                                  Illinois Official Reports

                                          Appellate Court



                              People v. Ferris, 2014 IL App (4th) 130657



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                      DUSTIN P. FERRIS, Defendant-Appellee.



District & No.               Fourth District
                             Docket No. 4-13-0657


Filed                        April 21, 2014


Held                         Evidence of defendant’s possession of methamphetamine was
(Note: This syllabus         properly suppressed as “the fruit of the poisonous tree,” since the
constitutes no part of the   vehicle in which defendant and two other people were riding was
opinion of the court but     initially properly stopped for speeding, but the stop was unreasonably
has been prepared by the     prolonged and resulted in an illegal search of the vehicle after the
Reporter of Decisions        officer discovered that one passenger was unable to drive due to his
for the convenience of       health and another had a revoked license, another passenger’s purse
the reader.)                 was unreasonably removed from the vehicle and searched by the
                             officer in his squad car, and the vehicle was improperly subjected to an
                             inventory search, towed, impounded, placed on hold, subjected to a
                             walk-around by a drug-sniffing dog, and finally searched pursuant to a
                             warrant.




Decision Under               Appeal from the Circuit Court of Moultrie County, No. 13-CF-18; the
                             Hon. Dan L. Flannell, Judge, presiding.
Review




Judgment                     Affirmed.
     Counsel on                Jeremy Richey, State’s Attorney, of Sullivan (Patrick Delfino, David
     Appeal                    J. Robinson, and David E. Mannchen (argued), all of State’s Attorneys
                               Appellate Prosecutor’s Office, of counsel), for the People.

                               Jude M. Redwood (argued), of Redwood Law Office, of St. Joseph,
                               for appellee.




     Panel                     PRESIDING JUSTICE APPLETON delivered the judgment of the
                               court, with opinion.
                               Justice Knecht concurred in the judgment and opinion.
                               Justice Pope dissented, with opinion.




                                                OPINION

¶1         The State charged defendant, Dustin P. Ferris, with unlawful possession of
       methamphetamine (720 ILCS 646/60(b)(5) (West 2012)). He moved to suppress the evidence
       against him. After an evidentiary hearing, the trial court granted his motion. The State filed a
       certificate of impairment and a notice of appeal.
¶2         We defer to the material findings of fact the trial court made in its written decision because
       those findings are not clearly erroneous. See People v. Luedemann, 222 Ill. 2d 530, 542 (2006)
       (describing the dual standard of review applicable to a ruling on a motion for suppression).
       Therefore, we affirm the trial court’s judgment. Indeed, the material facts appear to be
       undisputed. Given the material facts, we conclude, de novo, that suppressing the evidence in
       question was the legally correct decision. See id.

¶3                                          I. BACKGROUND
¶4                            A. The Hearing on the Motion for Suppression
                                               (July 25, 2013)
¶5                                    1. The Testimony of Defendant
¶6         On February 15, 2013, defendant was driving a 2001 Lincoln automobile belonging to
       Mindy Deweese. He had the car keys with her permission. Deweese and Gretchen Biddle were
       his passengers. The purpose of the trip was to give a friend of his a ride from Paris, Illinois, to
       Decatur, Illinois. They arrived in Decatur and dropped off the friend. While in Decatur,
       defendant drove the car on at least one occasion when Deweese was not riding along. Deweese
       knew that defendant’s clothing and other personal belongings, including his book bag, were in
       the trunk of the car. After dropping off the friend, the three of them–defendant, Deweese, and
       Biddle–headed back to Paris that same day.



                                                    -2-
¶7         Initially, defendant was also the driver on the way back, but his eyes became dry and itchy.
       He requested Biddle to take over driving, even though he knew she lacked a valid driver’s
       license. He sat in the front passenger seat as she drove.
¶8         It was about 11:30 p.m., and they were traveling east on Illinois Route 32, when a police
       officer pulled them over a couple of miles from Lovington. The area of the traffic stop was a
       blacktop road, to the right of which was a shoulder 10 or 15 feet wide and then a slightly
       sloping grassy ditch. The police officer claimed Biddle had been speeding.
¶9         Upon learning that Biddle’s driver’s license had been revoked, the police officer arrested
       her for driving with a revoked driver’s license. He requested defendant’s permission to search
       the car. Defendant said no. The police officer also requested Deweese’s permission to search
       the car. She said no.
¶ 10       At the police officer’s request, defendant underwent some field sobriety tests to determine
       if he was fit to drive. The police officer concluded that defendant was unfit to drive, and he
       warned defendant he would arrest him if he tried to do so.
¶ 11       Next, the police officer said he was going to perform an inventory search of the car before
       it was towed. Biddle’s purse was on the front passenger floorboard, and during the inventory
       search, the police officer removed the purse from the car and put it in the squad car, even
       though defendant told him to leave the purse in the car and even though Biddle told him several
       times she wanted her purse left in the car.
¶ 12       After the inventory search, the police officer told defendant and Deweese they would have
       to come to the sheriff’s office and wait for someone to pick them up. Defense counsel asked
       defendant:
                    “Q. You testified you had to go to the Sheriff’s Department. Why did you say you
               had to go there?
                    A. He said we had to go there and wait for our friends to come get us.
                    Q. Is that what you wanted to do?
                    A. No. We wanted to wait at the car for somebody to come get us so we could take
               the car.”
       A tow truck arrived and took away the car. The police took defendant, Deweese, and Biddle to
       the sheriff’s office in Sullivan.
¶ 13       Defendant or Deweese called a friend, Michael Evard, who finally arrived at the sheriff’s
       office around dawn on February 16, 2013. Defendant testified:
                    “A. We went to the tow truck company to see if we could get the car. It wasn’t open
               yet, so we went to a gas station. Somebody stated she knew where the tow truck
               company driver lived. We went there. He wasn’t there. His wife called him and asked
               him about the car, and he said the police officer put a hold on the car and they weren’t
               going to release it to us.
                    Q. So then what did you do?
                    A. So, I went back to Paris.”

