection canine); People v. Rivera, 304 Ill. App. 3d 124, 129 (1999) (purpose of

       on-the-scene investigatory stop ended when a bag of suspected cocaine was removed from

       defendant’s vehicle and the officers’ reasonable suspicion of criminal activity developed into

       probable cause of defendant’s involvement in cocaine delivery). Allspaugh directed the vehicle

       occupants to exit the minivan, asked the occupants for identification, radioed dispatch to conduct

       a warrant check on each of the occupants, and subjected the occupants to a thorough search.

       According to Allspaugh, the search was more than a pat-down and included searching inside the

       occupant’s pockets, waistbands, hats, socks, and shoes. Following the search, Allspaugh directed

       the five occupants to stand in an area near his patrol vehicle. Allspaugh never told the occupants

       that they could or could not leave or that they were under arrest. Two uniformed police officers

       watched the occupants while Allspaugh and Scott searched the minivan. During the vehicle

       search, two additional police officers arrived at the scene for a total police presence of six

       officers. During the vehicle search, Allspaugh discovered a backpack that contained an illicit

       substance and drug paraphernalia. Allspaugh then concluded the vehicle search and asked the

       group of occupants, as a whole, who owned the backpack.

¶ 18          We find that these circumstances would cause a reasonable person to feel that he was not

       at liberty to terminate the interrogation and leave the scene. Thompson, 516 U.S. at 112. At the

       time of Allspaugh’s question, defendant and the other occupants had been subjected to several


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exercises of police authority that evidenced a growing custodial atmosphere. First, Allspaugh

directed all of the vehicle occupants to exit the minivan and then conducted a thorough search of

each occupant. This search was akin to a search incident to arrest as it exceeded the scope of a

search for weapons and appeared to search for evidence of a criminal offense. See People v.

Flowers, 179 Ill. 2d 257, 263 (1997) (purpose of a pat-down search is to protect the officer and

others in the vicinity, not to gather evidence) (citing Minnesota v. Dickerson, 508 U.S. 366, 373

(1993)); cf. Arizona v. Gant, 556 U.S. 332, 338 (2009) (search incident to arrest exception to the

warrant requirement derives from interests in officer safety and evidence preservation that are

implicated in arrest situations). While the validity of this search is not at issue, the search itself

evidenced a growing custodial atmosphere. Second, Allspaugh directed the five occupants to

move away from their minivan and stand near his police vehicle where two uniformed officers

watched over them. Thereafter, the police presence grew to outnumber the occupants as two

additional officers arrived on the scene for a total of six officers and five occupants. Although

none of the officers told the occupants that they were not free to leave, their overwhelming

presence would cause a reasonable person to question their ability to merely walk away without

permission. Moreover, the occupants’ departure from the scene was rendered impractical by the

lack of access to their vehicle. Together, these circumstances established the type of coercive

custodial environment that Miranda is intended to address. A reasonable person, in these

circumstances, would not have felt at liberty to terminate the interrogation and leave. Therefore,

defendant was in custody when Allspaugh asked who owned the backpack. Further, when

Allspaugh asked the second question, about the white powder substance, the custodial

environment was even more apparent as defendant was then in handcuffs. Therefore, we




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       conclude that the circuit court did not err when it suppressed defendant’s custodial and un-

       Mirandized statements.

¶ 19             In reaching our conclusion, we find that Havlin, 409 Ill. App. 3d 427, the case relied on

       by the State, is distinct from the instant case. In Havlin, Officer David Horn stopped the vehicle

       that Allan Havlin was a passenger in for a traffic infraction. Id. at 429. After Horn gave the

       driver of the vehicle a written warning, he asked if the occupants would speak with him. The

       driver of the vehicle replied “yes.” Id. Horn then asked and received consent to search the

       vehicle. Before conducting the vehicle search, Horn “ ‘got each person out’ ” and “ ‘ asked them

       for consent to search their person.’ ” Id. Horn explained that he conducted this search for the

       officer’s safety. Following the search of each occupant, Horn asked the occupants to stand in

       front of his squad car by a second officer. Id. at 430. Horn asked the occupants to move near the

       other officer due to the officer’s safety concerns. Horn denied using any show of force or

       indication of arrest. Horn said that if the occupants had asked to leave, he would have allowed

       them to leave and they were not detained at this point. During the vehicle search, Horn found a

       glass pipe, drug paraphernalia, and a bag of pills. After Horn completed the search, he

       approached the three occupants and asked to whom the items belonged. Defendant said the pills

       were Valium and they belonged to him. Id. The circuit court suppressed defendant’s statement,

       finding defendant was subject to a custodial interrogation. Id. at 432. On appeal, this court found

       the circuit court’s ruling to be erroneous because the circumstances indicated that defendant was

       not in custody at the time of Horn’s question. Id. at 435. In support of our ruling, we noted that

       defendant was not handcuffed or placed in a locked squad car, Horn had not told defendant that

       he was under arrest, and Horn had not separated the occupants before he posed the question. Id.

       at 434.


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¶ 20          The instant case differs from Havlin in two major respects. First, there is no express

       indication that Allspaugh’s initial pat-down was motivated by the officer’s safety concern.

       Unlike Horn, Allspaugh did not testify as to his motivation for the search of each occupant as

       they exited the vehicle. The record indicates that, based on the depth of the search, Allspaugh

       sought evidence of illicit drugs and was not simply conducting a patdown for officer’s safety.

       See Flowers, 179 Ill. 2d at 263. As a result, Allspaugh’s search resembled a search incident to

       arrest and carried strong implications of police custody. Supra ¶ 18. Second, the police presence

       in the instant case was far greater than that in Havlin. Here, the number of officers at the scene

       exceeded the number of occupants. Cf. Havlin, 409 Ill. App. 3d at 434 (two officers were present

       at the scene). The imposing presence of six officers for five occupants created a greater

       environment of police custody. Thus, in contrast to Havlin, the facts of the instant case

       established that defendant was subject to a custodial interrogation without Miranda warnings,

       and the court did not err in granting defendant’s motion to suppress.

¶ 21                                          III. CONCLUSION

¶ 22          The judgment of the circuit court of Whiteside County is affirmed.

¶ 23          Affirmed.

¶ 24          JUSTICE SCHMIDT, concurring in part and dissenting in part:

¶ 25          I agree with the majority that the trial court correctly suppressed defendant’s response to

       the officer’s second question: “What is this white powder?” I dissent with respect to the

       majority’s ruling regarding the question: “Whose bag is this?” I would reverse the trial court on

       that question and answer.

¶ 26          At the time of the officer’s first question, defendant was not in custody for Miranda

       purposes. The mere fact that an accused is not free to leave during a traffic stop or an


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       investigation does not, ipso facto, render defendant in custody for Miranda purposes. See

       Berkemer v. McCarty, 468 U.S. 420, 439-440 (1984). While I agree that defendant was seized

       for fourth amendment purposes when the vehicle was stopped and police conducted their

       investigation, the general question as to ownership posed to the group did not constitute

       interrogation. See, e.g., People v. Laspisa, 243 Ill. App. 3d 777, 783 (1993); People v. Havlin,

       409 Ill. App. 3d 427, 435 (2011).

¶ 27          A general question posed to a group of people does not create “the compulsion inherent

       in custodial surroundings.” (Internal quotation marks omitted.) Yarborough v. Alvarado, 541

       U.S. 652, 661 (2004).




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