                                  Illinois Official Reports

                                            Appellate Court



                             People v. Litwhiler, 2014 IL App (3d) 120431




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KARL R. LITWHILER, Defendant-Appellant.


District & No.               Third District
                             Docket No. 3-12-0431


Rule 23 Order filed          May 8, 2014
Motion to publish
allowed                      June 9, 2014
Opinion filed                June 9, 2014


Held                         The trial court properly denied defendant’s motion to suppress the
(Note: This syllabus         psilocybin mushrooms discovered in a warrantless search of
constitutes no part of the   defendant’s vehicle after he was stopped for speeding and a drug dog
opinion of the court but     alerted while walking around the vehicle, notwithstanding defendant’s
has been prepared by the     contention that the State failed to establish the reliability of the dog’s
Reporter of Decisions        alert, since the arresting officer testified that he and his dog completed
for the convenience of       a training program on narcotics detection, he was certified as a drug
the reader.)                 dog handler and his dog was certified for narcotic and apprehension
                             work and recertified twice a year, the records showed that narcotics
                             were found 66% of the time the dog alerted, and based on the record,
                             there was sufficient evidence of the dog’s reliability.



Decision Under               Appeal from the Circuit Court of Henry County, No. 10-CF-441; the
Review                       Hon. Ted J. Hamer, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Santiago A. Durango (argued), of State Appellate Defender’s Office,
     Appeal                   of Ottawa, for appellant.

                              Terence M. Patton, State’s Attorney, of Cambridge (Laura E.
                              DeMichael (argued), of State’s Attorneys Appellate Prosecutor’s
                              Office, of counsel), for the People.



     Panel                    JUSTICE SCHMIDT delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Lytton and Justice Carter concurred in the judgment
                              and opinion.

                                                OPINION

¶1         The State charged and convicted defendant, Karl Litwhiler, of controlled substance
       trafficking (720 ILCS 570/401.1 (West 2010)), unlawful possession with intent to deliver a
       controlled substance (720 ILCS 570/401(a)(11) (West 2010)), and unlawful possession of a
       controlled substance (720 ILCS 570/402(a)(11) (West 2010)). The circuit court of Henry
       County sentenced defendant to 12 years’ incarceration. Defendant appeals his convictions,
       claiming the trial court erred in denying his motion to suppress the evidence, as the State failed
       to provide proper indicia of reliability regarding a drug dog’s alert.

¶2                                            BACKGROUND
¶3         Defendant’s conviction stems from a traffic stop during which a police officer found him in
       possession of 27.46 pounds of psilocybin mushrooms, a controlled substance. The stop
       occurred on December 11, 2010, on Interstate 80.
¶4         At defendant’s preliminary hearing, Sergeant Floyd Blanks of the Illinois State Police
       testified that he was performing stationary radar patrol on Interstate 80 when he observed a
       white sport utility vehicle (SUV) traveling toward his location at a velocity that appeared to
       exceed the 65-mile-per-hour speed limit. He activated his radar, which showed the vehicle
       traveling at 72 miles per hour, so he effectuated a traffic stop.
¶5         Blanks noted defendant was driving the vehicle, which was a rental. Defendant’s hands
       began to shake and defendant showed signs of nervousness. Dressed in a suit and tie, defendant
       explained to Blanks that he was traveling across the country. Blanks observed a large Disney
       princess box in the cargo area of the SUV.
¶6         Blanks stated that minutes later, Trooper Andrew Fratzke arrived with his canine, Viper,
       and conducted a free-air sniff of the outside of the SUV. Viper alerted; the officers searched the
       SUV, finding almost 30 pounds of psilocybin mushrooms inside the Disney princess box. The
       defendant subsequently stated that he agreed to transport 28 pounds of psilocybin mushrooms
       for $2,500 and also explained that he had a cannabis cigarette in his shoe.
¶7         Defendant filed a motion to suppress the evidence obtained at the search, and the matter
       proceeded to a hearing on defendant’s motion. At the hearing, defendant testified that he was


