                                                                         Digitally signed by
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                              Appellate Court                            Date: 2017.12.21
                                                                         11:52:29 -06'00'




                   People v. Paddy, 2017 IL App (2d) 160395



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           DEREK J. PADDY, Defendant-Appellee.—THE PEOPLE OF THE
                  STATE OF ILLINOIS, Plaintiff-Appellant, v. JESSICA D.
                  JOHNSON, Defendant-Appellee.—THE PEOPLE OF THE STATE
                  OF ILLINOIS, Plaintiff-Appellant, v. LEO W. COOK, Defendant-
                  Appellee.



District & No.    Second District
                  Docket Nos. 2-16-0395, 2-16-0396, 2-16-0403 cons.



Filed             October 17, 2017



Decision Under    Appeal from the Circuit Court of Kane County, Nos. 15-CF-1835,
Review            15-CF-1836, 15-CF-1834; the Hon. Donald M. Tegeler, Judge,
                  presiding.



Judgment          Affirmed.


Counsel on        Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
Appeal            Delfino, Lawrence M. Bauer, and Stephanie Hoit Lee, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

                  Michael J. Pelletier, Thomas A. Lilien, and Bruce Kirkham, of State
                  Appellate Defender’s Office, of Elgin, for appellees.
     Panel                     JUSTICE BURKE delivered the judgment of the court, with opinion.
                               Justices McLaren and Schostok concurred in the judgment and
                               opinion.


                                                 OPINION

¶1         In this consolidated appeal, the State appeals from the judgments of the circuit court of
       Kane County granting the motions of defendants—Derek J. Paddy, Jessica D. Johnson, and
       Leo W. Cook—to suppress evidence found following a dog sniff of their vehicle. Because the
       traffic stop was unduly prolonged, the dog sniff violated the fourth amendment. Thus, we
       affirm.

¶2                                         I. BACKGROUND
¶3         Defendants were indicted on charges of armed violence (720 ILCS 5/33A-2(a) (West
       2014)), unlawful possession of 100 grams or more but less than 400 grams of a controlled
       substance (heroin) with the intent to deliver (720 ILCS 570/401(a)(1)(B) (West 2014)), and
       unlawful possession of 100 grams or more but less than 400 grams of heroin (720 ILCS
       570/402(a)(1)(B) (West 2014)). Defendants moved to suppress the evidence seized from an
       automobile in which Johnson was the driver and Paddy and Cook were passengers.1
¶4         The following facts are taken from the hearing on the motions to suppress. On November
       11, 2015, Sergeant Ron Hain of the Kane County sheriff’s department was assigned to a
       special operations unit conducting drug interdiction on Interstate 90. At approximately 1:18
       p.m., as he drove west on I-90 near Route 47, Sergeant Hain observed a westbound Chevrolet
       Impala with Minnesota license plates, following a tractor-trailer. Although the Impala was
       traveling within the posted speed limit, it appeared to be following the tractor-trailer too
       closely and some of its windows were heavily tinted. Thus, Sergeant Hain decided to stop the
       Impala.
¶5         After stopping the Impala, Sergeant Hain approached the open front passenger-side
       window. Cook was in the front passenger seat, and Paddy was seated in the rear behind
       Johnson. According to Sergeant Hain, Cook’s face was pale, he was trembling, and he would
       look only at Johnson. Paddy was very rigid, he was pressed against the backseat, and he stared
       out the driver’s-side rear window. Sergeant Hain considered Cook and Paddy to be nervous.
¶6         Sergeant Hain asked Johnson for a driver’s license and proof of insurance. Johnson
       provided her Minnesota driver’s license but did not provide an insurance card.
¶7         Because he was the only officer present, there were three occupants, and two of them
       appeared nervous, Sergeant Hain asked Johnson to exit the vehicle. As they stood between the
       Impala and the squad car, Sergeant Hain explained to Johnson that he stopped her because she
       was following too closely and to discuss the tinted windows. Johnson acknowledged that the
       windows were too dark and stated that she planned to have them fixed.

             1
             Each defendant was charged in a separate case and filed his or her own motion to suppress. The
       trial court conducted a consolidated hearing. Defendants’ appeals have been consolidated, and they
       have filed a consolidated brief.