¶ 14                            2. The Testimony of Gretchen Biddle
¶ 15      When the police officer arrested Biddle, her purse was on the front floorboard of the
       Lincoln. She never requested the police officer to get her purse. Rather, she told him several


                                                  -3-
       times she wanted her purse left in the Lincoln with defendant.

¶ 16                               3. The Testimony of Michael Evard
¶ 17       Evard was a friend of defendant and Biddle. Defendant telephoned him in Paris at about 1
       a.m. on February 16, 2013, and asked him to come to Sullivan and pick him up at the sheriff’s
       office. Evard brought along another licensed driver. It took some time to round up this extra
       driver and $117.50 for the towing fee, so it was dawn, approximately 6 a.m., when Evard
       arrived in Sullivan.
¶ 18       The Lincoln was in a building at Sullivan’s Auto Body, across the street from the sheriff’s
       office. Evard could see the car through a window of the building. By inquiring at a gas station,
       they found out where the tow truck driver was. They went to him and told him they wanted to
       pick up the car. He replied that was impossible because “there was a hold put on the car” and
       they “could not pick up the vehicle until the hold was off.” Consequently, they returned to
       Paris without the Lincoln.

¶ 19                                  4. The Testimony of Caleb Smith
¶ 20        Caleb Smith was the Moultrie County deputy sheriff who pulled Biddle over. During
       Smith’s testimony, the trial court admitted, without objection by defense counsel, a digital
       video disc (DVD), on which the traffic stop was recorded, as well as some documents Smith
       had prepared, namely, an “MCSO [(Moultrie County Sheriff’s Office)]–Vehicle Tow Record”
       and a search affidavit. For the sake of simplicity, we will combine what Smith said in his
       search affidavit and what he said in his testimony.
¶ 21        At 12:14 a.m. on February 16, 2013, Smith was out in the country, monitoring the speed of
       vehicles going by on Illinois Route 32. A car went by, heading east, and the radar said it was
       traveling 70 miles per hour. The speed limit was 55 miles per hour.
¶ 22        He turned on the emergency lights of his squad car and pulled the car over. It was a 2001
       four-door Lincoln. When the car came to a stop, it was not completely pulled over onto the
       shoulder, although the shoulder was wide enough to accommodate the car. The car straddled
       the fog line. Three-quarters of the car was in the eastbound lane, with the squad car behind. The
       trial court asked Smith:
                    “Q. Is there some reason for safety you just didn’t have them pull off the road?
                    A. No. I did not have them pull off. There is no reason. I was behind it with my
                emergency red and blues.
                    Q. Excuse me. So you were in the complete lane of traffic then, I assume?
                    A. That’s correct.”
¶ 23        The dispatcher informed Smith that Mindy Deweese was the registered owner of the car
       and that her driver’s license was suspended.
¶ 24        Smith walked up to the driver’s side window, and the driver identified herself as Gretchen
       Biddle. She could not produce a driver’s license; she claimed she had left it at home. Smith saw
       she had two passengers, defendant and Deweese. Smith remarked to the three occupants of the
       car that although they all were exposed to the same light, the pupils of the passengers’ eyes
       looked contracted, whereas the pupils of Biddle’s eyes looked normal. He asked the three of
       them if they had consumed any narcotics lately. All three answered no.


