                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Neuberger, 2011 IL App (2d) 100379




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     JACOB A. NEUBERGER, Defendant-Appellant.



District & No.              Second District
                            Docket No. 2-10-0379


Filed                       October 21, 2011


Held                        Defendant’s convictions for unlawful possession of cannabis and drug
(Note: This syllabus        paraphernalia were upheld where the investigative stop of defendant was
constitutes no part of      lawful and a police dog’s alert to the vehicle in which defendant was a
the opinion of the court    passenger, standing alone, justified a search of defendant; however, the
but has been prepared       mittimus was modified to reflect a credit of $5 toward defendant’s fine
by the Reporter of          based on his presentence incarceration.
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Carroll County, Nos. 09-CM-127, 09-
Review                      CM-128; the Hon. John F. Joyce, Judge, presiding.



Judgment                    Affirmed as modified.
Counsel on                  Thomas A. Lilien and Kim M. DeWitt, both of State Appellate
Appeal                      Defender’s Office, of Elgin, for appellant.

                            Scott L. Brinkmeier, State’s Attorney, of Mt. Carroll (Lawrence M. Bauer
                            and Edward R. Psenicka, both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                            court, with opinion.
                            Justices Hudson and Birkett concurred in the judgment and opinion.



                                              OPINION

¶1           Following a stipulated bench trial in the circuit court of Carroll County, defendant, Jacob
        A. Neuberger, was found guilty of unlawful possession of cannabis (720 ILCS 550/4(a)
        (West 2008)) and possession of drug paraphernalia (720 ILCS 600/3.5 (West 2008)). The
        trial court placed defendant on court supervision for 12 months for both offenses and
        imposed a $750 fine for possession of drug paraphernalia. On appeal, defendant argues that
        the trial court erred in denying his motion to quash his arrest and suppress evidence. In the
        alternative, defendant argues that, as a result of the time he spent in custody prior to trial, he
        is entitled to monetary credit toward his fine. We affirm as modified.
¶2           At the hearing on defendant’s motion to quash and suppress, Mount Carroll police officer
        Dennis Asay testified that just before midnight on July 30, 2009, while on patrol in a marked
        squad car, he responded to a report that someone was hiding in the bushes on the north side
        of the post office, which is located at the corner of Rapp Street and Clay Street and is “kitty
        corner” from the Carroll County courthouse. According to Asay, the information came from
        either a dispatcher or a jailer who noticed the subject crouching behind the bushes, which are
        located between the post office building and the sidewalk on Rapp Street. Asay was a few
        blocks away when he received the report. When he approached the intersection of Rapp
        Street and Clay Street, he observed a red automobile pull onto Rapp Street and stop in front
        of the north side of the post office. Asay then observed someone come from behind the
        bushes, jump over them, run over to the automobile, and get into the backseat. At that point,
        Asay activated his vehicle’s emergency lights and pulled up behind the automobile. When
        Asay approached the automobile, he recognized the individual who had jumped over the
        bushes to be Karl Beyer. Danielle Neuschwanger was driving the vehicle, and defendant was
        in the front passenger seat. Asay spoke with Neuschwanger and then turned his attention to
        Beyer, a youth who was violating curfew. A sheriff’s deputy who also responded to the report
        took Beyer into custody. Asay then “went back to further investigate the driver.” Asay
        testified that he detected the odor of an alcoholic beverage on her breath and that her eyes

