                                 No. 3–05–0420
______________________________________________________________________________
Filed February 10, 2010

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                                         THIRD DISTRICT

                                             A.D., 2010


THE PEOPLE OF THE STATE OF                     )       Appeal from the Circuit Court
ILLINOIS,                                      )       of the Fourteenth Judicial Circuit,
                                               )       Henry County, Illinois
       Plaintiff-Appellee,                     )
                                               )
       v.                                      )       No. 04–CF–51
                                               )
ANDRES ROA,                                    )       Honorable
                                               )       Larry S. Vandersnick,
       Defendant-Appellant.                    )       Judge Presiding.

______________________________________________________________________________

       JUSTICE WRIGHT delivered the opinion of the court:

______________________________________________________________________________

       Defendant Andres Roa appeals from his conviction for violation of section 401(a)(2)(A)

of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2004)). On appeal,

defendant raised the single issue of whether the trial court improperly denied his motion to

suppress evidence seized during a consensual search of defendant’s vehicle. We affirmed the

decision of the trial court on October 31, 2007. Defendant appealed to our supreme court which,

in light of the postopinion case of People v. Cosby, 231 Ill. 2d 262 (2008), ordered this court to

vacate its earlier judgment and reconsider its decision to determine if a different result is now

warranted. People v. Roa, 229 Ill. 2d 687 (2008)(order). In light of Cosby, 231 Ill. 2d at 262, we
affirm the trial court’s decision.

                                         BACKGROUND

        Defendant was operating a vehicle he recently purchased when an Illinois state trooper

stopped him for speeding at 71 miles per hour in a posted 65 mile per hour zone on Interstate 80

in Henry County, Illinois. The officer, Sergeant Floyd Blanks, is a certified drug interdiction

instructor and the drug interdiction coordinator for his district. He has been employed by the

State Police for 17 years.

        According to the officer, after stopping defendant for speeding, he approached the car,

advised defendant he was going to issue a written warning for speeding, and asked for

defendant’s license and registration. Blanks stated that defendant fumbled for those documents,

seemed “to exhibit more physical stress than most people do,” and mumbled while staring

straight ahead. Blanks immediately advised defendant he was going to issue a written warning.

At some point during the traffic stop, Blanks asked defendant where he was traveling from and

where he was going. Defendant told Blanks that he was traveling from Colorado to New York.

        Blanks said defendant seemed “to exhibit more physical stress than most people do,

along with a couple of other factors.” Despite being informed that he was going to receive a

warning, defendant remained nervous and, “in this case, that’s why I [Blanks] requested consent

to search the vehicle.” Blanks also noticed a new air freshener and a strong odor of air freshener

emanating from the car, which piqued Blanks’ suspicion.

        According to Blanks, when he returned to his squad car to write a warning ticket, he

knew, “with [defendant’s] nervousness, the odor of air freshener, ***[he] was going to try to

obtain permission to search that vehicle.” Blanks testified, “I knew from my training and



                                                 2
experience that something was amiss, something was wrong, so I requested assistance from

Trooper Clint Thulen.”

       Blanks did issue a written warning for the speeding violation. Once he delivered the

written warning citation, Blanks returned defendant’s license, registration and insurance card.

According to defendant, as the officer started to return to his squad car, the officer said, “Wait a

minute, Andres,” and then asked defendant for permission to conduct a search of defendant’s

car. Defendant consented.

       According to Blanks, the conversation with defendant, before asking for consent, was

slightly longer. The officer recounted that, after issuing a written warning and returning

defendant’s license and insurance card, he asked defendant if everything in the vehicle belonged

to him and whether anyone had asked defendant to transport anything. Defendant responded that

everything in the vehicle belonged to him and no one had asked him to transport anything.

Blanks then asked if there was anything illegal in the vehicle, including any alcohol, weapons, or

drugs. The defendant replied, “no.” Blanks then asked if he could search the vehicle.

Defendant’s response was, “yes.” According to Blanks, if defendant had refused permission to

search his car, Blanks would have allowed him to drive away.

       After obtaining consent, Blanks asked defendant what was in the trunk. Defendant

answered, “antiques,” and offered to show him an antique dealer’s card. At Blanks’ request,

defendant opened the trunk and found it was empty. Blanks felt this was unusual since

defendant had just told him there were antiques in the trunk.

