                                    2016 IL App (4th) 140469                     FILED
                                                                                   June 8, 2016
                                          NO. 4-14-0469                           Carla Bender
                                                                              4th District Appellate
                                                                                     Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,            )   Appeal from
         Plaintiff-Appellee,                    )   Circuit Court of
         v.                                     )   Champaign County
DEJERMAINE J. PETTIS,                           )   No. 13CF1280
         Defendant-Appellant.                   )
                                                )   Honorable
                                                )   Harry E. Clem,
                                                )   Judge Presiding.
______________________________________________________________________________

               JUSTICE POPE delivered the judgment of the court, with opinion.
               Presiding Justice Knecht and Justice Holder White concurred in the judgment and
               opinion.

                                            OPINION

¶1             On April 16, 2014, defendant, Dejermaine J. Pettis, was convicted of unlawful

possession of a controlled substance with intent to deliver (720 ILCS 570/401(d) (West 2012))

after a stipulated bench trial. Defendant appeals, arguing the trial court erred by denying his

motion to suppress evidence. We affirm.

¶2                                      I. BACKGROUND

¶3             On August 6, 2013, the State charged defendant by information with one count of

unlawful possession with intent to deliver a controlled substance, a Class 2 felony (720 ILCS

570/401(d) (West 2012)). In October 2013, defendant filed a motion to suppress evidence

discovered during a traffic stop on August 5, 2013. On February 6, 2014, defendant filed an

amended motion to suppress.
¶4             On February 7, 2014, the trial court held a hearing on defendant's motion to

suppress. Champaign police officer Jordan Hagemann testified he was part of a two-man patrol

unit with Officer Chris Aikman on the date at issue. According to Hagemann, the car in which

defendant was a passenger pulled out in front of the officers' vehicle. The officers ran the

vehicle's license plate and discovered it was suspended for a mandatory insurance violation. The

vehicle turned into the Country Fair Shopping Center, and the officers initiated a stop.

Defendant was sitting in the rear passenger side of the car, Steven Johnson was driving, and

Ashley Johnson was in the front passenger seat.

¶5             Officer Hagemann took the driver's information, returned to the patrol, and

discovered Steven's driver's license had been revoked. The officers also ran a check on both

passengers, which came back negative for outstanding warrants.

¶6             Because the driver was stuttering and mumbling while talking, fumbling with his

wallet, visibly shaking, and had a recent drug charge, Officer Hagemann asked a police officer

with a police dog to come to the scene. While Hagemann was working on his traffic citations for

the driver, the police dog arrived and did an open air search of the vehicle with the passengers,

including defendant, inside.

¶7             The police dog provided a positive alert, indicating the presence of a controlled

substance. The officers then took defendant out of the car for a pat-down weapon search.

Defendant consented to a search of his person. Based on defendant's consent, Hagemann

searched defendant and did not find any contraband or weapons. Hagemann stated he did not

consider defendant armed and dangerous at that time. However, Hagemann testified defendant

was handcuffed because the drug dog alerted on the vehicle. Defendant was placed in the

backseat of one of the police vehicles.




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¶8             The police then removed Steven Johnson from the vehicle. Steven was

handcuffed, placed under arrest, and searched before being placed in the back of a police vehicle.

The officers did not find any contraband on Steven. The police then removed Ashley Johnson

from the vehicle. A female officer searched Ashley, handcuffed her, and placed her in the back

of a squad car. Once again, no contraband was found on her.

¶9             The police officers then searched the vehicle. They found a coat, several needles,

a burnt spoon, lighters, and other things of that nature. The coat was in the front passenger seat.

Some of the needles were located in the trunk and some were underneath the front passenger

seat.

¶ 10           After the vehicle was searched, Hagemann testified defendant was removed from

the police car and searched again by Officer Aikman because of a statement by the driver that

defendant had concealed something in his buttocks. Once again, no weapons or contraband were

found. Defendant was then kept outside the vehicle. Hagemann also testified the female

passenger told another officer defendant had concealed something in his buttocks. Defendant

was then searched again.

¶ 11           During this third search, Officer Aikman lowered defendant's pants, but not the

shorts he had under the pants, for the search. Hagemann testified Aikman said he felt the "knot

of a [Baggie]" between defendant's buttocks. Aikman was able to retrieve the object. The police

dog never sniffed defendant. The Champaign police department's policy did not allow the police

dog to smell suspects.