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       traveling from Portland, Oregon, to New York when he was stopped. He claimed to be
       traveling at 64 miles per hour at the time of the stop. Knowing he was transporting illegal
       narcotics, he set his cruise at 64 miles per hour so he would not be stopped for speeding. He
       was traveling downhill when he spotted Sergeant Blanks’ squad car parked in the median. He
       checked the speedometer and did not notice any fluctuation in his speed. He neither touched
       his brakes nor altered his speed.
¶8         Trooper Fratzke testified that he has been a canine handler for 11 to 12 years. He explained
       that when a dog is paired with a handler, the two attend a 10-week training session in which the
       dog is taught apprehension, tracking, and the detection and recognition of different scents and
       odors of contraband. Viper was trained to identify the odor of marijuana, cocaine, crack
       cocaine, methamphetamines, and heroin. At the end of the training period, Viper was certified
       to engage in narcotics and apprehension work. Fratzke was certified as Viper’s handler. When
       asked if he and Viper held “some sort of certification,” Fratzke responded, “Yes, we are. We
       were both–we were both certified. I was certified as a handler, and two times a year Viper was
       certified as a K-9 to do narcotic and apprehension work.”
¶9         Fratzke noted Viper’s alert method is to scratch the area from which the detected odor
       emanates, which is an aggressive alert as opposed to a passive alert. Fratzke and Viper
       conducted two passes around the vehicle. On the first pass, he noticed a change in Viper’s
       breathing and that Viper squared to the vehicle. Fratzke noted that as he was “walking towards
       the passenger side of the vehicle, he scratched, giving me a positive K-9 alert.”
¶ 10       Fratzke stated that he reviewed the video of the stop, which showed that Viper “did scratch
       on his first pass.” Fratzke stated that on the second pass “as he came to the rear of the vehicle
       again, he sniffed, was sniffing near the rear hatch, squaring his body up to it. At this point he
       wasn’t wanting to leave the rear hatch, staying right there, and then–you know in kind of a
       frustration type deal for him. You know, he’s in the odor, he’s not wanting to leave the vehicle,
       and I’m still walking past him. He started barking at me at this point.”
¶ 11       Fratzke testified that as Viper got older, his alert changed to more of a passive alert where
       he would square up to the odor and stay in the area. Due to deterioration of his spine and rear
       legs, he would not always scratch. Instead, he would bark and just keep looking at the same
       spot. Fratzke stated that his “main focus” was always to observe Viper’s breathing and look for
       changes in breathing and body posture. Viper passed away in April of 2011, approximately
       four months after this stop.
¶ 12       Fratzke claimed that Viper’s reliability stayed consistent as he got older, possibly
       becoming more reliable with age. He was able to follow Viper’s keys when an odor was
       detected through the many years the two worked together. Fratzke did not believe Viper’s
       ability changed, only that Fratzke became more aware of Viper’s keys.
¶ 13       Fratzke doubted whether Viper could have alerted on the marijuana in defendant’s sock.
       The defendant sat in Blanks’ squad car during the sniff and, given Viper’s training in
       apprehension, Fratzke would not have placed the dog close enough to defendant to alert on the
       marijuana on defendant’s person. After Viper alerted on the vehicle, the officers conducted a
       search and found the contraband.
¶ 14       Blanks testified that at the time of the stop, his radar unit was properly calibrated, had been
       tested, and was operating accurately. No other vehicles were in the vicinity of the SUV. The
       radar indicated that the SUV was traveling 72 miles per hour. The posted speed limit was 65
       miles per hour.