        As requested, Trooper Thulen arrived on the scene during the initial moments of the

search, while Blanks was standing near the trunk of defendant’s car. Together, the officers then



                                                  3
proceeded to the front of the vehicle. Blanks noticed that the air bag area appeared to have been

tampered with or modified. After a 20-minute search, which included using a fiberoptic scope,

the officers discovered a hidden compartment containing cocaine. Later, when the compartment

was disassembled, the troopers found the compartment contained a total of 24.2 pounds of

cocaine. The cocaine was packaged in 11 separate packages.

       Initially, defendant faced three charges based on this evidence. Count I alleged

defendant knowingly brought more than 900 grams of cocaine into the State of Illinois with the

intent to deliver in violation of section 401.1(a) of the Illinois Controlled Substances Act (Act)

(720 ILCS 570/401.1(a) (West 2004)). Count II alleged defendant knowingly possessed with the

intent to deliver more than 15 but less than 100 grams of cocaine in violation of section

401(a)(2)(A) of the Act (720 ILCS 570/401(a)(2)(A) (West 2004)). Finally, count III alleged

that defendant possessed more than 900 grams of cocaine in violation of section 402(a)(2)(D) of

the Act (720 ILCS 570/402(a)(2)(D) (West 2004)).

       Prior to trial, defense counsel filed a motion to suppress the cocaine, alleging the police

expanded a traffic stop into a drug investigation without probable cause. During the hearing on

the motion, the trial court heard testimony from Sergeant Blanks regarding factors he considers

when looking for drug-related activities. According to Blanks, ongoing nervousness is only one

of many factors indicating illegal activity. Blanks explained to the court:

                  “There are a number of things that we are trained to observe, such as

          third-party vehicles, vehicles rented by someone else, the odor of air freshener

          and masking agents in the vehicle, a vehicle that looks lived in, a vehicle with

          numerous energy drinks or coffee cups showing they’ve been driving all night,



                                                     4
            cigarettes and nervousness, and I could go on and on, sir.”

       Trooper Clint Thulen also testified at the suppression hearing. Thulen testified that he

has been employed by the State Police for 14 years as a patrol officer and currently as a canine

handler. When Thulen arrived on the scene of the stop, Blanks was searching defendant’s trunk.

According to Thulen, defendant appeared unusually nervous and exhibited signs of stress.

Defendant seemed unusually uncomfortable, “out of sorts,” and avoided eye contact.

       Following the testimony of defendant, Sergeant Blanks and Trooper Thulen and

arguments of counsel, the trial court denied the motion to suppress, finding Sergeant Blanks’

search was properly based on three grounds. First, the court noted Sergeant Blanks had probable

cause for the initial traffic stop based on speeding. Second, the court found the duration of the

traffic stop was reasonable because Sergeant Blanks did not delay asking for consent to search.

Finally, the judge concluded, based on the totality of the circumstances, Sergeant Blanks had a

reasonable, articulable suspicion that defendant was engaged in criminal conduct.

       Applying a totality-of-the-circumstances approach, the court considered the officer’s

description of the circumstances the officer encountered. Relevant factors included defendant’s

extreme nervousness, mumbling, fumbling, straightforward gaze, abnormal physical stress, and a

new air freshener that piqued the officer’s curiosity and suspicion. The court heavily weighed

Sergeant Blanks’ vast experience in drug interdiction, finding Sergeant Blanks’ training would

give a person in his position a reasonable, articulable suspicion that there was some kind of

criminal activity afoot. Accordingly, the trial court denied defendant’s motion to suppress

evidence.

       Defendant’s first jury trial resulted in a deadlocked jury. Subsequently, the State



                                                  5
dismissed counts I and III of the information and, following a stipulated bench trial on count II

only, the trial judge found defendant guilty of unlawful possession with intent to deliver more

than 15 grams but not more than 100 grams of a controlled substance, in violation of section

401(a)(2)(A) (720 ILCS 570/401(a)(2)(A) (West 2004)). The court sentenced defendant to 15

years’ imprisonment. Following the denial of his posttrial motions, defendant timely appealed

on the ground that his motion to suppress should have been granted.

       This court issued an opinion in this case on October 31, 2007, affirming the decision of

the trial court, and defendant then filed an appeal with our supreme court. On December 31,

2008, the supreme court denied defendant’s leave to appeal, but entered a supervisory order

requiring this court to vacate its prior judgment, in light of a postopinion case of People v.

Cosby, 231 Ill. 2d 262 (2008), and directed this court to “reconsider its judgment*** to

determine if a different result is warranted.” Roa, 229 Ill. 2d 687.