                                                   -4-
¶ 25         Smith requested Deweese’s permission to search the car. She denied him permission to do
       so.
¶ 26       The dispatcher informed Smith that Biddle’s driver’s license had been revoked. Smith had
       Biddle get out of the car and perform some field sobriety tests, after which he decided not to
       arrest her for driving under the influence (DUI). He arrested her, however, for driving while
       her driver’s license was revoked. He handcuffed her, put her in the back of the squad car, and
       returned to the Lincoln to speak with the two passengers.
¶ 27       Defendant was the only occupant of the car with a valid driver’s license, but having seen
       his contracted pupils, Smith had reservations about his fitness to drive. Defendant told him he
       had been driving earlier but that he had requested Biddle to take over driving because his eyes
       had been bothering him. Smith administered to defendant a battery of field sobriety tests and
       determined he was unfit to drive. Smith explained this to defendant, who then admitted taking
       a couple of Vicodin pills that morning and smoking cannabis a few hours earlier.
¶ 28       In the DVD, after administering the field sobriety tests to defendant, Smith tells defendant
       that, in his opinion, defendant is under the influence and is unfit to drive. Smith assures
       defendant that because he was not driving at the time of the traffic stop, he is not in any trouble.
       But Smith tells him he may not drive in his present condition. “So, we need to decide what you
       guys are going to do with this car,” Smith tells defendant. “We’re going to have it towed,”
       defendant replies.
¶ 29       According to Smith’s affidavit, he told Deweese and defendant “to call for a ride because
       [he] would need to tow the vehicle since it was in the roadway and [he] had no valid or sober
       driver to drive the vehicle.” While defendant and Deweese unsuccessfully tried to reach
       someone by cellular phone, Smith returned to Biddle in the squad car and read her the Miranda
       warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). Biddle said she understood the
       warnings and that she was willing to talk. In her conversation with Smith in the squad car, she
       surmised that defendant and Deweese were under the influence and that the reason she had
       been enlisted to drive was that she was the only sober person in the car. Smith asked her if she
       thought that defendant and Deweese were on prescription pills, and she answered they
       probably were.
¶ 30       After radioing the dispatcher to send a tow truck, Smith returned to the Lincoln to speak
       again with defendant and Deweese. He told them a “Lovington [police] officer would give
       them a ride to the Moultrie County Sheriff’s Office to the lobby to wait for a ride since the car
       would be towed.” Deweese said she wanted to stay with the car until the tow truck arrived.
       Smith replied “that was fine but they would need to exit the car so [he] could conduct a tow
       inventory of the vehicle.” Deweese “did not think that was right and thought it was pretty much
       like searching the car after she told [him he] couldn’t.” Smith explained to her that the purpose
       of a tow inventory “was to protect her belongings along with the tow company.”
¶ 31       Over Deweese’s protest, Smith performed the tow inventory. In the DVD, he can be seen
       with a flashlight and clipboard, opening car doors and leaning into the car. A couple of times,
       when he was near a bag in the trunk, defendant and Deweese “told [him] it was just clothes[,]
       which [he] quickly flipped through.” While he was searching the front passenger side of the
       car, he “located a purse and asked [defendant and Deweese] if it was [Biddle’s,] and they said
       yes.” Then, without consulting Biddle, he took the purse out of the Lincoln and set it on the
       front passenger seat of the squad car “because it appeared to have a lot of items inside.” It was
       his “own policy and custom” to “always take women’s purses with [him] to the jail because

                                                    -5-
       they ha[d] valuables, money and other items they [might] need with them.” He further
       explained in the suppression hearing: “[T]hat way I’m not leaving the tow company
       responsible for different valuables, their money, credit cards, anything they may need to bond
       out, cell phone, with the vehicle. It’s something I’ve always done.” According to Smith,
       nobody told him to leave the purse in the Lincoln, and by the same token, nobody asked him to
       take it out of the Lincoln, either.
¶ 32       In the form entitled “MCSO–Vehicle Tow Record,” signed by Smith, there is a section for
       describing the car (e.g., the make, model, year, and vehicle identification number) and for
       identifying its operator and owner, another section for describing the “Reason for Towing”
       (the box corresponding to “arrest” is checked), and a third section for the “Inventory.” In this
       third section, Smith describes the “Apparent Condition” of the Lincoln as “Fair,” and next to
       the preprinted words “Inventory of Personal Items in Vehicle,” he notes: “Black cubs bag
       containing clothes, jacket clothing and blankets in trunk.” At the bottom of the form is the
       preprinted language “The above vehicle has been released to me and I found its condition to be
       as indicated above.” Below this language is the signature of John Green, the tow truck driver.
       Green signed the form on February 16, 2013, at 1:41 a.m., one minute after Smith completed
       the inventory search of the car.
¶ 33       After John Green Towing arrived and towed away the Lincoln, Smith took Biddle to the
       Moultrie County Detention Center. They arrived there at 1:51 a.m. He brought Biddle’s purse
       in with him, and he and the correctional staff inventoried its contents pursuant to “Correctional
       policy.” In the purse, they found 40 pseudoephedrine pills, 9 oxycodone pills, 10 coffee filters
       powdered with a white substance that field-tested positively for methamphetamine, 4 Baggies
       of white powder that likewise field-tested positively for methamphetamine, 2 capsules
       containing white powder that field-tested positively for pseudoephedrine, a small mirror, a
       razor blade, and an electric scale.
¶ 34       “[B]ecause it was reasonable to believe that there would be further drugs inside the
       vehicle,” Sergeant Gary Carroll “agreed to place a hold on the vehicle” until they could obtain
       a dog from Coles County. It was around 3 a.m. on February 16, 2013, when someone in the
       sheriff’s office called Green and placed a hold on the car. (Evidently, because Smith had
       “released” the car to Green, as noted in the MCSO–Vehicle Tow Record, the police concluded
       they no longer had a sufficient custodial interest in the car justifying a second inventory search.
       See People ex rel. Burmila v. One 1987 Cadillac, VIN 1G6CD118XH4317299, 206 Ill. App.
       3d 407, 409-10 (1990) (“A private company then towed and stored the vehicle. According to
       the tow report, the vehicle was initially eligible for release. Under these circumstances, we find
       that the police did not have a sufficient custodial interest to justify the search which uncovered
       the cocaine.”).) Deweese’s friends arrived to pick her up and drive the Lincoln home. While
       the police were waiting for the dog to arrive from Coles County, she and her friends kept
       calling about the Lincoln. When they learned that the police were holding the Lincoln until a
       dog walked around it, “they were very unhappy and did not want [the police] to search the
       vehicle.”
¶ 35       The dog arrived around 8:45 a.m. The prosecutor asked Smith:
                   “Q. And did he alert on the car?
                   A. Yes.
                   Q. And what does an alert mean?