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¶ 15        The trial court continued the hearing after Blanks’ testimony for discovery purposes. When
       it resumed, Fratzke again testified, noting that his training with Viper took place at the Illinois
       State Police academy. He reiterated that Viper alerted to the “bumper center tailgate area ***
       in the region of the rear of the vehicle.” He noted canines are not perfect. Normally, he would
       not ask a driver for consent to search a vehicle when Viper failed to alert to the vehicle, as he
       had complete faith in Viper. Viper was not trained to detect the odor of psilocybin mushrooms.
¶ 16        Blanks also testified when the hearing continued, stating that the video recording
       accurately depicted the stop and search. The trial court admitted the recording into evidence
       without objection. The defendant provided exhibits consisting of documents received from the
       State regarding Viper’s training and performance. These documents indicate that in
       approximately one-third of Viper’s field alerts, law enforcement found no contraband during
       searches.
¶ 17        Following argument, the trial court found that defendant had properly shifted the burden to
       the State during the suppression hearing to justify the stop and warrantless search. The State
       argued that the evidence indicated the stop was justified due to defendant’s speeding, that
       Viper was well trained and certified as a narcotics dog, and that the alert is very clear on the
       video. Therefore, the State claimed it satisfied its burden of proving a justification for the
       search and seizure.
¶ 18        Ultimately, the trial court found that the stop was justified as defendant had been speeding.
       The court continued, finding that Viper went through the 10-week training course, resulting in
       his certification to detect odors of narcotics. The court found Viper, at the time of the stop, was
       a reliable canine for the purposes of detecting the odor of the illegal narcotics that he had been
       trained to detect. The court concluded that Viper’s alert provided probable cause to search the
       SUV and, therefore, denied the motion to suppress.
¶ 19        The matter proceeded to a stipulated bench trial. Defendant did not stipulate to his guilt or
       the sufficiency of the evidence, only that if called to, the State could produce witnesses who
       would testify consistent with the testimony described above. The State added facts indicating
       the contraband had been tested at the Illinois State Police forensic science laboratory in
       Morton, Illinois. The tests revealed that the contraband was found to be psilocybin, a
       controlled substance, weighing 13,620 grams or 27.46 pounds.
            Defendant renewed his objection to the evidence on the same grounds as his motion to
       suppress. The trial court then found defendant guilty of all charges. At sentencing, the charges
       were merged, concluding with the trial court sentencing defendant to 12 years’ incarceration
       on the most serious charge of controlled substance trafficking. The court imposed fines
       totaling $35,000. The court also allowed defendant to remain free on bond pending appeal.
       Defendant filed his notice of appeal the same day.

¶ 20                                            ANALYSIS
¶ 21       The sole issue raised on appeal is whether the trial court erred in denying defendant’s
       motion to suppress. Defendant argues that he produced sufficient evidence to bring into
       question Viper’s reliability, thereby shifting the burden to the State to produce evidence that
       Viper was, in fact, reliable so that Viper’s alert could provide officers probable cause to search
       his vehicle. This burden, defendant claims, the State failed to meet and, as such, the trial court
       erred in denying his motion to suppress the fruits of the stop.


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¶ 22        In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-part
       standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). “Under this standard, a
       trial court’s findings of historical fact should be reviewed only for clear error, and a reviewing
       court must give due weight to any inferences drawn from those facts by the fact finder.” Id. “In
       other words, we give great deference to the trial court’s factual findings, and we will reverse
       those findings only if they are against the manifest weight of the evidence.” Id. However, we
       review de novo the trial court’s ultimate legal ruling as to whether suppression was warranted.
       Id.