                                            ANALYSIS

       The State, after remand from our supreme court, asserts the police officer’s request for a

consent to search defendant’s vehicle did not constitute a seizure under the fourth amendment

according to the holding in Cosby. Defendant, after remand, contends that defendant did not feel

free to leave when Sergeant Blanks asked for consent to search the vehicle. Consequently,

defendant argues that the conversation following the end of the traffic stop created a second

seizure of defendant. Defendant further contends that this court must now adhere to the view

that a second seizure occurred because this premise was adopted by the author in our earlier

decision and then mirrored in Justice McDade’s dissent to that decision.

       We begin with defendant’s contention that we are bound by the premise that a second



                                                  6
seizure occurred in this case when the officer requested consent to search defendant’s vehicle.

This argument ignores that our supreme court issued a supervisory order with directions to this

court to reconsider our judgment in light of the most recent pronouncement of law from our

supreme court contained in Cosby. Cosby, 231 Ill. 2d 262.

       This court’s previous decision, now under review, was based, in part, upon our supreme

court’s decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), that focused on the scope of the

stop. The Gonzalez court originally pronounced a two-prong approach for determining whether

a lawful traffic stop could become constitutionally impermissible by unduly prolonging the

detention or by fundamentally altering the nature of the stop. Gonzalez, 204 Ill. 2d at 235. The

Cosby court noted that the decision in Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S.

Ct. 1465 (2005), struck down the approach that focused on the alteration of the fundamental

nature of the stop previously employed by our supreme court. See Cosby, 231 Ill. 2d at 276,

citing People v. Harris, 228 Ill. 2d 222, 240 (2008). In Harris, our supreme court held that

Gonzalez, 204 Ill. 2d at 220, has been “unequivocally overruled” by the Supreme Court's

subsequent decision in Muehler. Harris, 228 Ill. 2d at 240.

       Although the duration prong clearly survives based upon Illinois v. Caballes, 543 U.S.

405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), the alteration of the scope of the stop is no longer

an appropriate consideration. Harris, 228 Ill. 2d at 240. Based upon the changes in the law

since our first opinion, we reject defendant’s contention that we are bound by our initial holding

regarding a second seizure, which was based on case law that has since been interpreted and

modified by other higher courts.

       Generally, the review of a trial court’s ruling on a motion to suppress involves a two-part



                                                 7
standard of review which presents mixed questions of law and fact. Cosby, 231 Ill. 2d at 271;

People v. Luedemann, 222 Ill. 2d 530, 542 (2006)). The reviewing court first examines whether

the trial court’s factual findings are against the manifest weight of the evidence. Luedemann,

222 Ill. 2d at 542. Second, we review de novo the trial court's ultimate ruling as to whether

suppression is warranted. Harris, 228 Ill. 2d at 230.

       As directed by our supreme court, we have vacated our prior judgment in this case and

now must determine if a different outcome is warranted based on Cosby. The Cosby court

analyzed the question of whether a consent to search after a traffic stop becomes a seizure by

applying the principles set forth in its earlier case of People v. Brownlee, 186 Ill. 2d 501 (1999)

and the United State’s Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544,

64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Cosby, 231 Ill. 2d at 276-77. The Cosby case

involved two consolidated cases for purposes of the appeal to the supreme court: People v.

Cosby, No. 100681, and People v. Mendoza, No. 102584. In both cases, our supreme court

determined that none of the Mendenhall factors were present and, therefore, fourth amendment

seizures of the defendants did not occur. Cosby, 231 Ill. 2d at 282-88.

       Following the decision in Cosby, the mandates of Mendenhall are even clearer and the

holding of Brownlee remains intact. In Brownlee, our supreme court acknowledged that an

officer is always free to request permission to search. Brownlee, 186 Ill. 2d at 515, citing Ohio

v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). However, our supreme

court noted that a person is seized when, in view of all the facts and circumstances, he would not

feel free to leave. Brownlee, 186 Ill. 2d at 517.

       Questioning of a seized individual alone may not unduly prolong a stop or constitute an



                                                    8
additional seizure within the meaning of the fourth amendment. Harris, 228 Ill. 2d at 243, citing

Muehler, 544 U.S. at 101, 161 L. Ed. 2d at 309, 125 S. Ct. at 1471. Thus, we must apply the

Mendenhall factors to determine if the questioning by Blanks, after issuing the warning ticket,

would cause a reasonable person to feel he was not free to leave. Harris, 228 Ill. 2d at 243. The

Mendenhall factors include: (1) whether there was a threatening presence by several officers; (2)

whether the officer displayed a weapon; (3) whether there was some physical touching by the

officer; and (4) whether the language or tone of voice used by the officer indicated that

compliance with the officer’s request was compelled. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d

509, 100 S. Ct. at 1877.1

       First, Sergeant Blanks was the only officer present at the stop when the questioning

regarding consent to search took place. Second, the officer did not display his weapon in a

threatening manner. Third, there was no indication that the officer physically touched defendant.