                                                    -6-
                    A. It means he smells the odor or presence of meth. In other cases it’s any other
               kind of narcotics he is trained to identify.
                    Q. Based on that information, did you go to seek a search warrant?
                    A. Yes, I did.”
¶ 36       Smith obtained a search warrant, and he and Carroll executed it. This time, Smith searched
       the trunk more thoroughly than he had searched it during the inventory search at the scene of
       the traffic stop. In the back of the trunk, in the driver’s side corner, behind a lot of clothing, he
       found a book bag. Inside the book bag, he found methamphetamine-manufacturing materials
       and 479 grams of methamphetamine solution. This was the evidence that tended to incriminate
       defendant and that he moved to suppress.

¶ 37                                    B. The Trial Court’s Decision
¶ 38       In a written decision, entered on July 26, 2013, the trial court began with two findings: (1)
       the traffic stop was valid because the Lincoln had been speeding, and (2) the arrest of Biddle
       was valid because she had been driving while her driver’s license was revoked.
¶ 39       In the trial court’s view, the case “hinge[d] in large measure” on Smith’s removal of
       Biddle’s purse from the Lincoln after he secured her in the squad car. The court saw no need to
       decide whether Biddle had affirmatively told Smith to leave the purse with defendant and
       Deweese. It was undisputed that Biddle never requested Smith to remove her purse from the
       Lincoln and bring it to the jail. But Smith did so anyway. The court found: “The officer’s
       decision to remove the purse was based upon a combination of department policy and the
       officer’s individual particular course of dealing in such situations.”
¶ 40       The trial court held that Smith’s removal of the purse from the Lincoln was a seizure of the
       purse and that, in the absence of a request to remove the purse from the Lincoln, the seizure
       was unreasonable. Because the seizure of the purse was unreasonable, so was the inventory
       search of the purse at the jail, the court reasoned. The contraband the police discovered during
       the inventory search of the purse led them to put a hold on the Lincoln, walk a dog around it,
       obtain a warrant, and ultimately search the Lincoln pursuant to the warrant. “[T]herefore,” the
       court concluded, “the hold on the vehicle was improper and unjustified and the results of the
       search pursuant to the search warrant [had to] be suppressed.”

¶ 41                                         II. ANALYSIS
¶ 42                              A. Defendant’s Standing To Claim a
                                   Violation of the Fourth Amendment
¶ 43       The threshold question is whether defendant has standing to object to any violation of the
       fourth amendment (U.S. Const., amend. IV) in the circumstances of this case. In this context,
       we are not using the term “standing” in the ordinary sense of having a “personal stake in the
       outcome of the controversy” (Wolinsky v. Kadison, 114 Ill. App. 3d 527, 530 (1983)), but in
       the more specialized sense of the defendant’s personally having a fourth-amendment right that
       the government violated. Fourth-amendment rights are personal, and the government violates a
       defendant’s fourth-amendment rights by invading the defendant’s own legitimate expectation
       of privacy. United States v. Payner, 447 U.S. 727, 731 (1980). If all the government does is
       invade someone else’s legitimate expectation of privacy, the defendant lacks standing to
       invoke the exclusionary rule of fourth-amendment jurisprudence. Id.

                                                     -7-
¶ 44        The State is correct that defendant had no legitimate expectation of privacy as to Biddle’s
       purse (see Rawlings v. Kentucky, 448 U.S. 98, 106 (1980)), but he had a legitimate expectation
       of privacy as to his book bag, which was in the trunk of the car (see People v. Manke, 181 Ill.
       App. 3d 374, 378 (1989)). It is true that the police obtained a warrant to search the car and its
       contents, including the book bag. Even so, obtaining a search warrant does not confer legality
       upon searches and seizures preceding the issuance of the warrant. People v. Scaramuzzo, 352
       Ill. 248, 253 (1933). If the initial search or seizure is unlawful, it “can form [no] basis for the
       issuance of a search warrant[,] and evidence so obtained is inadmissible.” People v. Bowen,
       164 Ill. App. 3d 164, 177 (1987). See also People v. Koniecki, 135 Ill. App. 3d 394, 401 (1985).
¶ 45        To be entitled, then, to the suppression of the evidence the police found in his book bag,
       defendant must show he has standing to object to an initial violation of the fourth amendment
       that, under the principles of Wong Sun v. United States, 371 U.S. 471 (1963), tainted the
       subsequently issued search warrant. If defendant’s own fourth-amendment rights were
       untouched by any previous illegality, he himself would have no basis for challenging the
       search warrant. See 6 Wayne R. LaFave, Search and Seizure § 11.4, at 324-25 (5th ed. 2012)
       (“[I]t must be cautioned that a defendant *** can prevail on a ‘fruit of the poisonous tree’ claim
       only if he has standing regarding the violation which constitutes the poisonous tree.”).
¶ 46        According to the supreme court, standing to claim a violation of the fourth amendment
       depends on whether “[the] defendant has a reasonable expectation of privacy in the area
       searched or in the items seized.” People v. Kidd, 178 Ill. 2d 92, 136 (1997). See also People v.
       Johnson, 114 Ill. 2d 170, 191 (1986) (“The fourth amendment protection against unreasonable
       government search and seizure extends only to individuals who have a reasonable expectation
       of privacy in the place searched or the property seized.”). “The question of whether a defendant
       has established a legitimate expectation of privacy sufficient to permit him to contest a search
       or seizure is a question of law[,] and our review is de novo.” People v. Rosenberg, 213 Ill. 2d
       69, 77 (2004).
¶ 47        Because a traffic stop is a seizure under the fourth amendment (People v. Bunch, 207 Ill. 2d
       7, 13 (2003)), Smith seized Deweese’s car by pulling it over. Defendant does not challenge the
       trial court’s finding that Biddle was speeding and that Smith therefore had probable cause to
       pull her over. See Whren v. United States, 517 U.S. 806, 810 (1996) (“As a general matter, the
       decision to stop an automobile is reasonable where the police have probable cause to believe
       that a traffic violation has occurred.”). Nevertheless, even though the seizure of a car is lawful
       in its inception, the seizure can subsequently violate the fourth amendment by being
       unreasonably prolonged. Illinois v. Caballes, 543 U.S. 405, 407 (2005); People v. Cummings,
       2014 IL 115769, ¶ 18.
¶ 48        Does defendant have standing to argue that the police violated the fourth amendment by
       towing and placing a hold on Deweese’s car, thereby unreasonably prolonging the seizure of
       the car? It depends on whether he had a legitimate expectation of privacy as to the car. See
       Rosenberg, 213 Ill. 2d at 77; Kidd, 178 Ill. 2d at 136; Johnson, 114 Ill. 2d at 191; People v.
       Davis, 93 Ill. App. 3d 217, 226 (1981).
¶ 49        True, defendant had no ownership interest in Deweese’s car. But property ownership is
       merely “a factor to be considered in determining whether an individual has standing to test the
       constitutionality of a search and seizure”; it is “not dispositive.” Kidd, 178 Ill. 2d at 135. The
       supreme court has held:


