                       Illinois Official Reports

                               Appellate Court



                  People v. Pulling, 2015 IL App (3d) 140516



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           FRANK E. PULLING, Defendant-Appellee.




District & No.    Third District
                  Docket No. 3-14-0516




Filed             June 17, 2015




Decision Under    Appeal from the Circuit Court of Henry County, No. 13-CF-310; the
Review            Hon. Richard A. Zimmer, Judge, presiding.




Judgment          Affirmed.




Counsel on        Matthew P. Schutte, State’s Attorney, of Cambridge (Judith Z. Kelly,
Appeal            of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                  People.

                  Larry S. Vandersnick, of Farber Law Office, of Geneseo, and
                  Matthew Paulson, of Rock Island, for appellee.
     Panel                     PRESIDING JUSTICE McDADE delivered the judgment of the
                               court, with opinion.
                               Justices Carter and O’Brien concurred in the judgment and opinion.




                                                 OPINION

¶1         The State appeals the trial court’s order that granted defendant Frank E. Pulling’s motion to
       suppress evidence. On appeal, the State argues that the trial court erred in finding that the
       traffic stop was unreasonably prolonged prior to the canine alert, and therefore, the motion to
       suppress should not have been granted. We affirm.

¶2                                                  FACTS
¶3         Defendant was charged by information with unlawful possession with intent to deliver a
       controlled substance (720 ILCS 570/401(a)(2)(B) (West 2012)) and unlawful possession of a
       controlled substance (id.). Prior to trial, defendant filed a motion to quash arrest and suppress
       evidence.
¶4         At the hearing on defendant’s motion, Illinois State Trooper Andrew Fratzke testified that
       on November 2, 2013, he stopped a 2013 Hyundai for speeding. Phillip Macon was driving the
       car and defendant was riding in the front passenger seat.
¶5         During Fratzke’s testimony, Macon’s attorney introduced the dash camera video recording
       of the traffic stop. Approximately one minute into the recording, Fratzke initiated the traffic
       stop and approached the Hyundai. Fratzke asked for the two occupants’ identification cards,
       and one of the occupants stated that they were driving to Iowa. Macon told Fratzke that his
       driver’s license was suspended due to unpaid child support. Thereafter, Fratzke returned to his
       patrol car and ran various background and records checks. Approximately four minutes into
       the stop, Fratzke had all of the information needed to prepare the citations. Fratzke stated that it
       generally took him between three and five minutes to write a speeding ticket, but this stop
       would be longer because he also prepared a citation for driving on a suspended driver’s license.
¶6         After six minutes, Fratzke reapproached the Hyundai and asked Macon to accompany him
       to the patrol car to complete some paperwork. At the time, Fratzke did not notice anything
       unusual about Macon, defendant, or the contents of the Hyundai. Inside the patrol car, Fratzke
       asked Macon several questions. Macon explained that defendant was his “godbrother,” and
       they were driving to Sioux City, Iowa, because his cousin, Tony Brown, had been killed.
¶7         Approximately eight minutes into the stop, Fratzke exited the patrol car and approached
       defendant, who was still sitting in the Hyundai. Defendant stated that he was not driving
       because he was ill. Defendant also said that he and Macon were going to his aunt’s funeral in
       Sioux City. Fratzke testified that Macon and defendant’s inconsistent stories raised his
       suspicion of criminal activity, and Fratzke returned to his patrol car and confronted Macon
       about the discrepancies. Macon maintained that he and defendant were going to a funeral for
       his cousin, Brown. In an effort to verify Macon’s story, Fratzke used Google to search the
       Internet for information on Brown’s death. Fratzke stated that he had stopped preparing the
       traffic citations while he conducted the Google search. Fratzke was unable to locate