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     were bloodshot. Asay had Neuschwanger exit the vehicle and perform field sobriety tests.
     He concluded that she was not intoxicated.
¶3        While Neuschwanger was performing the field sobriety tests, Michael Holland, a Carroll
     County sheriff’s deputy, arrived at the scene with a drug-detection dog named “Illo.” When
     Neuschwanger completed the tests, she returned to the driver’s seat of the vehicle and Asay
     began to speak with defendant. Holland walked Illo around the vehicle a couple of times. (On
     cross-examination, Asay indicated that he was unsure whether Holland started to walk the
     dog around the vehicle before or after Asay finished administering the field sobriety tests to
     Neuschwanger.) Holland advised Asay that Illo had alerted on the car, indicating the
     presence of contraband, and Asay then asked defendant to step out of the vehicle. Asay
     frisked defendant and had him remove his shoes. In one of the shoes, Asay discovered a
     baggie containing what appeared to Asay to be cannabis. The same shoe also contained a
     “metal device” that had what appeared to be burnt cannabis in it. Asay then placed defendant
     under arrest.
¶4        Holland testified that, when he arrived at the scene, Asay was administering field sobriety
     tests to Neuschwanger, and defendant was sitting in the front passenger seat of a red four-
     door automobile. Neuschwanger sat in the driver’s seat while Holland walked Illo around the
     vehicle. Holland testified that he and Illo started the walk at the rear driver’s-side corner of
     the vehicle. They proceeded counterclockwise behind the vehicle and around to the passenger
     side. Illo alerted when he reached the handle of the front passenger door. After Asay placed
     defendant under arrest, Holland searched the automobile. Holland testified that he discovered
     “contraband” in the vehicle. He did not specify the nature of the contraband or indicate where
     it was located within the vehicle.
¶5        In denying the motion, the trial court reasoned that, after Illo alerted to the automobile
     defendant had been traveling in, the police had probable cause to search the vehicle and
     considerations of officer safety justified searching the occupants of the vehicle before
     searching the vehicle itself.
¶6        Under Terry v. Ohio, 392 U.S. 1 (1968), a police officer who lacks probable cause for an
     arrest may nonetheless effect a limited investigatory stop where there exists a reasonable
     suspicion, based upon specific and articulable facts, that the person detained has committed
     or is about to commit a crime. Id. at 21-22. “[A]lthough reasonable suspicion demands more
     than a mere hunch [citation], the standard requires only that ‘a police officer must be able to
     point to specific, articulable facts which, when taken together with the rational inferences
     from those facts, reasonably warrant the intrusion’ [citation].” Village of Lincolnshire v.
     Kelly, 389 Ill. App. 3d 881, 887 (2009) (quoting People v. Schacht, 233 Ill. App. 3d 271, 275
     (1992)). In determining whether reasonable suspicion exists, courts must make commonsense
     judgments and inferences about human behavior. People v. Payne, 393 Ill. App. 3d 175, 180
     (2009). Reasonable suspicion may arise from acts that are not crimes in their own right; “the
     question for the court is the degree of suspicion that attaches to the circumstances
     surrounding a defendant’s actions.” Id. “Facts that describe a large category of presumably
     innocent travelers are insufficient to support an investigatory stop.” Id. On the other hand,
     it is not necessary to show that the belief that the suspect has committed a crime is more
     likely true than false. Kelly, 389 Ill. App. 3d at 886-87.

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¶7        Defendant maintains that there was no basis to stop the vehicle in which he was traveling.
     Defendant acknowledges that he did not contest the stop during the proceedings below.
     However, he contends that his trial attorney’s failure to raise the issue violated his right to
     the effective assistance of counsel. Under the two-prong test set forth in Strickland v.
     Washington, 466 U.S. 668 (1984), a defendant claiming a deprivation of the right to the
     effective assistance of counsel must establish that counsel’s performance “fell below an
     objective standard of reasonableness” and that the deficient performance was prejudicial in
     that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
     of the proceeding would have been different.” Id. at 688, 694. As explained below, the initial
     stop was lawful, so an argument to the contrary by trial counsel would not have changed the
     result of the suppression hearing.
¶8        Defendant argues that Beyer had done nothing to give rise to a reasonable suspicion that
     criminal activity was afoot. Defendant argues that it is not unusual for people to be out at
     midnight during the summer. Nor, according to defendant, “would it be unusual for a person
     to crouch while on a walk: to tie a shoe, retrieve a dropped object, or recover a hat that has
     blown off one’s head.” Defendant points out that a person might also crouch down to look
     for “a wayward pet, or even a child who has run away in a fit of temper.” But Beyer’s actions
     were not characteristic of a law-abiding citizen taking the air. One out for a walk late at night
     would not ordinarily be found behind bushes that separate a government building from the
     sidewalk. Nor would he or she be expected to jump over those bushes and run to a car. It
     would be reasonable for one aware of these facts to suspect that a burglary, an act of
     vandalism, or some other crime might be taking place. That there were plausible innocent
     explanations for Beyer’s conduct does not mean that it was unreasonable to subject him to
     the limited intrusion of a Terry stop to investigate those possibilities. Defendant cites several
     decisions in which we held that Terry stops were unlawful. See People v. Haywood, 407 Ill.
     App. 3d 540 (2011); People v. Ocampo, 377 Ill. App. 3d 150 (2007); People v. Kipfer, 356
     Ill. App. 3d 132 (2005). Suffice it to say that we agree with the State that the facts of those
     cases bear little resemblance to what transpired here. We therefore conclude that the initial
     stop was lawful.
¶9        We next consider whether a search of defendant’s person was permissible. There is no
     dispute that Illo’s alert supplied probable cause to search the vehicle in which defendant had
     been traveling. See, e.g., United States v. Donnelly, 475 F.3d 946, 955 (8th Cir. 2007).
     Probable cause to search a vehicle for contraband does not automatically confer authority to
     conduct an incidental search of the occupants of the vehicle, even if the contraband in
     question is the sort that could easily be concealed on one’s person. United States v. Di Re,
     332 U.S. 581, 586-87 (1948). However, in People v. Stout, 106 Ill. 2d 77 (1985), our
     supreme court held that the odor of burning cannabis emanating from a lawfully stopped
     automobile supplied probable cause to conduct a warrantless search of the driver’s person.
     In Stout, the driver was accompanied by two passengers, but the court did not consider
     whether a warrantless search of the passengers would have been permissible. The Fourth
     District extended Stout to passengers in People v. Boyd, 298 Ill. App. 3d 1118, 1127 (1998).
     The Boyd court concluded that there was no logical basis for treating the passengers
     differently from the driver in such circumstances. The Boyd court also noted authority from