                                                    -8-
                “Other factors relevant in determining the existence of a reasonable expectation of
                privacy include whether the defendant was legitimately present in the area searched;
                whether the defendant had a possessory interest in the area or the property seized;
                whether the defendant had previously used the area searched or the area seized;
                whether the defendant had the ability to control the property or to exclude others from
                using it; and whether the defendant had a subjective expectation of privacy in the
                property. [Citation.] The question whether a defendant has a reasonable expectation of
                privacy in the area searched or in the items seized must be answered in light of the
                totality of the circumstances of the particular case. [Citation.]” Id. at 135-36.
¶ 50        Defendant was legitimately present in Deweese’s car, and he had a possessory interest in
       his own book bag, clothing, and other personal belongings, which were stored in the trunk.
       Deweese had given him the keys to the car and had allowed him to drive it on his own personal
       errand. He had driven the car in Decatur without her riding along. Deweese could not have
       legally driven the car, considering that she lacked a valid driver’s license, and therefore, during
       the road trip, she was dependent on defendant as the only licensed driver. By his physical
       possession of the keys, he had the ability to exclude others from using the car, and apparently,
       by the same token, he had the ability to allow someone else to use the car, since Deweese did
       not object when he requested Biddle to take over driving. According to defendant’s testimony,
       which the trial court was entitled to believe, he originally was driving, and it was at his own
       request that Biddle took over driving. Defendant was the one who told Smith, “We’re going to
       have [the car] towed.” He further demonstrated a subjective expectation of privacy as to the car
       by refusing Smith permission to search the car.
¶ 51        Because Deweese, a nondriver, had more or less put defendant in charge by handing over
       to him the car keys and because she had allowed him to stuff the trunk of the car with his
       belongings and embark on a rather long trip for his own personal purposes, defendant’s
       expectation of privacy as to the car was reasonable. It is not an expectation that “society”
       would regard as baseless or irrational. Id. at 135. Defendant was not someone whose only
       significance was that he occupied a passenger’s seat. He was not like the passengers in Rakas
       v. Illinois, 439 U.S. 128, 148 (1978), whose only connection to the vehicle was that they were
       “ ‘legitimately on [the] premises.’ ” While holding, in Rakas, that legitimate presence was not
       enough, the Supreme Court disavowed any intention to hold that a passenger had to own the
       vehicle, or even have a possessory interest in the vehicle, to invoke the exclusionary rule and
       challenge a search of the vehicle. Id. at 149 n.17. Ownership and a possessory interest are
       factors, but they are not dispositive. Kidd, 178 Ill. 2d at 135-36. All the Supreme Court
       required was that the passenger have “[a] legitimate expectation of privacy in the areas of the
       car which were searched.” Rakas, 439 U.S. at 149 n.17. Someone who was simply a
       passenger–“a passenger qua passenger”–“normally” would have no “legitimate expectation of
       privacy” in, for example, “the trunk of an automobile.” Id. at 148-49.
¶ 52        We have held, however, that if a passenger had a set of keys to the car and was storing his
       clothes in the car during a long road trip, he had a legitimate expectation of privacy as to the
       car. People v. Sparks, 315 Ill. App. 3d 786, 792 (2000); see also People v. Taylor, 245 Ill. App.
       3d 602, 611 (1993) (“Any of us traveling for an extended period of time in a car, in which we
       stored our belongings, would expect a certain amount of privacy over the duration of that
       trip.”). Granted, the trips in Sparks and Taylor were a lot longer than the trip in the present
       case. The car in Sparks had come from Texas (Sparks, 315 Ill. App. 3d at 792), and the car in