Finally, in reviewing the record, we find there is nothing to suggest that the officer used forceful

language or an intimidating tone when communicating with defendant and requesting

defendant’s permission to search his vehicle. Accordingly, in the absence of all of the

Mendenhall factors as applied to the facts in the instant case, we find that defendant was not

seized for purposes of the fourth amendment. See Cosby, 231 Ill. 2d at 287-88.

       Next, we consider whether the four questions posed by Sergeant Blanks in this case

unduly prolonged the encounter in violation of the fourth amendment. The record shows Blanks,



       1
        In this case, the State concedes that the traffic stop for speeding ended with the delivery
of the written warning citation. However, this concession is no longer relevant because the
nature of the scope of the stop is no longer a valid consideration after the Harris decision.
Harris, 228 Ill. 2d at 244.


                                                  9
after issuing the warning and returning the paperwork to defendant, immediately posed three

questions that were short, succinct, and formulated to produce “yes” or “no” responses. The

fourth and final question from the officer produced defendant’s voluntary consent for the officer

to conduct a search. These questions were similar in nature to the questions asked by the

officers in Cosby. Therefore, we conclude the inquiries by Blanks did not unfairly convert this

lawful stop into an unconstitutional seizure of defendant or his vehicle.

        There are three tiers of lawful police-civilian encounters: (1) arrests supported by

probable cause; (2) brief investigatory detentions, justified by a reasonable, articulable suspicion

of criminal activity (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); and (3)

consensual encounters involving no coercion or detentions that do not implicate fourth

amendment interests. Luedemann, 222 Ill. 2d at 544. Here, the initial traffic stop was based

upon probable cause to believe defendant was speeding.

        Originally, in his special concurring opinion, Presiding Justice Lytton concluded the

police-citizen interaction after the officer delivered the written warning qualified as a third-tier

“consensual encounter” under Luedemann, 222 Ill. 2d at 544. People v. Roa, 377 Ill. App. 3d

190, 205 (2007)(Lytton, P.J., concurring). The decision in Cosby reveals Justice Lytton was

correct. In light of Cosby, we are now in agreement that Blanks’ request for consent to search

was constitutionally permissible under the fourth amendment as a third tier consensual

encounter.

        While defendant admits his decision to give Sergeant Blanks his consent to search was

voluntary, on remand defendant alleges Blanks waited several additional minutes for Officer

Thulen to arrive. Defendant also argues that his consent to search was limited in scope. The



                                                  10
record reflects that Sergeant Blanks testified defendant consented to his search of the “vehicle”

and that he began the search before the arrival of Officer Thulen.

        The conflict in the testimony required the trial court to make a credibility determination

regarding the duration of the stop and the scope of the consent. Matters of credibility are for the

trial court to decide. This court should not rule on such matters because the trial court was in a

position to observe the witnesses, assess their demeanor, and make credibility judgments based

on a firsthand encounter with the witnesses. People v. Hornsby, 277 Ill. App. 3d 227, 230-31

(1995). Here, the record sustains the trial court's finding that Blanks was a credible witness. We

conclude the court’s findings were not against the manifest weight of the evidence simply

because the circumstances that triggered the officer’s suspicion involved multiple layers of

conduct which, standing alone, could be considered as innocent, law-abiding behavior.

        As stated in our prior opinion, effective and efficient interstate drug couriers can

successfully avoid apprehension by camouflaging their illegal activity with something as

innocuous as an air freshener. Meaningless minutiae that might go unnoticed by the untrained

person may become a significant factor to an experienced drug interdiction officer considering

the totality of the circumstances attendant to the traveler at hand. The trial judge found the

officer’s testimony credible and the basis of his suspicions justified.

        Pursuant to the directive of our supreme court, we vacate our previous judgment in this

case. Additionally, based upon our de novo review of the facts as applied to the most recent case

law, we hold the motion to suppress contraband was properly denied because defendant’s

interaction with Officer Blanks, after receiving the written warning, was voluntary and

consensual. Accordingly, we affirm the circuit court’s decision to deny defendant’s motion to



                                                  11
suppress evidence seized from his vehicle.



                                         CONCLUSION

       The judgment entered in this case on October 31, 2007, has been vacated. Additionally,

after reconsidering our previous decision in light of Cosby as directed by the supervisory order

of our supreme court, we affirm the order of the circuit court of Henry County denying

defendant’s motion to suppress the evidence obtained from the consensual search .