¶ 12           On cross-examination by the State, Officer Hagemann testified defendant never

withdrew or revoked his consent for the officers to search his person. According to Hagemann,

prior to the second and third searches, Ashley and Steven both stated defendant had concealed




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something in his buttocks. Steven told Hagemann defendant had "his hand up his ass." Ashley

told an officer defendant had asked her if the police dog would be able to smell whatever he

placed between his buttocks. According to Hagemann's testimony, the needles and the burnt

spoon found in the suspect vehicle were indicative of drug use.

¶ 13           Officer Aikman testified he and Officer Hagemann pulled over the suspect

vehicle around 6 p.m. Aikman approached the passenger side of the vehicle and spoke with

Ashley Johnson and defendant, obtaining their names and dates of birth. He did not speak with

the driver. He returned to the squad car and found neither Ashley nor defendant had any

outstanding warrants. He testified the driver had a prior drug offense. The officers called for

another officer with a police dog to come to the scene and conduct an open air search of the

vehicle. The police dog provided a positive alert on the vehicle.

¶ 14           The officers then removed defendant from the vehicle. The officers asked

defendant if they could pat him down for weapons. Defendant told the officers they could search

him, which the officers did. The officers found no contraband on defendant. Aikman testified

he did not think defendant was armed and dangerous at that time.

¶ 15           The officers then removed the driver from the vehicle. According to Aikman,

defendant was not handcuffed at that point and was standing in front of the squad car. The

officers arrested Steven Johnson for driving with a revoked driver's license. The officers

searched Steven and secured him in a squad car. The officers then removed Ashley Johnson

from the vehicle. Aikman testified he spoke with Ashley while Hagemann searched the vehicle.

¶ 16           Ashley told Aikman she observed defendant concealing something in his buttocks

when the traffic stop was initiated. Defendant also asked Ashley and Steven whether they

thought the police dog would be able to smell the item he was concealing. Aikman testified he




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then searched defendant. Aikman did not find any weapons or contraband on defendant. This

was Aikman's first search of defendant.

¶ 17           Aikman testified Hagemann then found contraband in the vehicle during his

search, including hypodermic needles and a burnt spoon. No one claimed ownership of these

items. Ashley Johnson was the registered owner of the vehicle.

¶ 18           After learning Hagemann found the contraband in the vehicle, Aikman searched

defendant a third time. This time he pulled defendant's jeans down below his knees. Defendant

had on gym shorts under his jeans. Officer Aikman checked defendant's buttocks area. Aikman

testified he "bladed his hand and slid it," presumably between defendant's buttocks. Aikman

testified he felt the knot of a Baggie as he slid his bladed hand between defendant's buttocks.

Officer Aikman then secured the knot of the Baggie with his fingertips over defendant's shorts.

He was able to loosen the Baggie, and it fell down defendant's pant leg.

¶ 19           After defendant rested, the State presented no evidence.

¶ 20           On March 12, 2014, the trial court issued an order denying defendant's amended

motion to suppress. On April 16, 2014, the court held a stipulated bench trial. Based on the

evidence presented at the hearing on the motion to suppress, the court found defendant guilty of

unlawful possession with intent to deliver. On May 28, 2014, the trial court sentenced defendant

to 48 months' probation.

¶ 21           This appeal followed.

¶ 22                                      II. ANALYSIS

¶ 23           When we review a ruling on a motion to suppress evidence, we apply the two-part

standard of review adopted by the Supreme Court in Ornelas v. United States, 517 U.S. 690, 699

(1996). People v. Harris, 228 Ill. 2d 222, 230, 886 N.E.2d 947, 953 (2008). According to our




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supreme court, a trial court's findings of historical facts may only be rejected by the reviewing

court if they are against the manifest weight of the evidence. Id. at 230, 886 N.E.2d at 953-54.

However, we can assess the established facts in relation to the issues and make our own

determination as to what relief, if any, should be granted. Id. at 230, 886 N.E.2d at 954. As a

result, we review the trial court's ultimate decision whether to grant or deny a suppression

motion de novo. Id.

¶ 24           In reviewing a trial court's decision on a motion to suppress, it is important to

remember the proper burden of proof on suppression issues before the trial court. Our supreme

court has stated:

               "The defendant bears the burden of proof at a hearing on a motion

               to suppress. [Citations.] A defendant must make a prima facie

               case that the evidence was obtained by an illegal search or seizure.

               [Citation.] If a defendant makes a prima facie case, the State has

               the burden of going forward with evidence to counter the

               defendant's prima facie case. [Citation.] However, the ultimate

               burden of proof remains with the defendant." People v. Gipson,

               203 Ill. 2d 298, 306-07, 786 N.E.2d 540, 545 (2003).

¶ 25           An appellant forfeits any arguments he failed to make in the trial court.