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       other jurisdictions that an officer who detects burning cannabis in an automobile may arrest
       and search all the occupants. Id. at 1127-28.
¶ 10       We see no reason to reach a different result in this case merely because the presence of
       drugs was detected via canine, rather than human, olfaction. In particular we reject the
       approach taken by the Fourth District in People v. Fondia, 317 Ill. App. 3d 966 (2000), and
       People v. Staley, 334 Ill. App. 3d 358 (2002). Fondia held that a drug-sniffing dog’s alert to
       a vehicle does not justify a search of the occupants of the vehicle; rather, those persons must
       be sniffed individually before they may be searched. The Fondia court reasoned, in essence,
       that when a dog’s alert casts collective suspicion on a vehicle’s occupants, the police may
       not abstain from gathering additional available information that might help to confirm or
       dispel that suspicion as to each occupant individually.1 Staley, as we read it, reaffirmed
       Fondia’s basic analysis, but held that a dog’s alert to the vehicle, standing alone, will justify
       searching the occupants if there is evidence that having the dog sniff the occupants
       individually would raise valid safety concerns.
¶ 11       We are aware of authority suggesting that the existence of probable cause may depend
       not only on what information is known to police, but also on whether the police refrained
       from obtaining additional readily available information. See generally 2 Wayne R. LaFave,
       Search and Seizure § 3.2(d), at 51-55 (4th ed. 2004). This expansion of the probable cause
       inquiry might be appropriate in cases involving obvious lapses by police. However, we do
       not believe that the dog-sniff scenario presented in this case and in Fondia and Staley fits that
       description. We note that it is evident from Holland’s testimony that his decision to have Illo
       sniff the vehicle but not the occupants was consistent with his training. We are in no position
       to determine whether Holland was trained well or poorly in this respect.
¶ 12       Courts may not condone police conduct that runs afoul of the constitution, but we are
       hesitant to endorse a probable cause analysis that gives courts broad power to declare that
       specialized investigative techniques are constitutionally mandatory. Moreover, to the extent
       the probable cause inquiry may properly be expanded to look not only at what information
       was known to police, but also at what additional information was readily obtainable, we
       believe that the burden properly rests on the defendant to establish that a particular
       investigative technique should have been employed. Thus, in our view, the Fondia court
       erred in second-guessing the officer’s decision not to have the dog sniff the defendant in that
       case. Assuming, arguendo, that such a decision is reviewable in a suppression hearing, we
       agree with the Staley court that a risk of injury to the suspect justifies the officer’s decision.
       We do not agree, however, with the composite holding of Fondia and Staley, that the State
       bears the burden of establishing this justification; if anything, the defendant should bear the
       burden of showing that a specialized investigative technique should have been employed. We
       therefore conclude that Stout and Boyd are controlling. In view of this conclusion, we need
       not consider whether the search of defendant’s person was a permissible protective search


               1
                We note that the majority in Fondia based its decision largely on the dissenting opinion in
       Woodbury v. State, 730 So. 2d 354, 359 (Fla. Dist. Ct. App. 1999) (en banc) (Harris, J., dissenting,
       joined by Griffin, C.J.) (per curiam).

                                                   -5-
       for weapons. See Terry, 392 U.S. at 27. Nor is it necessary to consider the State’s argument
       that the evidence discovered during the search would be admissible under the inevitable
       discovery rule. See Nix v. Williams, 467 U.S. 431, 448 (1984).
¶ 13        We turn now to defendant’s alternative argument that, as a result of the time he spent in
       pretrial custody, he is entitled to a monetary credit toward his fine. Section 110-14(a) of the
       Code of Criminal Procedure of 1963 provides:
            “Any person incarcerated on a bailable offense who does not supply bail and against
            whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for
            each day so incarcerated upon application of the defendant. However, in no case shall the
            amount so allowed or credited exceed the amount of the fine.” 725 ILCS 5/110-14(a)
            (West 2008).
       A defendant may apply for the credit for the first time on appeal. People v. Caballero, 228
       Ill. 2d 79, 88 (2008). The parties are in agreement that defendant was in custody for one day
       and is entitled to a $5 credit toward his $750 fine.
¶ 14        For the foregoing reasons the mittimus is modified to reflect a credit of $5 toward
       defendant’s $750 fine. In all other respects, the judgment of the circuit court of Carroll
       County is affirmed.

¶ 15      Affirmed as modified.




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