       Affirmed.

       LYTTON, J., concurs.



                                         No. 3--05--0420

_____________________________________________________________________________

Filed February 10, 2010–CORRECTION

                                              IN THE



                              APPELLATE COURT OF ILLINOIS



                                       THIRD DISTRICT



                                             A.D., 2010



THE PEOPLE OF THE STATE OF                    )          Appeal from the Circuit Court



                                                  -12-
ILLINOIS,                                     )          of the Fourteenth Judicial Circuit, Henry

                                              )          County, Illinois,

       Plaintiff-Appellee,                    )

                                              )

       v.                                     )          No. 04--CF--51

                                              )

ANDRES ROA,                                   )          Honorable

                                              )          Larry S. Vandersnick,

       Defendant-Appellant.                   )          Judge, Presiding.

______________________________________________________________________________

       JUSTICE McDADE, dissenting:

____________________________________________________________________________

       The majority affirms the drug conviction of Andres Roa, rejecting his challenge to the

denial of his motion to suppress evidence on the grounds that the interaction following the return

of Roa’s documents was “consensual.” For the reasons that follow, I believe the conviction

should be vacated, and the defendant should have a new trial. I, therefore, dissent from the

decision affirming his conviction.

                       FACTUAL AND PROCEDURAL BACKGROUND

       In February 2004, Andres Roa was driving on Interstate 80 in Henry County when he

was stopped by Sergeant Floyd Blanks, who testified that, according to radar, defendant was

exceeding the speed limit by six miles per hour. After pulling the defendant over, Blanks told

him, ostensibly to allay his nervousness, that he was only going to give him a warning ticket.



                                                  -13-
Roa produced his driver’s license, vehicle registration, and proof of insurance. Nothing in the

record indicates that this was a rental car or that defendant was otherwise not its owner. Blanks

returned to his squad car to check Roa’s documents and became determined that, because of the

defendant’s “extreme” nervousness and the presence of an air freshener in his car, he was going

to secure Roa’s consent and search his car. At that time he requested assistance from Trooper

Clint Thulen.

       He returned to the defendant’s car. After giving Roa his documents, presumably freeing

him to drive off, Blanks stopped him with the command, “wait a minute, Andres,” asked him

three questions2 suggesting he believed Roa could be engaged in some criminal conduct, and

then requested, and received, consent to search something – Roa says it was only the trunk and

Blanks says the vehicle. Although there is some dispute about where Roa was and when the

request to search was made relative to the arrival of Trooper Thulen, we accept, as People v.

Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262, 267 (2005), requires us to do, the testimony of the

two officers that Thulen arrived while Blanks, having secured Roa’s consent, was standing near

the trunk of defendant’s car, preparing to search.

       The officers searched the entire vehicle for 20 minutes, finally discovering, with the help

of a fiberoptic scope, a hidden compartment near the air bag which contained 11 packages of

cocaine, totaling 24.2 pounds. Roa was arrested and charged with one count of possession and

two counts of possession with intent to deliver. His defense attorney moved to suppress the

drugs, claiming there had been no probable cause for the extended detention of the defendant.


       2
        Blanks asked Roa if everything in the vehicle belonged to him, whether anyone had
asked him to transport anything, and whether there was anything illegal (weapons, alcohol or
drugs) in the vehicle.


                                                -14-
        At the hearing on the motion to suppress, the trial court heard testimony from Sergeant

Blanks, Trooper Thulen, and the defendant, after which the court denied the defendant’s motion

to suppress based on its factual findings that: (1) the defendant was speeding, providing the

officer with probable cause for the initial traffic stop; (2) the duration of the traffic stop was

reasonable because the officer did not delay unduly in asking for consent to search; and (3) the

officer had a reasonable, articulable suspicion that the defendant was engaged in criminal

conduct justifying the extended detention.

        On the basis of these findings, the drugs that had been found in Roa’s vehicle were ruled

admissible for trial. The charges were first tried to a jury which deadlocked and was unable to

reach a verdict. The State then dropped two of the three counts and the second trial proceeded

on the single charge of possession with intent to deliver between 15 and100 grams of a

controlled substance. This charge was prosecuted in a bench trial on stipulated evidence. The

trial court found defendant guilty and sentenced him to 15 years in the Department of

Corrections.