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¶8          Sergeant Hain then asked Johnson to sit in the front passenger seat of the squad car. He
       described their conversation as very polite and friendly.
¶9          After entering his squad car, Sergeant Hain began preparing a written warning for
       following too closely. He also conducted a computer-records check, from which he learned
       that the Impala was registered in Minnesota.
¶ 10        As they sat in the squad car, Johnson discussed her travel itinerary. She explained that she
       had traveled from Redby, Minnesota, to Chicago, a 10-hour trip, to drop off a friend whose
       relative had died. Johnson told Sergeant Hain that she had traveled to Chicago with Cook, who
       was her boyfriend, and that Cook had brought along a friend to help with the driving.
       According to Sergeant Hain, Johnson said that they dropped off her friend and turned right
       around to head back to Minnesota.
¶ 11        As Sergeant Hain was talking with Johnson, he requested that Detective Ryan Monaghan, a
       K-9 handler, back him up. According to Sergeant Hain, Detective Monaghan was the only
       officer in the unit available as backup.
¶ 12        Although Sergeant Hain had completed the written warning, he left it on the clipboard. He
       then told Johnson to wait in the squad car while he spoke to Cook about an insurance card. He
       exited the squad car and walked back to the front passenger window.
¶ 13        Sergeant Hain asked Cook to look for an insurance card. He also asked Cook for
       identification and Paddy for his name and date of birth. Sergeant Hain described Cook as being
       pale, having trembling hands, and having difficulty speaking due to a dry mouth. Based on his
       17 years’ experience in law enforcement, Sergeant Hain considered Cook to be overly nervous.
       According to Sergeant Hain, as he stood at the passenger window the second time, he saw
       green flakes on Cook’s face, chest, and pants. Based on Sergeant Hain’s police training and
       experience, he decided that the flakes appeared to be cannabis.
¶ 14        Cook told Sergeant Hain that he and Johnson had driven to Chicago to pick up Paddy.
       Sergeant Hain considered Cook’s story contradictory to Johnson’s statement. Sergeant Hain
       had Cook and Paddy exit the Impala. After obtaining consent from each, he searched them but
       found no contraband. He did not handcuff either man at that point.
¶ 15        After explaining that he was going to conduct a K-9 sniff of the vehicle, Sergeant Hain had
       Paddy stand in front of the Impala and had Cook stand to its rear. Sergeant Hain then allowed
       Paddy to walk a short distance away to relieve himself. According to Sergeant Hain, it is
       routine procedure to have the occupants exit a vehicle before a K-9 sniff.
¶ 16        During the K-9 sniff, the dog, which was trained to passively alert to the odor of drugs by
       sitting down, never did so. Instead, the dog was very excited and attempted to jump through the
       window of the Impala. Detective Monaghan had to repeatedly command the dog to smell for
       drugs, as the dog was distracted by Paddy’s return. According to Detective Monaghan, the dog
       was trained to protect and previously there had been issues with the dog being distracted by
       people in the vicinity of a searched vehicle.
¶ 17        Detective Monaghan explained that, even though the dog did not passively alert to the odor
       of drugs, its behavior indicated that it smelled drugs in the Impala. He added that the dog
       would indicate the presence of a drug odor by showing behavioral changes such as attention,
       drive, focus, changing its breathing pattern, perking its ears, and jumping at an object to get to
       the source of the odor. Factors that affect a dog’s sense of smell include wind and whether the
       drugs are hidden in a deep compartment. It is not uncommon for a dog to try to go through a