¶ 23                                         A. Florida v. Harris
¶ 24       The parties agree that the United States Supreme Court recently articulated the test to be
       used to determine “if the ‘alert’ of a drug-detection dog during a traffic stop provides probable
       cause to search a vehicle” in Florida v. Harris, 568 U.S. ___, ___, 133 S. Ct. 1050, 1053
       (2013). The Harris Court specifically rejected the Florida Supreme Court’s requirement that
       “the State must in every case present an exhaustive set of records, including a log of the dog’s
       performance in the field, to establish the dog’s reliability.” Id. at ___, 133 S. Ct. at 1053.
       Instead, the Harris Court preferred a “ ‘flexible, common-sense standard’ of probable cause.”
       Id. at ___, 133 S. Ct. at 1053 (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)).
¶ 25       The Harris Court reiterated long-standing law, which holds that a police officer has
       probable cause to conduct a search when the facts available to him would warrant a person of
       reasonable caution in the belief that contraband or evidence of a crime is present. Id. at ___,
       133 S. Ct. at 1055. This test is not reducible to a precise definition or quantification, and finely
       tuned standards such as proof beyond a reasonable doubt or by a preponderance of the
       evidence have no place in the probable cause decision. Id. at ___, 133 S. Ct. at 1055. “All we
       have required is the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not
       legal technicians, act.’ ” Id. at ___, 133 S. Ct. at 1055 (quoting Gates, 462 U.S. at 238). To
       determine whether the State has met this practical standard, courts consistently look to the
       totality of the circumstances and reject rigid rules, bright-line tests, and mechanistic inquiries
       in favor of a more flexible approach. Id. at ___, 133 S. Ct. at 1055-56.
¶ 26       With this as a backdrop, the Harris Court scolded the Florida Supreme Court for creating a
       “strict evidentiary checklist, whose every item the State must tick off.” Id. at ___, 133 S. Ct. at
       1056.
¶ 27       The Harris Court also discussed the problems inherent in relying on a dog’s field
       performance to determine the dog’s accuracy. Id. at ___, 133 S. Ct. at 1056. The Court noted
       that a dog may properly alert to contraband too well hidden for the officers to ultimately find.
       Or, conversely, the dog may fail to alert where contraband is present. In many cases where the
       dog does not alert, the officers may not search the car so the false negative is never
       documented. Id. at ___, 133 S. Ct. at 1056-57. Field alerts where narcotics are too well hidden
       and the described false negatives led the Court to state that the “better measure of a dog’s
       reliability thus comes away from the field, in controlled testing environments.” Id. at ___, 133
       S. Ct. at 1056-57.
                    “For that reason, evidence of a dog’s satisfactory performance in a certification or
                training program can itself provide sufficient reason to trust his alert. If a bona fide
                organization has certified a dog after testing his reliability in a controlled setting, a
                court can presume (subject to any conflicting evidence offered) that the dog’s alert

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               provides probable cause to search. The same is true, even in the absence of formal
               certification, if the dog has recently and successfully completed a training program that
               evaluated his proficiency in locating drugs. After all, law enforcement units have their
               own strong incentive to use effective training and certification programs, because only
               accurate drug-detection dogs enable officers to locate contraband without incurring
               unnecessary risks or wasting limited time and resources.” Id. at ___, 133 S. Ct. at 1057.
¶ 28       After reciting the various training courses the dog in Harris had been through, the Court
       found that the officer “had good cause to view Aldo as a reliable detector of drugs. And no
       special circumstance here gave [the officer] reason to discount Aldo’s usual dependability or
       distrust his response to [defendant’s] truck.” Id. at ___, 133 S. Ct. at 1059. The Court further
       noted that defendant failed to question specific aspects “of Aldo’s training” at the trial court
       level and, as such, the arguments were forfeited. Id. at ___, 133 S. Ct. at 1058.

¶ 29                                       B. Defendant’s Claims
¶ 30       Initially, we must note that defendant asks us to review the video of the traffic stop and
       conclude that Fratzke “cued” Viper to alert on the vehicle. Defendant failed to make this claim
       below and, as such, it is forfeited. Id. at ___, 133 S. Ct. at 1058-59. During the suppression
       hearing, the court reviewed the video of the traffic stop, yet defendant made no argument
       regarding “cuing.” Moreover, defendant failed to ask Fratzke any questions related to this new
       cuing argument. We find the argument forfeited.
¶ 31       As noted above, defendant claims he shifted the burden at the suppression hearing to the
       State by his testimony that he was not speeding and further by questioning Viper’s reliability.
       While a defendant bears the burden during a motion to suppress of establishing a prima facie
       case that he was doing nothing unusual to justify the intrusion of a warrantless search or
       seizure (People v. Linley, 388 Ill. App. 3d 747, 749 (2009)), if a defendant makes the required
       showing, the burden shifts to the State to present evidence to justify the search and seizure. Id.
¶ 32       The trial court stated below, “Let’s get back to the stop. He testified he wasn’t speeding,
       and that was the initial reason for the stop. *** So that in itself would shift the burden since
       he’s testified to it.” Sergeant Blanks’ testimony disputed defendant’s claim that he was not
       speeding. Blanks testified that he initiated the stop after his radar indicated defendant’s vehicle
       was traveling at 72 miles per hour in a 65-mile-per-hour zone.
¶ 33       Clearly, what weight to ascribe the disputed testimony regarding speeding is within the
       purview of the trial court, which we will not disturb unless it amounts to clear error.
       Luedemann, 222 Ill. 2d at 542. The trial judge stated that he found Trooper Blanks’ testimony
       credible and “that there was probable cause to stop Mr. Litwhiler’s car.”
¶ 34       Defendant argued below, and stresses to this court, that he adduced evidence showing
       Viper was not sufficiently reliable in the area of narcotics detection. As such, defendant claims
       he made a prima facie showing that police were without probable cause to search his vehicle.
       Defendant continues that since the State failed to produce any evidence regarding Viper’s
       results during controlled narcotics detection exercises, the State failed to meet its burden, and
       the trial court erred in denying his motion to suppress. We disagree.
¶ 35       Trooper Fratzke testified that he and Viper completed a 10-week training program at the
       end of which he became a certified handler of Viper, and Viper became certified to “do
       narcotic and apprehension work.” Fratzke stated that Viper’s success rate remained constant