                                                    -9-
       Taylor was on its way back to Colorado (Taylor, 245 Ill. App. 3d at 603), whereas, by
       comparison, it is 81 miles between Paris and Decatur. So, the present case is somewhere
       between Rakas and Sparks. But it is closer to Sparks than to Rakas. The length of the trips in
       Sparks and Taylor explained why the passengers (like defendant) had clothing and luggage in
       the trunks of the vehicles. If the owner hands over to someone the keys to her car and allows
       him to use the trunk as his traveling wardrobe, he has a legitimate expectation of privacy as to
       the car, regardless of whether he has a legally enforceable possessory interest in the car. See
       Rakas, 439 U.S. at 143 (“[A]rcane distinctions developed in property and tort law between
       guests, licensees, invitees, and the like, ought not to control.”). It is true that, under property
       law, Deweese, as the titleholder to the car, had the right to exclude anyone from the car and to
       invite others into the car and allow them to store their luggage in the trunk, right next to the
       items already in the trunk. But the same apparently was true of the owners of the vehicles in
       Sparks and Taylor. For fourth-amendment purposes, the legitimate expectation of privacy is
       broader than property law. Id. at 143, 149 n.17. One can have a legitimate expectation of
       privacy without being entitled to an injunction in civil court.
¶ 53       In sum, defendant was more than a mere passenger; he was more than someone who
       occupied a passenger’s seat. Under the totality of the circumstances, he had a legitimate
       expectation of privacy as to Deweese’s car, an expectation that society would accept as
       reasonable. Therefore, he has standing to object to an unreasonably prolonged seizure of the
       car. See Rosenberg, 213 Ill. 2d at 77; Kidd, 178 Ill. 2d at 136; Johnson, 114 Ill. 2d at 191;
       Davis, 93 Ill. App. 3d at 226. If the towing of the car was an unreasonable prolongation of its
       seizure, defendant was not required to remove his book bag from the trunk before the car was
       towed away, contrary to the dissent’s argument, because he was entitled to expect that the car
       would not be towed in the first place.

¶ 54                  B. Did the Police Unreasonably Prolong the Seizure of the Car?
¶ 55       Having concluded, de novo, that defendant has standing to challenge a seizure of the car
       (see Rosenberg, 213 Ill. 2d at 77), we take up the next question: whether the seizure of the car
       was indeed unreasonably prolonged (see Caballes, 543 U.S. at 407; Cummings, 2014 IL
       115769, ¶ 18).
¶ 56       “Caballes links the reasonableness of a traffic stop’s duration to the reason for the stop.”
       Id. ¶ 19. In the present case, the reason for the traffic stop was, initially, speeding, and soon
       Smith became aware of an additional traffic violation: Biddle’s driving while her driver’s
       license was revoked. Once Smith arrested Biddle and put her in the back of the squad car, his
       business was accomplished, and his seizure of the Lincoln should have ended–unless he had a
       legitimate noninvestigatory reason for prolonging his seizure of the car, that is, unless his
       towing of the car was a reasonable exercise of his community-caretaking function as a police
       officer. See People v. Nash, 409 Ill. App. 3d 342, 347 (2011) (“An impoundment must either
       be supported by probable cause or be consistent with the police role as ‘caretaker’ of the streets
       and completely unrelated to an ongoing criminal investigation.”).
¶ 57       There must be a standard police procedure authorizing the towing of the car in the first
       place. Colorado v. Bertine, 479 U.S. 367, 376 n.7 (1987); People v. Clark, 394 Ill. App. 3d
       344, 349 (2009); United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013)
       (“ ‘[d]iscretion as to impoundment is permissible so long as that discretion is exercised
       according to standard criteria and on the basis of something other than suspicion of evidence of