According to our supreme court, by failing to raise arguments in the trial court, a defendant

deprives the State of the opportunity to challenge the arguments with evidence of its own.

People v. Hughes, 2015 IL 117242, ¶ 46. Failing to make arguments in the trial court also

deprives a trial court of the opportunity to decide the issue based on that argument. Further, the




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failure to make an argument deprives the appellate court of an adequate record related to the

argument. Id.

¶ 26                      A. Scope of Defendant's Detention and Search

¶ 27            Defendant concedes the initial stop of the vehicle was lawful. In addition,

defendant makes no argument the police violated his rights by asking for his identification.

However, according to defendant, after the officers determined he had no outstanding warrants

or criminal history, defendant should have been free to leave because the police officers did not

have any reasonable suspicion defendant was engaged in or about to engage in criminal

behavior. However, defendant did not make this argument in his motions to suppress or in his

oral argument to the trial court at the suppression hearing. Instead, defendant's motions focused

on the police officers' actions after the officers completed defendant's consensual search. As a

result, pursuant to Hughes, defendant has forfeited any argument he should have been released

prior to the completion of his consensual search.

¶ 28            Defendant also argues he was illegally detained after he was searched two times

without the police finding any contraband on his person. According to defendant, after he was

searched twice, any reasonable suspicion he was engaged in criminal wrongdoing should have

dissipated, and defendant should have been free to leave. The record does establish defendant

was not free to leave after the police dog alerted on the vehicle. However, defendant provides no

argument why the police officers were required to release defendant simply because they found

no contraband on his person during the first two searches. After all, the police dog made a

positive alert on the vehicle with defendant inside.

¶ 29            After the dog's positive alert, defendant could be detained for a reasonable amount

of time while the police conducted their drug investigation. Police officers may extend a traffic




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stop without violating an occupant's constitutional rights as long as the extension is based on

evidence leading to a reasonable suspicion of other criminal activity discovered before the

original mission of the stop is completed. Rodriguez v. United States, 575 U.S. ___, ___, 135 S.

Ct. 1609, 1614-16 (2015). In this case, the State presented sufficient information to show the

continued detention in this case was appropriate based on evidence discovered during the

mission of the original stop. The evidence in question was the police dog's positive alert on the

suspect vehicle with defendant inside.

¶ 30           A dog sniff conducted during a lawful traffic stop does not violate the fourth

amendment as long as it is done within the time reasonably required to complete the mission of

the initial traffic stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). Defendant does not argue

the police dog's open air search was not done within the time reasonably required to complete the

purpose of the stop in this case.

¶ 31           In addition, defendant's initial consensual search did not dissipate the reasonable

suspicion defendant was engaged in criminal activity. While the police did not believe defendant

had the drugs on his person after that search, the officers had reasonable suspicion contraband

was in the vehicle or in the possession of Steven or Ashley Johnson. The police did not violate

defendant's rights by continuing to detain him after this consensual search until they could search

the vehicle.

¶ 32           After the officers conducted the consensual search, they searched Steven and

Ashley, who were also in the car when the police dog provided the positive alert. The officers

found no contraband on either Steven or Ashley. According to Officer Aikman's testimony,

Ashley told Aikman defendant concealed something in his buttocks and asked her and Steven if




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the police dog would be able to smell the concealed item. According to Aikman, at that point, he

personally searched defendant for the first time. This was defendant's second search.

¶ 33            A police officer may search a suspect without a warrant if probable cause is

present and exigent circumstances make it impracticable to obtain a warrant. People v. Williams,

2013 IL App (4th) 110857, ¶ 17, 990 N.E.2d 916. This court recently noted, "probable cause is a

'fluid concept' that turns on 'the assessment of probabilities in particular factual contexts.' "

Id. ¶ 21 (quoting Florida v. Harris, 568 U.S. ____, _____, 133 S. Ct. 1050, 1056 (2013)). In

Harris, the Supreme Court stated:

                        "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. [Citations.] The test for probable cause is not

                reducible to 'precise definition or quantification.' [Citation.]

                '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.' [Citation.] All we have required is the

                kind of 'fair probability' on which 'reasonable and prudent [people,]

                not legal technicians, act.' [Citation.]" Harris, 568 U.S. at ___,

                133 S. Ct. at 1055.

¶ 34            In 2000, this court held "that a police canine alert of a car's exterior indicating the

presence of a controlled substance within the car does not, without more, provide the police with

probable cause to search the persons of the car's occupants." People v. Fondia, 317 Ill. App. 3d

966, 969, 740 N.E.2d 839, 841 (2000). However, this court stressed its "holding is limited to the




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facts of record and turns on the absence of any indicia of suspicion particular to defendant.

