                         No. 3--02--0569
_________________________________________________________________
Filed April 19, 2007.
                              IN THE

                       APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 2007

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 9th Judicial Circuit,
                                ) McDonough County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 01--CM--285
                                )
RUSSELL E. ANDREWS,             ) Honorable
                                ) Richard H. Gambrell,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

   PRESIDING JUSTICE LYTTON delivered the OPINION of the court:
_________________________________________________________________


     The defendant, Russell E. Andrews, was charged with unlawful

possession of cannabis (720 ILCS 550--4(b) (West 2000)).                 His

motion to suppress the evidence was denied. Following a stipulated

bench trial, the court found him guilty and sentenced him to, among

other things, one year of conditional discharge and 60 days in the

county jail.     His motion for a new trial was also denied.             On

appeal, the defendant argues that the trial court erred by denying

his motion to suppress.

     On September, 27, 2006, the Illinois Supreme Court entered a

supervisory    order   instructing   us   to   vacate   our   judgment   and

reconsider this case in light of Illinois v. Caballes, 543 U.S. 405
(2005), and People v. Caballes, 221 Ill. 2d 282 (2006).                          We now

reverse the defendant’s conviction.

                                    BACKGROUND

     On April 28, 2001, the defendant was the only passenger in his

son's pickup truck in Macomb.                  His son was driving.              At the

suppression hearing, Officer Jason York testified that he stopped

the vehicle for a traffic violation.              Although he did not remember

the specific traffic violation, he stated that it could have been

a vehicle tag violation.            York said that as he approached the

vehicle, he recognized the defendant and the defendant's son.

     York asked the driver for his driver's license, which the

driver gave to him.        York did not recall whether he also requested

identification      from    the    defendant.         The   defendant,      however,

testified   that    York    requested      identification         from    him.      The

defendant    said    that    he     gave       York   a   valid    Illinois       state

identification card.

     York then returned to the squad car and ran background checks

on the defendant and his son.              The officer stated that he would

have run a background check on the defendant regardless of whether

he   had   the   defendant's        identification        because    he    knew     the

defendant's name.     The background check on the defendant showed an

active body attachment.           York arrested the defendant based on the

body attachment and conducted a search of the defendant's person

incident to that arrest. During the search, York found cannabis on


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the defendant's person.   York then also arrested the defendant for

possession of cannabis.

     At the conclusion of the suppression hearing, the trial judge

found that York had asked the defendant for his identification.

The trial judge stated that, regardless of whether York obtained

the defendant's identification, it was inevitable that York would

have run a background check on the defendant because York knew the

defendant's name.    The court, therefore, denied the motion to

suppress.

     Following the trial, the defendant was found guilty and was

sentenced as indicated above.   Defendant filed a motion for a new

trial, arguing that the court erred by denying his motion to

suppress. The court denied the motion, and the defendant appealed.

                              ANALYSIS

     The ruling of a trial court on a motion to suppress frequently

presents mixed questions of fact and law.       People v. Simac, 321

Ill. App. 3d 1001 (2001).   The trial court's findings of fact will

not be disturbed unless they are manifestly erroneous.     Simac, 321

Ill. App. 3d 1001.   Concerning questions of law, the ruling of the

trial court is subject to de novo review.     Simac, 321 Ill. App. 3d

1001.

     Under the fourth and fourteenth amendments to the Constitution

of the United States, a person has a right to be secure against

unreasonable searches and seizures.      U.S. Const., amend. IV, XIV.


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In Delaware v. Prouse, 440 U.S. 648 (1979), the United States

Supreme Court stated that a traffic stop is a seizure which is

subject to the fourth amendment's reasonableness standards.                   The

temporary detention of individuals, passengers and drivers alike,

during a vehicle stop constitutes a seizure of persons within the

meaning of the fourth amendment.               People v. Gonzalez, 204 Ill. 2d

220 (2003).      Because a traffic stop is more analogous to a Terry

investigative stop (see Terry v. Ohio, 392 U.S. 1 (1968)) than to

a formal arrest, the reasonableness of a traffic stop is analyzed

under Terry principles.          Gonzalez, 204 Ill. 2d at 226.            A Terry

analysis involves a dual inquiry: (1) whether the officer's action

was justified at its inception, and (2) whether it was reasonably

related   in     scope   to    the    circumstances     which    justified    the

interference in the first place.               Gonzalez, 204 Ill. 2d at 228.