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       criminal activity’ ” (quoting United States v. Jackson, 682 F.3d 448, 454 (6th Cir. 2012)));
       United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996) (“Among those criteria which must
       be standardized are the circumstances in which a car may be impounded.”); 3 Wayne R.
       LaFave, Search and Seizure § 7.3(c), at 825 (5th ed. 2012). Otherwise, in the unbridled
       exercise of his or her discretion, the police officer could opt for a police tow in order to create
       the occasion for an inventory search–which really would be an investigatory search in the
       guise of an inventory search. See Florida v. Wells, 495 U.S. 1, 4 (1990). Freewheeling
       discretion enables pretense. There must be regulatory safeguards against pretense in the
       fulfillment of community-caretaking functions, such as the impoundment of vehicles. See id.
¶ 58        In the two federal cases the State cites, Bertine, 479 U.S. at 368 n.1, and South Dakota v.
       Opperman, 428 U.S. 364, 365 (1976), municipal ordinances authorized the towing of the
       vehicles. And in the Illinois case the State cites, People v. Hundley, 156 Ill. 2d 135, 136 (1993),
       section 4-203(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, ¶ 4-203(d))
       authorized the towing. In the present case, it is unclear what statute or other standard police
       procedure authorized the towing of the Lincoln, a mechanically sound vehicle that was
       attended by its owner. Section 4-203 of the Illinois Vehicle Code (625 ILCS 5/4-203 (West
       2012)) is entitled “Removal of motor vehicles or other vehicles; Towing or hauling away,” and
       none of its subsections apply to the facts of this case. Section 11-1302 of the Illinois Vehicle
       Code (625 ILCS 5/11-1302 (West 2012)) is entitled “Officers authorized to remove vehicles,”
       and none of its subsections are applicable, either. As a matter of law, taking defendant and
       Deweese to the sheriff’s office to wait for friends did not justify towing the car. See Clark, 394
       Ill. App. 3d at 348 (“[T]he fact that [the] defendant’s car would be left unattended is not a
       sufficient reason for impoundment unless the car would be illegally parked.”).
¶ 59        The “MCSO–Vehicle Tow Record” has a box for “Arrest” in the section entitled “Reason
       for Towing.” But towing the vehicle in every case in which the driver is arrested would be
       unreasonable. Duguay, 93 F.3d at 353 (“[I]mpoundment based solely on an arrestee’s status as
       a driver, owner, or passenger is irrational and inconsistent with ‘caretaking’ functions. Under
       either Detective Waldrup or Detective Adams’ policies, towing is required any time the
       arrestee is carted off to jail, regardless of whether another person could have removed the car
       and readily eliminated any traffic congestion, parking violation, or road hazard.”).
¶ 60        The Supreme Court has stated: “The authority of police to seize and remove from the
       streets vehicles impeding traffic or threatening public safety and convenience is beyond
       challenge.” Opperman, 428 U.S. at 369. Granted, the Lincoln, with the squad car behind it, was
       obstructing traffic on Illinois Route 32 during the traffic stop. The Lincoln was three-quarters
       of the way over the fog line, in the eastbound lane. That just happened to be where Biddle came
       to a halt when Smith pulled her over. Smith was unable to give any reason for failing to have
       her pull completely over onto the shoulder and out of the way of traffic. As one can see by
       watching the DVD of the traffic stop, the shoulder of the highway was of ample width, and the
       car easily could have been driven a few feet over so that it was completely on the shoulder.
       Smith admitted as much in his testimony. As far as we know, it was not illegal to leave a
       vehicle parked on the shoulder of Illinois Route 32, provided that the vehicle was removed
       within 24 hours. See 625 ILCS 5/4-203(c) (West 2012). There would have been no danger of
       defendant’s driving the Lincoln in his impaired state, or of Deweese’s driving it in her
       unlicensed state, because Smith had them both taken to the sheriff’s office to await the arrival
       of an alternative driver.


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¶ 61       If the justification of the police tow was removing an obstruction to traffic, that
       justification seems inconsistent with common sense, considering that Smith could have had
       Biddle pull all the way over in the first place or, if he failed to do that, the car easily could have
       been driven or pushed the rest of the way onto the shoulder. In People v. Buffo, 202 Ill. App. 3d
       240, 242 (1990), the appellate court stated:
                “[W]e believe that the possibility of an arrest resulting from a routine traffic stop is
                sufficiently high that the police should pull a vehicle over to a legal parking space or, at
                least, to a point in the road at which the vehicle will not obstruct traffic. Having failed
                to do so, [the police officer] could not take advantage of that failure to enter [the]
                defendant’s car on the pretext of an exigent circumstance.”
       Thus, by the logic of Buffo, it was Smith’s obligation to have Biddle pull the car all the way
       over onto the shoulder at the initiation of the traffic stop, and because he failed to do so, the
       State cannot reasonably rely on illegal parking as a justification for the community-caretaking
       function, i.e., the police tow. See id. A community-caretaking function has to be reasonable
       under the circumstances, not pretextual.
¶ 62       The State argues that even if illegal parking did not justify the police tow, defendant is in
       no position to complain “[s]ince defendant suggested and agreed to have the car towed.” The
       State appears to rely on a principle analogous to invited error. “Simply stated, a party cannot
       complain of error *** to which that party consented.” In re Detention of Swope, 213 Ill. 2d
       210, 217 (2004). But defendant never consented to a police tow. Neither did Deweese. Here is
       what happened, as shown in the DVD. After administering the field sobriety tests to defendant
       and determining he was unfit to drive, Smith told him, “You need to decide what you’re going
       to do with this car.” Defendant replied, “We’re going to have it towed.” He did not thereby
       invite, suggest, or consent to a police tow. Rather, he said, “We’re going to have it towed.”
       (Evidently, he or Deweese had a cell phone.) A police tow prolonged the seizure; a private tow
       would not have done so.
¶ 63       In sum, the record appears to contain no evidence of a standard police procedure
       authorizing a police tow in these circumstances, as opposed to just moving the vehicle out of
       the lane of traffic. Because the police tow was an exercise of unguided discretion, it
       unreasonably prolonged the seizure of the car after the initial traffic stop. See Caballes, 543
       U.S. at 407; Wells, 495 U.S. at 4; Bertine, 479 U.S. at 375, 376 n.7; People v. Gipson, 203 Ill.
       2d 298, 304 (2003); Clark, 394 Ill. App. 3d at 349; Duguay, 93 F.3d at 351; LaFave, supra
       § 7.3(c), at 825.
¶ 64       Afterward, the police further prolonged the seizure by placing a hold on the car while
       awaiting the arrival of the dog. The State cites no authority holding that if the police find
       contraband in the driver’s purse, they may refuse to relinquish the car to its owner while
       waiting several hours for the arrival of a drug-sniffing dog. Even if the police tow was a
       legitimate caretaking function and therefore a reasonable prolongation of the seizure, it does
       not follow that the subsequent hold on the car, lasting several hours, likewise was reasonable.