        Roa, having properly preserved his issue, filed a timely notice of appeal asserting only

that the trial court had erred in denying his motion to suppress the evidence of drugs seized when

his vehicle was searched following a traffic stop. This court issued an order finding (1) that the

initial traffic stop was proper because there was probable cause to believe that the defendant was

speeding; (2) the original stop ended but, because Roa’s departure had been halted by the

officer’s show of authority, there had been a second seizure of the defendant; (3) the second

seizure was supported by a reasonable, articulable suspicion that the defendant was engaging in

criminal conduct; therefore, (4) the motion to suppress was properly denied and the defendant’s



                                                  -15-
conviction was proper and should be affirmed. Justice Lytton concurred in the result but

believed that there had been no second seizure because the extended encounter with the officer

had been consensual on the part of the defendant and, therefore, the search of defendant’s

vehicle was proper and the conviction should be affirmed. I dissented, agreeing with Justice

Wright that the initial stop had been proper and that there had been a second seizure, but I would

have found that seizure to have been made without a reasonable, articulable suspicion that the

defendant was engaged in criminal conduct and that the court’s contrary conclusion was against

the manifest weight of the evidence. For that reason, I believed the motion to suppress should

have been granted and would have reversed the conviction and remanded for a new trial without

the seized contraband.

       The defendant petitioned for leave to appeal and the supreme court issued a supervisory

order – one of several similarly grounded – directing that our earlier decision be vacated and the

case reconsidered in light of its recent decision in People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d

603 (2008). We allowed the parties to file supplemental briefs. There is now a new majority

opinion finding that the initial traffic stop was proper, there was no second seizure because the

encounter following the traffic stop was consensual, the motion to suppress was properly denied,

and affirming the conviction. Slip op. at 12.

                                            ANALYSIS

       In our reconsideration pursuant to the supervisory order, the fundamental issue in this

appeal remains the same: whether the evidence seized during the search of the defendant’s

vehicle was properly admitted at trial or should have been suppressed.

       Both the United States and Illinois Supreme Courts have told us that we review this



                                                -16-
question under a two-pronged standard. Our first inquiry is whether the historical factual

determinations made by the trial court are supported by the manifest weight of the evidence

presented or whether there has been clear error. Our second is a de novo review of whether the

trial court’s ultimate legal ruling concerning suppression is warranted. Cosby, 231 Ill. 2d at 271,

 898 N.E.2d at 609, citing People v. Luedemann, 222 Ill. 2d 530, 542-43, 857 N.E.2d 187

(2006), citing Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct.

1657, 1663 (1996). Because of the major change effected by Cosby, I will look at the second

prong first.

                                       What does Cosby hold?

        In People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008), the Illinois Supreme Court

considered -- in the consolidated appeals from the appellate court decisions in People v. Cosby,

No. 100681, and People v. Mendoza, 102584 -- the proper analytical framework for determining

whether a prolonged contact following a traffic stop was a consensual encounter or a second

seizure. Initially, the court reiterated its earlier holding in People v. Harris, 228 Ill. 2d 222, 886

N.E.2d 947 (2008), that, pursuant to Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S.

Ct. 1465 (2005), a traffic stop could no longer become constitutionally infirm simply because the

fundamental nature of the stop had changed. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. The

Cosby court thus affirmed that the prong of People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260

(2003), on which our now-vacated decision in the instant case had rested, is no longer good law.

Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.

        The court then set out the analysis for resolving questions about the nature and propriety

of a vehicle search and the extended questioning of a motorist who had previously been detained



                                                 -17-
for a traffic violation.

        Noting that the relevant question in Cosby’s case was whether Kaus’s request to search

Cosby’s car after the traffic stop had ended constituted a new seizure for fourth amendment

purposes, the Cosby court analyzed that question “under the principles set forth in Brownlee[3]

and Mendenhall[4].” Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.

        The court then described the stop in Brownlee, concluding that the actions of the two

officers in standing on either side of (flanking) the car for two minutes without speaking would

cause a reasonable person to believe, consistently with Mendenhall, she was not free to leave.

Cosby, 211 Ill. 2d at 277, 898 N.E.2d at 613. Neither the Brownlee nor Cosby court has equated

that conduct to any of the Mendenhall factors. Brownlee thus holds out the possibility that there

can be a second seizure even though not one of the Mendenhall factors is clearly present.

        Indeed, the Cosby court stated:

                  “It is true that the Mendenhall factors are not exhaustive and that a

                  seizure may be found on the basis of other coercive police conduct

                  similar to the Mendenhall factors.” Cosby, 231 Ill. 2d at 281, 898

                  N.E.2d at 615, citing People v. Luedemann, 222 Ill. 2d 530, 557,

                  857 N.E.2d 187 (2006).

The court went on to say, however, that in its decisions in Luedemann, People v. Murray, 137 Ill.