     In Gonzalez, the Illinois Supreme Court set out an analytical

framework      for   courts    to    use    in   determining    whether    police

questioning during a traffic stop seizure is consistent with fourth

amendment protections.          If the question is reasonably related to

the initial purpose of the stop, no fourth amendment violation

occurs.   If the question is not, we must consider whether the law

enforcement officer had a reasonable, articulable suspicion that

would justify the question.                In the absence of a reasonable

connection to the purpose of the stop or a reasonable, articulable

suspicion,      we   must     consider     whether,   in   light   of   all   the


                                           4
circumstances      and    common   sense,      the   question     impermissibly

prolonged the detention or changed the fundamental nature of the

stop.      Gonzalez, 204 Ill. 2d at 235.

      In this case, no issue exists concerning the lawfulness of the

initial stop.      Rather, this appeal concerns the lawfulness of the

officer's conduct following the initial stop.                    Officer York’s

initial questioning of the driver and request for identification

was justified.        Those queries were reasonably related to the

initial purpose of the encounter; the investigation of a traffic

violation.      However, the background check of defendant was not

related to the initial justification for the stop.                Defendant was

simply a passenger in the truck and was not implicated in the

traffic violation. Further, the background check was not supported

by   any    reasonable,     articulable      suspicion   that    defendant   had

committed or was about to commit a crime.            Officer York neither saw

nor suspected that defendant had committed any wrongdoing.

      In the absence of a reasonable articulable suspicion, we must

consider whether the check impermissibly prolonged the detention or

changed the fundamental nature of the stop.               The record does not

resolve     clearly   how   long   the    background     check   prolonged   the

detention.      York testified that he returned to the squad car and

ran a background check on both defendant and his son at the same

time.      York did not testify that the check performed on defendant

was completed before the check on the driver. The background check


                                         5
on   defendant   could   well   have   lengthened   the    duration   of   the

detention if the officer had to wait for the results of the check.

      Regardless of the duration of any extended detention, however,

the background check was impermissible because it changed the

fundamental nature of the traffic stop.         The check converted the

stop from a routine traffic stop into an inquiry into defendant’s

past misconduct.     People v. Miles, 343 Ill. App. 3d 1026 (2003)

(officers    impermissibly        prolonged     stop        and   increased

confrontational nature because questions asked of passenger were

not related to purpose of the stop).          People v. Jones, 346 Ill.

App. 3d 1101 (2004).

      We note that our conclusion is consistent with the United

State Supreme Court’s decision in Illinois v. Caballes, 543 U.S.

405 (2005), and the Illinois supreme court’s revised opinion in

People v. Caballes, 221 Ill. 2d 282 (2006).               Our case does not

involve a dog sniff, nor was the decision based on any analysis of

the issues under the Illinois constitution.         The cases are further

distinguished because Caballes was the driver of the speeding car

while defendant was a passenger in a car whose driver was stopped

for a "vehicle tag violation," and, in Caballes, there was no claim

of improper extension of the time or scope of the original stop.

      The State claims that even if the officer’s conduct violated

defendant’s constitutional right, the trial court properly denied




                                       6
defendant’s motion to suppress the evidence and quash the arrest by

applying the doctrine of inevitable discovery.

      Under the inevitable discovery doctrine, evidence obtained by

an officer in violation of a defendant's constitutional rights,

which otherwise would be inadmissible, may be admitted if the

prosecution can show that the evidence inevitably would have been

discovered without reference to the officer's error.              Nix v.

Williams, 467 U.S. 431 (1984); People v. Edwards, 144 Ill. 2d 108

(1991).