                                                   -3-
       window to get at the source of an odor. Although Detective Monaghan shook his head at the
       conclusion of the K-9 sniff, he explained that he did so because he was frustrated by the dog
       being distracted by Paddy. He told Sergeant Hain that the dog reacted to the odor of drugs in
       the Impala.
¶ 18       James Stenfeldt, an expert in training drug-detection dogs, testified for defendants.
       Stenfeldt admitted that Detective Monaghan and his dog were properly trained. He also
       admitted that wind could affect a dog’s ability to smell drugs. After viewing a video recording
       of the dog sniff in this case, Stenfeldt opined that the dog did not display a positive alert or
       otherwise indicate that it smelled drugs. He admitted that there appeared to have been a fairly
       strong wind. He conceded that a dog will get more excited—such as by breathing faster,
       perking its ears, and jumping—when it smells drugs.
¶ 19       After Detective Monaghan advised Sergeant Hain that the dog smelled drugs, Sergeant
       Hain searched the Impala. He found cannabis flakes near the handle of the front passenger door
       as well as a bullet in the map pocket of the door. He found a loaded handgun between the front
       passenger seat and the center console. He then handcuffed Cook and Paddy. He then found a
       second loaded handgun under the driver’s seat, $8000 in Johnson’s purse, and a large amount
       of heroin in a backpack in the trunk.
¶ 20       In ruling on the motions to suppress, the trial court noted that it had to decide three possible
       issues: (1) whether the original stop was valid; (2) if so, whether there was an unjustified
       prolonged detention; and (3) if the detention was lawful, whether the dog indicated that there
       was an odor of narcotics coming from the vehicle such that there was probable cause for the
       search.
¶ 21       As for the original stop, the trial court found that it was a very close call. Nonetheless, it
       ruled that there was a valid basis to stop the Impala for following too closely.
¶ 22       Turning to whether the detention was unnecessarily prolonged, the trial court first noted
       that, before writing the warning, Sergeant Hain had ascertained from the records check that the
       vehicle was registered in Minnesota. The court further found that, even though Sergeant Hain
       did not give the written warning to Johnson before he exited the squad car, the warning had
       been completed at that point.
¶ 23       The trial court then addressed whether Sergeant Hain was allowed to go back to the car to
       ask Cook for proof of insurance, such that the stop was not improperly prolonged. In answering
       that question, the court ruled that Illinois did not require a vehicle registered in another state to
       comply with Illinois’s liability-insurance requirements. Because Sergeant Hain knew that the
       vehicle was not registered in Illinois, and thus should have known that the liability-insurance
       requirements did not apply, he was acting without proper authority when he returned to the
       vehicle to speak with Cook. Thus, the court concluded that the stop was illegally prolonged,
       and it granted the motions to suppress.
¶ 24       The State filed a certificate of impairment (see Ill. S. Ct. R. 604(a)(1) (eff. Mar. 8, 2016))
       and a timely notice of appeal.




                                                     -4-
¶ 25                                            II. ANALYSIS
¶ 26        On appeal, the State contends that (1) the traffic stop was not unduly prolonged by
       Sergeant Hain’s return to the vehicle to ask Cook for an insurance card because any mistake
       regarding the requirement for proof of insurance was objectively reasonable; (2) Sergeant Hain
       was entitled generally to ask, as part of a traffic stop, for proof of insurance; and (3) Sergeant
       Hain had probable cause, independent of the dog sniff, to search the vehicle.
¶ 27        When reviewing a trial court’s ruling on a motion to suppress evidence, an appellate court
       uses a two-part standard. People v. Colyar, 2013 IL 111835, ¶ 24. We afford great deference to
       the trial court’s factual findings, reversing them only if they are against the manifest weight of
       the evidence. Colyar, 2013 IL 111835, ¶ 24. We review de novo, however, the trial court’s
       ultimate legal ruling on whether suppression is warranted. Colyar, 2013 IL 111835, ¶ 24.
¶ 28        The United States Supreme Court has held that a dog sniff conducted during a lawful traffic
       stop does not violate the fourth amendment. Rodriguez v. United States, 575 U.S. ___, ___,
       135 S. Ct. 1609, 1612 (2015) (citing Illinois v. Caballes, 543 U.S. 405 (2005)). However, a
       traffic stop that exceeds the time needed to handle the matter for which the stop was made
       violates the fourth amendment’s prohibition against unreasonable seizures. Rodriguez, 575
       U.S. at ___, 135 S. Ct. at 1612. Put another way, a seizure justified by a police-observed traffic
       violation becomes unlawful if it is prolonged beyond the time reasonably required to complete
       the mission of issuing a ticket for the violation. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1612
       (citing Caballes, 543 U.S. at 407).
¶ 29        In Rodriguez, the Supreme Court addressed the issue of whether a dog sniff during a traffic
       stop, absent reasonable suspicion, unreasonably prolonged the time to complete the purpose of
       the stop. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. In answering that question, the Court
       noted that the tolerable duration of a police inquiry in the traffic-stop context depends on the
       dual needs of addressing the traffic violation that justified the stop and attending to related
       safety concerns. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. Because addressing the traffic
       violation is the overall purpose of the stop, authority for the stop ends when tasks tied to the
       traffic violation are, or reasonably should be, complete. Rodriguez, 575 U.S. at ___, 135 S. Ct.
       at 1614.
¶ 30        Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary
       inquiries incident to a traffic stop. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. Typically,
       such inquiries involve checking the driver’s license, determining whether there are any
       outstanding warrants, and inspecting the vehicle’s registration and proof of insurance.
       Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. Such checks serve the same objective of the
       traffic code: the safe and responsible operation of a vehicle. Rodriguez, 575 U.S. at ___, 135 S.
       Ct. at 1615.
¶ 31        A dog sniff, however, is a measure aimed at detecting evidence of crime. Rodriguez, 575
       U.S. at ___, 135 S. Ct. at 1615. Accordingly, it is not an ordinary incident of a traffic stop.
       Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. Thus, a dog sniff is not fairly characterized as
       part of the officer’s traffic mission. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615.
¶ 32        In rejecting the government’s contention that an officer may incrementally prolong a
       traffic stop to conduct a dog sniff so long as the overall duration of the stop remains
       comparatively reasonable, the Court reiterated that a traffic stop that is prolonged beyond the
       time reasonably required to complete the mission of the stop is unlawful. Rodriguez, 575 U.S.
       at ___, 135 S. Ct. at 1616. Thus, the critical question is not whether the dog sniff occurs before