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       information on Brown’s death, and Macon stated that he did not understand why news of
       Brown’s death was not in the newspapers. Fratzke told Macon that he was going to walk his
       canine around the Hyundai, and Macon stated that he had two bags in the car and defendant did
       not have any. Fratzke thought it was suspicious that someone was going to a funeral without a
       change of clothes.
¶8         After 13 minutes, Fratzke went back to the Hyundai to speak with defendant. Defendant
       said that he and Macon were going to stay with Tony, a close acquaintance. Fratzke told
       defendant to exit the Hyundai while he conducted a free-air sniff. Defendant got out of the car,
       and Fratzke noticed that defendant was sweating and hyperventilating. Fratzke concluded that
       defendant was unable to drive and offered to call an ambulance. Defendant declined the
       ambulance and stated that he was having problems with his blood pressure and was “real cold.”
       Defendant said that he had no problem with Fratzke searching the car, and he had some
       luggage in the vehicle.
¶9         After 16 minutes, Fratzke began the free-air sniff on the driver’s side of the car.
       Approximately, 45 seconds later, Fratzke concluded the sniff on the passenger side of the car.
       Fratzke testified that the canine alerted near the passenger door. Fratzke then searched the
       Hyundai and found suspected crack cocaine in the trunk. Thereafter, he placed Macon and
       defendant under arrest.
¶ 10       At the conclusion of the hearing, the trial court ruled that the stop was not unduly
       prolonged and denied defendant’s motion to suppress. Defendant filed a motion to reconsider
       and, after a hearing on the motion, the trial court granted defendant’s motion to suppress
       evidence. The State appeals.

¶ 11                                             ANALYSIS
¶ 12        The State argues that the trial court erred in finding that the traffic stop was unreasonably
       prolonged prior to the canine alert. After reviewing the video recording of the stop and trial
       testimony, we conclude that the trial court did not err in granting defendant’s motion to
       suppress evidence.
¶ 13        We review the trial court’s ruling on a motion to suppress evidence under a two-part test.
       People v. Harris, 228 Ill. 2d 222, 230 (2008). The trial court’s factual findings are entitled to
       deference and will be reversed only if they are against the manifest weight of the evidence. Id.
       The ultimate ruling of whether reasonable suspicion or probable cause exists and whether
       suppression is warranted is reviewed de novo. Id.
¶ 14        The federal and state constitutions protect citizens from unreasonable searches and
       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. Stopping a vehicle and detaining
       its occupants constitutes a seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979); Harris, 228
       Ill. 2d at 231. However, traffic stops are less like formal arrests, and more like investigative
       detentions. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). As a result, the reasonableness of
       a traffic stop is measured by the standard in Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, an
       officer may briefly detain and question a person if the officer reasonably believes that person
       has committed, or is about to commit, a crime. Id. at 21-22; see also 725 ILCS 5/107-14 (West
       2012). “[A]n investigative detention must be temporary and last no longer than is necessary to
       effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). An initially
       lawful seizure can violate the fourth amendment if it is “prolonged beyond the time reasonably