      Here, there was nothing inevitable about defendant's arrest

for   cannabis.   Officer   York   never     articulated   a   reasonable

suspicion that defendant had committed or was about to commit a

crime.    Knowing someone's name does not qualify as a reasonable

articulable   suspicion.    The    request    for   identification   and

background check of the defendant, a passenger, was impermissible

under Gonzalez, no matter how the officer got his name.         Thus, the

defendant's seizure was unreasonable.

      The trial court erred as a matter of law when it denied the

defendant's motion to suppress.    Accordingly, we must reverse the

defendant's conviction for cannabis possession.

      The order of circuit court of McDonough County denying the

defendant's motion to suppress the evidence is reversed, and the

judgment of conviction is reversed.

      Reversed.


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      HOLDRIDGE, J., concurring.

      JUSTICE SCHMIDT, dissenting:

      The majority holds that it is impermissible for a police

officer to run a warrant check on a passenger during a routine

traffic stop absent a reasonable, articulable suspicion of criminal

activity.        It then professes that its holding comports to Illinois

v. Caballes and People v. Caballes.                   Slip op. at 6.     It does not

and, therefore, I dissent.

      A little history of this case seems appropriate. The original

order of this court, a 2 to 1 majority (People v. Andrews, No. 3--

02--0569 (2004) (unpublished order under Supreme Court Rule 23))

that came to the same conclusion as does the majority here, was

vacated by our supreme court in a supervisory order that directed

us to reconsider the case in light of Illinois v. Caballes and

People v. Caballes.         People v. Andrews, 221 Ill. 2d 644, 853 N.E.2d

1230 (2006).

      "By    the    logic    of   Caballes,          checking   for   warrants     on   a

passenger changes the fundamental nature of the traffic stop only

if   (1)    it    causes    the   seizure       to    last   longer   than   the   time

reasonably required for such a traffic stop or (2) it infringes

upon the passenger's legitimate interest in privacy."                        People v.

Roberson, 367 Ill App. 3d 193, 201, 854 N.E.2d 317, 324 (2006).

(Roberson contains an excellent analysis of the issues that I will

not repeat here.)


                                            8
       There is no evidence in the record before us to support an

allegation that the warrant search prolonged the duration of this

traffic stop.      In fact, as the majority acknowledges, there is no

evidence in the record before us indicating how long the traffic

stop lasted. Any doubts raised by the incompleteness of the record

will be resolved against the appellant.            People v. Stewart, 179

Ill. 2d 556, 689 N.E.2d 1129 (1997).

       Since nothing in the record indicates the duration of the stop

was expanded by Officer York's actions, our next task should be to

determine whether his actions infringed upon defendant's legitimate

interest in privacy.     If it did not, under Caballes, it could not

have impermissibly changed the nature of the traffic stop.

       Officers have the right to ask citizens questions, even

incriminating ones, when the officer has no reasonable, articulable

suspicion of criminal activity.         People v. Luedemann, 222 Ill. 2d

530, 857 N.E.2d 187 (2006).      The Luedemann court acknowledged the

theory that "'police officers can approach individuals as to whom

they   have   no   reasonable   suspicion    and   ask   them   potentially

incriminating questions'" is well settled in the law and has been

endorsed by the United States Supreme Court "'a number of times.'"

Luedemann, 222 Ill. 2d at 549, quoting Florida v. Bostick, 501 U.S.

429, 439, 115 L. Ed. 2d 389, 401, 111 S. Ct. 2382, 2388 (1991).

"[T]he law clearly provides that a police officer does not violate

the fourth amendment merely by approaching a person in public to


                                    9
ask questions if the person is willing to listen. *** [T]he police

have     the    right       to   approach       citizens      and     ask    potentially

incriminating questions."               Luedemann, 222 Ill. 2d at 549, citing

Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 401, 111

S. Ct. 2382, 2388 (1991).               Officer York was well within his rights

in asking defendant for identification. The majority concedes this

point.

       "The existence of an arrest warrant is a matter of public

record."       Gist v. Macon County Sheriff's Department, 284 Ill. App.

3d 367, 377, 671 N.E.2d 1154, 1161 (1996).                          "[T]he expectation

'that    certain       facts     will    not    come    to    the    attention   of    the

authorities' is not the same as an interest in 'privacy that

society    is     prepared       to     consider    reasonable.'"           Illinois    v.