¶ 65                                C. Fruit of the Poisonous Tree
¶ 66       Under the doctrine known as “the fruit of the poisonous tree,” a violation of the fourth
       amendment is considered to be, metaphorically, the poisonous tree, and any evidence the
       government obtained by exploiting that violation is subject to suppression as fruit of the
       poisonous tree. People v. Henderson, 2013 IL 114040, ¶ 33. The Supreme Court has explained

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       how to determine whether evidence is fruit of the poisonous tree. The question is “whether,
       granting establishment of the primary illegality, the evidence to which instant objection is
       made has been come at by exploitation of that illegality or instead by means sufficiently
       distinguishable to be purged of the primary taint.” (Internal quotation marks omitted.) Wong
       Sun, 371 U.S. at 488. In other words, to use a different metaphor, “a court must consider
       ‘whether the chain of causation proceeding from the unlawful conduct has become so
       attenuated or has been interrupted by some intervening circumstance so as to remove the
       “taint” imposed upon that evidence by the original illegality.’ ” Henderson, 2013 IL 114040,
       ¶ 33 (quoting United States v. Crews, 445 U.S. 463, 471 (1980)).
¶ 67       If the police had not towed the car and placed a hold on it, they never would have had the
       opportunity to walk a dog around the car, and they never would have acquired probable cause
       to support the issuance of a search warrant. In our de novo review, we find no attenuation or
       interruption of the causal sequence extending from the unreasonable towing of the car to the
       issuance of the tainted search warrant. See United States v. Carter, 573 F.3d 418, 422 (7th Cir.
       2009); United States v. Herrera-Gonzalez, 474 F.3d 1105, 1111 (8th Cir. 2007); United States
       v. Johns, 891 F.2d 243, 244 (9th Cir. 1989). Therefore, we uphold the suppression of the
       evidence. It is fruit plucked from the poisonous tree.

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

¶ 70      Affirmed.

¶ 71       JUSTICE POPE, dissenting.
¶ 72       Because I believe the police tow of Deweese’s vehicle was reasonable under the
       circumstances, I respectfully dissent.
¶ 73       The majority concedes defendant “had no legitimate expectation of privacy as to Biddle’s
       purse.” Supra ¶ 44. However, the majority recasts the issue and focuses instead on whether
       “defendant [had] standing to argue that the police violated the fourth amendment by towing
       and placing a hold on Deweese’s car, thereby unreasonably prolonging the seizure of the car.”
       Supra ¶ 48.
¶ 74       Assuming defendant, a passenger in the vehicle at the time of the stop, had an expectation
       of privacy in his bag, I question whether that expectation continued into the next day, after
       defendant voluntarily left his bag in a vehicle he did not own, knowing the vehicle was going to
       be towed. Regardless, I disagree with the majority’s position it was improper for the police to
       have the vehicle towed.
¶ 75       Police are explicitly empowered to seize and remove from the streets any vehicle that
       impedes traffic or threatens public safety and convenience pursuant to their
       community-caretaking authority. People v. Nash, 409 Ill. App. 3d 342, 348 (2011) (citing
       Opperman, 428 U.S. at 369 (authority of police to remove vehicles impeding traffic or
       threatening public safety is beyond challenge)). The majority concedes Deweese’s vehicle was
       “obstructing traffic on Illinois Route 32” as it was “three-quarters of the way over the fog line,
       in the eastbound lane.” Supra ¶ 60. An illegally parked car is a sufficient reason to order a tow.
       See People v. Mason, 403 Ill. App. 3d 1048, 1054 (2010) (the fact the defendant’s car would be


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       left unattended without the tow is an insufficient reason for impoundment unless the vehicle
       would be parked illegally); Clark, 394 Ill. App. 3d at 348. I would find the tow of the vehicle
       consistent with police community-caretaking functions.
¶ 76        The majority, citing People v. Buffo, finds it was the officer’s “obligation to have Biddle
       pull the car all the way over onto the shoulder.” Supra ¶ 61. However, the language the
       majority relies on in Buffo is dicta and unsupported by case law. See Buffo, 202 Ill. App. 3d at
       242. Moreover, that case did not involve a police tow of the defendant’s vehicle. Instead, in
       Buffo, an officer entered the defendant’s vehicle to move it from its illegally parked location
       and discovered a weapon on the floorboard. Buffo, 202 Ill. App. 3d at 241. The defendant filed
       a motion to suppress and the State unsuccessfully argued the fact the vehicle was illegally
       parked was an exigent circumstance justifying the officer’s entry into the vehicle. Buffo, 202
       Ill. App. 3d at 242.
¶ 77        Here, the issue was not the officer’s entry into the vehicle. Instead, the question is the
       reasonableness of the tow. Defendant failed field sobriety tests and Deweese did not have a
       license. Thus, no one at the scene was able to drive the vehicle. The DVD of the stop shows the
       police exhibited a great deal of patience and afforded defendant and Deweese time to make
       arrangements to have the vehicle moved. However, they were ultimately unable to get it done
       themselves. It was only at that point Smith arranged for the tow. While the majority
       characterizes Officer Smith’s decision to have the vehicle towed “an exercise of unguided
       discretion” (supra ¶ 63), it was certainly preferable to leaving the scene where the vehicle
       posed a hazard to traffic and trusting defendant or Deweese not to drive away.
¶ 78        Based on the totality of the circumstances, I would find the towing of the vehicle was
       reasonable and did not result in an unreasonably prolonged seizure of the vehicle. The hold
       was placed on Deweese’s vehicle only after drugs were discovered in Biddle’s purse.
       Thereafter, the officers applied for and received a search warrant. Accordingly, I would
       reverse the trial court’s grant of defendant’s motion to suppress in this case.




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