2d 382, 560 N.E.2d 309 (1990), and People v. Smith, 214 Ill. 2d 338, 353-54, 827 N.E.2d 444

(2005), as had been the case in Mendenhall itself, the court “relied on the absence of the


        3
            People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999).
        4
            United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980).


                                                  -18-
Mendenhall factors to conclude that no seizure had taken place.” Cosby, 231 Ill. 2d at 281.

       The court further stated, again citing Luedemann:

               “ ‘Even in the absence of cases such as Mendenhall, Murray, and

               Smith, it would seem self-evident that the absence of Mendenhall

               factors, while not necessarily conclusive, is highly instructive. ***

                Obviously, a seizure is much less likely to be found when officers

               approach a person in such an inoffensive manner. Luedemann,

               222 Ill. 2d at 554.’ ” Cosby, 231 Ill. 2d at 281, 898 N.E.2d at 615.

Addressing the totality-of-the-circumstances factor raised by the dissent, the court said:

               “ ‘This court expressly adopted [the Mendenhall] factors in

               Murray. The “in view of all the circumstances” language must be

               read in concert with, not in opposition to, the factors. [Citation]

               The factors illustrate what type of police conduct would give a

               reasonable person an objective reason to believe that he or she was

               not free to leave or was not free to decline an officer’s requests.’

               Luedemann, 222 Ill. 2d at 554-55.” Cosby, 231 Ill. 2d at 282, 989

               N.E.2d at 616.

The court then concluded:

                       “The reality in Cosby’s case is that none of the Mendenhall

               factors are present. Therefore, the dissent’s insistence that Cosby

               was seized is not supported by the record.” Cosby, 231 Ill. 2d at

               282, 898 N.E.2d at 616.



                                                -19-
          Although this would appear to foreclose any possibility of finding a second seizure

unless one of the Mendenhall factors is present, the court returned to Brownlee, saying:

                 “In Brownlee, after the driver had been handed back his paperwork

                 by one of the two officers and had been told that no ticket would

                 be issued, both officers, who were on opposite sides of the vehicle,

                 stood at their stations, saying nothing. After about two minutes

                 had elapsed, the officer standing next to the driver’s door asked for

                 permission to search the vehicle. After asking whether he had a

                 choice, the driver consented. This court held that the officers’

                 actions constituted a show of authority and that a reasonable

                 person in the driver’s position would not have felt free to leave.

                 Thus, the driver and his passengers were subjected to a seizure.”

                 Cosby, 231 Ill. 2d at 283, 898 N.E.2d at 616.

At no time that I have been able to find has the court ever found that the situation in Brownlee

involved any of the Mendenhall factors. That conclusion was not clearly drawn either in

Brownlee itself or in Cosby.

          At the end of its analysis in Cosby’s case, the court held that “Cosby was not seized and

that his consent to search his car was therefore voluntary.” Cosby, 231 Ill. 2d at 285, 898 N.E.2d

at 617.

          Turning then to Mendoza, the court stated its intent to “apply the Brownlee analysis to

Mendoza’s appeal.” Cosby, 231 Ill. 2d at 286, 898 N.E.2d at 618. Having so said, however, the

court stated that “[n]one of [the Mendenhall] factors are present in Mendoza’s case.” Cosby, 231



                                                  -20-
Ill. 2d at 287, 898 N.E.2d at 618. The court then reiterated the four factors and tested every fact

on which the appellate court had based its decision that Mendoza had been seized for its fit with

one of the Mendenhall factors. After noting that there were only two officers rather than several,

that the guns were not displayed to Mendoza in the way contemplated in Mendenhall, that

neither officer testified to physically touching Mendoza, and that the record did not suggest that

they had spoken to Mendoza in a way suggestive of a requirement of compliance; the court

stated: “The absence of all the Mendenhall factors strongly suggests that Mendoza was not

seized for fourth amendment purposes.” (Emphasis added.) Cosby, 231 Ill. 2d at 287, 898

N.E.2d at 619.

       During the course of its opinion, the Cosby majority, in responding to the factual and

legal challenges raised by the dissent, appeared to refine and clarify its position with respect to

the role of the Mendenhall factors in the determination of whether a second seizure has occurred

following a traffic stop. They have created what appear to be two conclusions: first, that, in the

wake of Cosby, Brownlee remains good law to the extent of its statement of the general legal

principle that a person is seized when, in view of all the facts and circumstances, the person

would not feel free to leave. Brownlee, 186 Ill. 2d at 517, 713 N.E.2d 564.