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       throughout the dog’s life and, if anything, increased toward the end of the dog’s career.
       Defense counsel asked Trooper Fratzke whether Viper’s alert method was changed during the
       “training, though, that Viper went through throughout his entire career.” Fratzke stated it had
       not been changed. When discussing the certification process, Fratzke noted that “two times a
       year Viper was certified as a K-9 to do narcotic and apprehension work.”
¶ 36       As noted by the Harris Court, “If a bona fide organization has certified a dog after testing
       his reliability in a controlled setting, a court can presume (subject to any conflicting evidence
       offered) that the dog’s alert provides probable cause to search.” Harris, 568 U.S. at ___, 133 S.
       Ct. at 1057. Our supreme court has noted that we “must review the trial court’s factual
       determination that the police dog *** was well trained and sufficiently reliable that his alert
       gave the police probable cause to search” as any other factual issue and, as such, “the ruling
       will not be disturbed on appeal unless it is manifestly erroneous.” People v. Caballes, 221 Ill.
       2d 282, 289 (2006).
¶ 37       Defendant does not dispute that the Illinois State Police, the entity which certified Viper
       and Fratzke, is a bona fide organization. The certification alone allows the court to “presume”
       (Harris, 568 U.S. at ___, 133 S. Ct. at 1056-57) that the dog was sufficiently reliable and
       protects against any subsequent holding that the trial court’s determination of reliability is
       manifestly erroneous. The State adduced additional evidence, however, from Trooper Fratzke
       regarding Viper’s reliability. Fratzke stated that Viper was certified twice a year, that Viper’s
       reliability remained constant or actually increased as Viper aged, and that his alert method
       never changed despite the “training” he endured “throughout his entire career.”
¶ 38       Defendant acknowledged in his reply brief that Viper’s “training records were provided by
       the Attorney General,” yet counsel focused on only Viper’s field alert records at the
       suppression hearing. These records indicated that 66% of the time Viper alerted, narcotics
       were found. Again, as the Court noted in Harris, the mere fact that narcotics were not found the
       other 33% of the time does not mean that Viper was unreliable, as he could have alerted on
       residual odors or the narcotics could have been so well concealed as to avoid detection during
       a search. Harris, 568 U.S. at ___, 133 S. Ct. at 1056-57.
¶ 39       Defendant claims neither Fratzke’s testimony nor the field alert statistics are sufficient to
       satisfy the State’s burden of proving Viper’s reliability. Defendant suggests only the results of
       controlled tests could possibly have satisfied the State’s burden. We disagree.
¶ 40       Defendant’s approach is the exact type of “strict evidentiary checklist” which the Florida
       Supreme Court created, only to be rejected by the Harris Court. Id. at ___, 133 S. Ct. at 1056.
       We find the record contains sufficient evidence of Viper’s reliability and, as such, the trial
       court did not err in denying defendant’s motion to suppress.

¶ 41                                        CONCLUSION
¶ 42      For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed.

¶ 43      Affirmed.




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