Caballes, 543 U.S. 405, 408-09, 160 L. Ed. 2d 842, 847, 125 S. Ct.

834, 837-38 (2005), quoting United States v. Jacobsen, 466 U.S.

109, 122, 80 L. Ed. 2d 85, 100, 104 S. Ct. 1652, 1661 (1984).                          The

defendant had no legitimate privacy interest in the fact that an

outstanding writ of attachment for his arrest existed at the time

of the traffic stop.

       On the other hand, the majority erroneously characterizes

Officer York's actions in running a warrant check as converting

"the    stop    from    a    routine      traffic      stop   into    an    inquiry   into

defendant's past misconduct."                  Slip op. at 5.         The language and

analysis employed by the majority are strikingly similar to that


                                               10
used in People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219 (2003).

The United States Supreme Court has vacated the Harris decision and

instructed our supreme court to revisit its analysis in light of

Illinois v. Caballes.      Illinois v. Harris, 543 U.S. 1135, 161 L.

Ed. 2d 94, 125 S. Ct. 1292 (2005).

       The fact is, a warrant check is a computer check to determine

whether there are any current outstanding warrants or writs for the

individual's arrest.       Justice Fitzgerald's dissent in Harris,

joined by Justices Thomas and Garman, recognized this.        People v.

Harris, 207 Ill. 2d at 536 (Fitzgerald, J., dissenting, joined by

Thomas and Garman, JJ.).      In Illinois, police officers routinely

run warrant checks simultaneously through the Law Enforcement

Agency Data System (LEADS) and the National Crime Information

Center (NCIC).      Even 25 years ago, these warrant checks took only

moments to complete.

       Nothing Officer York did changed the nature of this traffic

stop     from   a     constitutionally   permissible   stop    to   an

unconstitutional stop.     It was permissible for the officer to ask

defendant questions.     It was permissible for the officer to run a

warrant check.       It was proper for the officer to search the

defendant's person once he lawfully arrested defendant pursuant to

the outstanding writ.

       From a common sense standpoint, to require police to have a

reasonable, articulable suspicion of criminal activity to run a


                                   11
warrant check seems somewhat silly.              What is the likelihood that

police will find a warrant for a crime that a person has just

committed or is about to commit?                 What about the officer who

recognizes someone on the street and simply requests a warrant

check on the individual without first stopping him?                 Is that an

invasion of the person's constitutional rights to privacy?              In the

real world, police officers do this every day.                It is a practice

which leads to many arrests based on outstanding warrants and

writs.    As long as the warrant check on the passenger does not

unreasonably prolong the traffic stop, I can think of no relevant

difference between the warrant check at issue here and one where

the officer runs a warrant check on someone the officer recognizes

standing on the street or passing by in a car.           If the law requires

a reasonable, articulable suspicion to check public records as the

majority holds here today, both are impermissible.

     Finally, although I find that no unconstitutional action was

taken    by    Officer   York,   I   feel   it    necessary   to   address   the

"inevitable discovery" issues raised by the State as it appears the

majority misconstrues the State's argument. The majority concludes

that since "there was nothing inevitable about the defendant's

arrest for cannabis," the inevitable discovery doctrine does not

cure what the majority incorrectly determined to be an improper

search.       Slip op. at 6.     The State did not argue simply that the

arrest for cannabis was inevitable but rather the warrant check was


                                       12
inevitable, given Officer York's familiarity with the defendant.

This,   in   turn,   made   defendant's   arrest   based   upon    the   writ

inevitable.    This was so, even though defendant argued          below that

the officer's request for his identification was a fourth amendment

violation.    That is, the State argued that even if the court found

the request for identification constitutionally infirm, the officer

knew defendant. The trial court made the specific finding that the

officer recognized defendant and would have run a warrant check

even without securing defendant's identification.             The State's

"inevitability" argument did not address or anticipate the majority

ruling that it was the running of the warrant check, as opposed to

requesting identification, where the officer went afoul of the

fourth amendment.




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