                                                   -5-
       or after the officer issues the ticket, but whether conducting the dog sniff prolonged the stop.
       Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1616.
¶ 33       In this appeal, the dispositive issue is whether the mission of the traffic stop had been
       completed such that the dog sniff unduly prolonged the stop, in violation of the fourth
       amendment. It did.
¶ 34       The mission of the traffic stop was completed when Sergeant Hain finished the written
       warning. As the State concedes, because Illinois law did not require Johnson to provide proof
       of insurance, as her vehicle was properly registered in Minnesota (see 625 ILCS
       5/3-402(B)(2)(a), 3-707 (West 2014)), Sergeant Hain mistakenly believed that he was
       authorized to return to the vehicle to ask Cook for proof of insurance. That unjustified return to
       the vehicle unduly prolonged the traffic stop.
¶ 35       The State maintains, however, relying on Heien v. North Carolina, 574 U.S. ___, 135 S.
       Ct. 530 (2014), that, because the mistake of law was objectively reasonable, it did not
       unreasonably prolong the traffic stop. We disagree.
¶ 36       In Heien, the Supreme Court addressed the issue of whether a seizure of a vehicle via a
       traffic stop is rendered unreasonable when the officer stops the vehicle based on a mistaken
       understanding of the law. Heien, 574 U.S. at ___, 135 S. Ct. at 534. In resolving that issue, the
       Court, acknowledging that the ultimate touchstone of the fourth amendment is reasonableness,
       recognized that reasonableness does not require perfection. Heien, 574 U.S. at ___, 135 S. Ct.
       at 536. As such, the fourth amendment allows for some mistakes by law enforcement. Heien,
       574 U.S. at ___, 135 S. Ct. at 536. Those include mistakes of law. Heien, 574 U.S. at ___, 135
       S. Ct. at 536-40.
¶ 37       In so holding, the Court emphasized that only objectively reasonable mistakes of law will
       be tolerated. Heien, 574 U.S. at ___, 135 S. Ct. at 539. Thus, an officer can gain no
       fourth-amendment advantage through a sloppy study of the law that he is duty-bound to
       enforce. Heien, 574 U.S. at ___, 135 S. Ct. at 539-40.
¶ 38       In holding that the officer in Heien made a reasonable mistake in believing that a vehicle
       was required to have two working brake lights, the Court noted that the applicable statute was
       reasonably subject to more than one interpretation and, moreover, had never been construed by
       any North Carolina Appellate Court. Heien, 574 U.S. at ___, 135 S. Ct. at 540.
¶ 39       Applying Heien here, we conclude that Sergeant Hain’s mistaken belief that Illinois’s
       liability-insurance requirements applied to a vehicle registered in Minnesota was not
       objectively reasonable. That is so for the following reasons.
¶ 40       First, section 3-707(a) of the Illinois Vehicle Code (Vehicle Code) provides, in pertinent
       part, that no person shall operate a motor vehicle unless it is covered by a liability insurance
       policy. 625 ILCS 5/3-707(a) (West 2014). However, section 3-707 adds that only an operator
       of a motor vehicle subject to registration under the Vehicle Code is subject to a penalty under
       section 3-707. Further, section 3-402(B)(2)(a) of the Vehicle Code provides, in relevant part,
       that vehicles subject to registration under the Vehicle Code do not include any vehicle operated
       interstate and properly registered in another state. 625 ILCS 5/3-402(B)(2)(a) (West 2014).
       When read together, those provisions unambiguously provide that a vehicle properly registered
       in Minnesota need not comply with the liability-insurance requirements of the Vehicle Code.
       Thus, Sergeant Hain, who had ascertained that the vehicle was properly registered in