Without more, the search of defendant's person was not justified." (Emphasis in original.) Id. at

972, 740 N.E.2d at 844. The instant case is distinguishable from Fondia because the searches in

this case were not based simply on the police canine's positive alert. The other individuals in the

vehicle made statements regarding defendant hiding something between his buttocks or in his

anus. Steven told an officer defendant had "his hand up his ass." Further, Ashley told an officer

defendant had concealed something in his buttocks and had asked her if the police dog would be

able to smell whatever he placed between his buttocks.

¶ 35           Since this court's decision in Fondia, the Second District specifically rejected this

court's approach. People v. Neuberger, 2011 IL App (2d) 100379, ¶ 10, 959 N.E.2d 195. The

Second District held a police dog's positive alert on a vehicle may provide the police with

probable cause to search the vehicle and a passenger in the vehicle. Id. ¶¶ 9-10. In addition, this

court has stated the smell of cannabis in a vehicle by a police officer can justify the search of a

passenger in that vehicle. Williams, 2013 IL App (4th) 110857, ¶ 34, 990 N.E.2d 916. Because

the facts in this case are distinguishable from Fondia, we need not determine whether this court's

holding in Fondia is still good law.

¶ 36           The second search, which was performed by Officer Aikman, was proper.

Aikman clearly had probable cause justifying the search based on the police dog's positive alert

on the vehicle with defendant inside and Ashley's statement defendant had concealed something

in his buttocks.

¶ 37           The third search of defendant, which also was performed by Officer Aikman, was

also proper. In addition to the information justifying the second search, the police officers found

contraband indicative of drug use in the car, some of which was within reach of where defendant




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was sitting in the vehicle. Further, Steven Johnson, like Ashley Johnson, told the officers

defendant had concealed something between his buttocks. As a result, neither of these searches

violated defendant's constitutional rights.

¶ 38                                    B. De Facto Arrest

¶ 39           Defendant makes an alternative argument the police officers violated his fourth

amendment rights when the officers "without probable cause, handcuffed and de facto arrested

[defendant] during a traffic stop." Defendant argues the investigatory Terry stop (Terry v. Ohio,

392 U.S. 1 (1968)) ended and a de facto arrest occurred when the police officers handcuffed

defendant and placed him in a squad car. Quoting People v. Melock, 149 Ill. 2d 423, 436, 599

N.E.2d 941, 946 (1992), defendant argues, "a person has been arrested when 'his freedom of

movement has been restrained by means of physical force or a show of authority.' " According

to defendant, because the police officers had no reasonable grounds or probable cause to believe

defendant was committing or had committed a crime, defendant's arrest was unlawful and the

evidence found after his arrest should have been suppressed.

¶ 40           However, defendant forfeited this argument pursuant to Hughes, 2015 IL 117242,

¶ 46. Defendant did not make this argument in the trial court. In fact, defendant made the

opposite argument below, i.e., defendant had not been arrested when he was searched for the

third time. Because defendant forfeited this issue, we need not discuss it further. Had defendant

made this argument in the trial court, the State likely would have presented additional evidence

showing why the officers felt it was necessary to handcuff defendant.

¶ 41                                   C. Scope of Search

¶ 42           Defendant next argues Officer Aikman exceeded the scope of defendant's consent

to search when he searched defendant two times after the consensual search and when Aikman




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bladed his hand and put it between defendant's buttocks during the third search. The parties

agree the initial search in this case was consensual. However, defendant argues in his brief:

                       "Because a reasonable person would not have understood

               [defendant] to have consented to a second or third search nor

               would he have been expected to have consented to a bladed hand

               being inserted between his buttock cheeks, the officers exceeded

               the consent given by [defendant]. The search, therefore, was

               subject to Fourth Amendment protections and required that the

               officers had probable cause to search. Additionally, any evidence

               that the officers collected as a result of this unconstitutional search

               is inadmissible and should have been suppressed. [Citation.]

               Therefore the trial court erred when it denied [defendant's] motion

               to suppress. This court should reverse the trial court's ruling and

               remand this case for a new trial."

The problem with defendant's argument is the court did not find the second and third searches

were consensual. Instead, the court found the searches were reasonable based on the police dog's

alert and the other information available to the officers.

¶ 43           Because we have already found the police officers had probable cause to conduct

the second and third searches of defendant, we need not address defendant's argument any

further.

¶ 44                                III. CONCLUSION




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¶ 45           For the reasons stated, we affirm the trial court's denial of defendant's amended

motion to suppress. As part of our judgment, we award the State it's $75 statutory assessment

against defendant as costs of this appeal.

¶ 46           Affirmed.




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