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       required to complete” the purpose of the stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005);
       see also Harris, 228 Ill. 2d at 235. “Mere hunches and unparticularized suspicions are not
       enough to justify a broadening of the stop into an investigatory detention.” People v. Ruffin,
       315 Ill. App. 3d 744, 748 (2000). A routine traffic stop may not be used as a subterfuge to
       obtain other evidence based on an officer’s suspicion. People v. Koutsakis, 272 Ill. App. 3d
       159, 164 (1995).
¶ 15       Here, Fratzke unlawfully prolonged the duration of the stop when he interrupted his traffic
       citation preparation to conduct a free-air sniff based on an unparticularized suspicion of
       criminal activity. Fratzke testified that approximately four minutes into the stop, he had all the
       information necessary to prepare the citations for speeding and driving on a suspended driver’s
       license. However, Fratzke stopped writing the citations when he noticed inconsistencies in the
       stories recited by Macon and defendant and conducted a free-air sniff. Fratzke’s deviation
       from the purpose of the stop to conduct a drug investigation was not supported by independent
       reasonable suspicion, and therefore, it unlawfully prolonged the duration of the stop.
¶ 16       Recently, in Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015), the Supreme
       Court reviewed the issue of whether a police officer may extend an otherwise completed traffic
       stop to conduct a dog sniff. A Nebraska police officer stopped a vehicle driven by Denny
       Rodriguez for a possible lane violation. The officer asked for Rodriguez’s driver’s license,
       registration, and proof of insurance, and asked Rodriguez to accompany him to the patrol car.
       Rodriguez refused and the officer returned to his patrol car and conducted a records check.
       Thereafter, the officer reapproached the vehicle and requested the passenger’s identification.
       The passenger complied, and the officer ran a records check on the passenger and wrote a
       warning ticket. The officer returned to Rodriguez’s vehicle a third time to issue the warning
       ticket and return the occupants’ documents. However, the officer did not consider Rodriguez
       “free to leave” and requested permission to conduct a free-air sniff. (Internal quotation marks
       omitted.) Id. at ___, 135 S. Ct. at 1613. Rodriguez said no, and the officer instructed Rodriguez
       to exit the vehicle. Rodriguez complied, and the officer conducted the free-air sniff. The canine
       alerted to the presence of drugs, and a search of the vehicle revealed a large bag of
       methamphetamine.
¶ 17       In analyzing the case, the Supreme Court noted that a lawful seizure for a traffic violation
       “remains lawful only ‘so long as [unrelated] inquiries do not measurably extend the duration of
       the stop.’ ” Id. at ___, 135 S. Ct. at 1615 (quoting Arizona v. Johnson, 555 U.S. 323, 333
       (2009)). However, an officer may conduct certain unrelated checks during an otherwise lawful
       traffic stop, so long as he does so in a way that does not prolong the stop. Id. at ___, 135 S. Ct.
       at 1615. The unrelated checks include: checking the driver’s license, determining whether
       there are outstanding warrants against the driver, and inspecting the automobile’s registration
       and proof of insurance. Id. at ___, 135 S. Ct. at 1615. The Supreme Court noted that “[t]hese
       checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on
       the road are operated safely and responsibly.” Id. at ___, 135 S. Ct. at 1615. In contrast, a dog
       sniff is aimed at detecting evidence of criminal wrongdoing and is not an ordinary incident of a
       traffic stop. Id. at ___, 135 S. Ct. at 1615. The Court held that a traffic stop exceeding the time
       needed to handle the matter for which the stop was made violates the constitution’s shield
       against unreasonable seizures. Id. at ___, 135 S. Ct. at 1612.
¶ 18       The State argues that the stop in the instant case was approximately 15 minutes in length
       and, although Fratzke was not preparing the citations during this period, it was not unduly

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           prolonged because the length would have been similar if Fratzke had been preparing the
           speeding and driving on a suspended driver’s license citations. However, it is of little
           consequence that the overall length was similar to a stop where two traffic citations are issued
           because the record established that the stop was lengthened by the free-air sniff, a task
           unrelated to the reason for the stop. If Fratzke had completed the tickets prior to or after the
           free-air sniff, the stop still would have been prolonged by this unrelated investigation that was
           not supported by independent reasonable suspicion.
¶ 19           We are cognizant of the fact that the instant case differs factually with Rodriguez in that the
           free-air sniff occurred before the traffic stop had ended. However, this positional difference of
           the point at which the sniff occurs has no impact on our ruling. In Rodriguez, the Supreme
           Court stated that “[t]he critical question *** is not whether the dog sniff occurs before or after
           the officer issues a ticket *** but whether conducting the sniff ‘prolongs’ i.e., adds time to ‘the
           stop.’ ” Id. at ___, 135 S. Ct. at 1616. There is no dispute that the dog sniff added time to the
           total duration of the stop at issue. Moreover, the additional time was to conduct a check that
           was unrelated to this otherwise lawful traffic stop. See id. at ___, 135 S. Ct. at 1616.
           Consequently, we conclude that the free-air sniff prolonged the traffic stop and affirm the trial
           court’s ruling on defendant’s motion to suppress evidence.
¶ 20           Tangentially, we note that although defendant gave Fratzke consent to search the vehicle,
           defendant’s consent did not transform this prolonged stop into a permissible seizure. 1
           Defendant’s consent was acquired after Fratzke had explained to Macon and defendant that he
           was going to conduct a free-air sniff. Neither Macon nor defendant consented to the sniff,
           which was conducted before the vehicle search. As a result, the stop was prolonged before
           Fratzke could invoke defendant’s consent to justify the search of the vehicle.

¶ 21                                            CONCLUSION
¶ 22           The judgment of the circuit court of Henry County is affirmed.

¶ 23           Affirmed.




           1
            The State does not argue that the motion to suppress should have been denied on consent grounds, and
       therefore, has forfeited this argument.

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