                                                   -6-
       Minnesota, was not reasonable in his mistaken belief that Johnson needed to provide proof of
       insurance.
¶ 41        Moreover, an appellate court had previously held that section 3-707 did not apply to a
       vehicle properly registered in another state. See People v. Benton, 322 Ill. App. 3d 958, 960-61
       (2001). In doing so, the court held that sections 3-402(B)(2)(a) and 3-707, when read together,
       unambiguously excepted from the liability-insurance requirements those vehicles properly
       registered outside of Illinois. Benton, 322 Ill. App. 3d at 960-61. Because there was a prior
       appellate court decision that definitively held that a vehicle registered in another state did not
       have to comply with the liability-insurance requirements of the Vehicle Code, Sergeant Hain’s
       contrary belief was not reasonable within the meaning of Heien.
¶ 42        Because the law unambiguously did not require Johnson to provide proof of insurance,
       Sergeant Hain’s return to the vehicle to ask Cook for an insurance card did not promote any
       proper purpose for the stop. Thus, it did not justify the continued detention of the vehicle.
¶ 43        Nor was the delay justified by the general authority during a traffic stop to request proof of
       insurance. Although an officer is generally entitled, as an ordinary incident of a traffic stop, to
       request proof of insurance (see Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615), it is not
       reasonable to do so where, as here, the officer knows or should know that proof of insurance is
       not required.
¶ 44        Because Sergeant Hain unduly prolonged the traffic stop when he returned to the vehicle to
       ask Cook for proof of insurance, the evidence gathered thereafter—including Cook’s version
       of the travel itinerary, the cannabis flakes seen on Cook, the additional indicia of Cook’s and
       Paddy’s nervousness, and the positive dog alert—was obtained in violation of the fourth
       amendment.
¶ 45        Finally, there was no probable cause, independent of the dog sniff, to search the vehicle. As
       discussed, the evidence gathered when Sergeant Hain returned to the vehicle was inadmissible,
       as it was gathered as part of an unlawful detention. Thus, the only facts relevant to the issue of
       whether there was probable cause to search the vehicle were those about the travel route and
       Cook’s and Paddy’s apparent nervousness during Sergeant Hain’s initial presence at the
       vehicle. The trial court found, however, that Sergeant Hain’s testimony that Minnesota is a
       destination for, and Chicago a source of, illegal drugs was alone insufficient to establish that
       assertion. We agree. There needed to be some additional evidence to establish that Minnesota
       and Chicago are endpoints of drug trafficking. Moreover, even if they are, merely driving to
       and from those locations would not alone support probable cause to search for evidence of drug
       trafficking. Nor was the abbreviated stay in Chicago particularly suspicious in light of
       Johnson’s explanation that they had driven to Chicago to drop off a friend whose family
       member had died. As for Cook’s and Paddy’s apparent nervousness, that alone was insufficient
       to provide probable cause to search the vehicle. In sum, the evidence was insufficient to
       provide probable cause to believe that the trio was involved in drug trafficking. Thus, there was
       no probable cause independent of the dog sniff to justify the search of the vehicle.

¶ 46                                      III. CONCLUSION
¶ 47      For the reasons stated, we affirm the judgments of the circuit court of Kane County.

¶ 48      Affirmed.


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