       Second, there now seems to be an almost mandatory presumption that a reasonable

person would feel he or she was free to leave the scene once a traffic stop has ended unless the

police officer engages in the threatening or coercive conduct identified in the four Mendenhall

factors. Absent that specific conduct, any continuation of the encounter that began with the

traffic stop is deemed “consensual.”

       Put another way, unless several police officers act in a threatening manner, one officer



                                                 -21-
waves or points a weapon at the motorist, an officer physically touches the person of the citizen

(presumably in a threatening or coercive way), or an officer employs a threatening tone or

forgets to smile or sound friendly when he is telling the motorist to wait, or answer questions

about criminal activity or give consent to search his vehicle there is no show of authority that

would lead a reasonable person to feel he or she was not to leave – a motorist who does not

simply get in his car and drive away while the officer is standing by the vehicle talking is

remaining voluntarily.

                          What is the impact of Cosby on the instant case?

       I have no quarrel with the author’s review of the extant law relevant to searches during or

following traffic stops as most recently interpreted by the Illinois Supreme Court in Cosby. I do,

however, not agree that Cosby requires us to affirm Roa’s conviction. I write separately to

support that disagreement and to express, respectfully, my belief that Cosby is flawed and my

hope that the supreme court will consider revisiting that decision.

       Pursuant to the supervisory order, we have reconsidered our earlier decision in this case.

The majority has clearly read Cosby’s legal construct in the same way I have, and has abandoned

our earlier majority finding that there had been a second seizure of Roa, and has now found that,

since none of the Mendenhall factors was present in this case, there was no show of police

authority and this was merely a consensual encounter between the officers and Roa. Even

without looking beyond Mendenhall, however, I believe we must vacate Roa’s conviction and

remand the case for a new trial for several reasons. Moreover, if, as the Cosby court plainly

leaves open, there may be, although the possibility is remote, other situations that can create

seizures, the majority decision is incomplete because of its total failure to look beyond the



                                                 -22-
Mendenhall factors for evidence of a seizure.

        I believe the new majority decision is apparently consistent with those portions of the

supreme court’s legal analysis in Cosby that suggest that, if there are no Mendenhall factors,

there is no seizure. The majority simply finds that no Mendenhall factors are present in this

case. I believe the record suggests the possible presence of at least one factor and would reverse

for further proceedings to make that determination.

        At the time of the hearing on Roa’s motion to suppress and of his jury and bench trials,

the focus of the defense, the prosecution, and the court was on whether Sergeant Blanks had a

reasonable, articulable suspicion that Roa was engaging in criminal conduct when he prolonged

the detention after concluding the traffic stop. Prosecuting and defending the charges on this

basis was fully supported by viable supreme court authority.

        The decision of the trial court was grounded in its determination that the tacitly

recognized seizure was proper because, considering the totality of the circumstances, Blanks had

a reasonable, articulable suspicion that Roa may have been part of the nation’s drug traffic. In

our first review, the majority found that there had been a second seizure and the determination of

whether the conviction should be affirmed or reversed rested entirely on the existence or absence

of that reasonable, articulable suspicion of Roa’s wrongdoing. Even though Justice Lytton’s

special concurrence found the encounter to be consensual, he did so without any citation to

Mendenhall or analysis of its four factors.

        Cosby profoundly altered the legal landscape. The supreme court’s recognition of that

fact is clear in its analysis in the case and is implicit in the number of supervisory orders that

were issued directing the appellate court to vacate earlier decisions and reconsider the cases in



                                                  -23-
light of its Cosby decision. Concepts of fundamental fairness and rudimentary due process

would reasonably suggest that cases that were prosecuted, defended, and decided entirely on a

legal basis that was sound at the time they were both tried and reviewed by the appellate court,

but were subsequently invalidated by the supreme court, should be retried to allow the parties to

actually present evidence tailored to the new bases for decision.

        I acknowledge that this was not the way in which the supreme court disposed of the

appeals of Cosby and Mendoza and recognize that their disposition may authorize us to forego a

remand. My concern, however, is that facts which may not have seemed to warrant particular

articulation or emphasis under one legal theory may assume far greater importance when

proceeding under a different one. In that circumstance, the fact that something does not appear

in the record is not dispositive of whether it exists. But even if I am wrong on the basic policy

question, I still believe that remand is required in this particular case.

        Unlike the situation in Cosby, there is something in the Roa record that seems relevant to

one of the Mendenhall factors and which seems to me to require fleshing out and clarification.

Both the officer and the defendant testified that, after he returned Roa’s documents and gave him

the warning ticket, Blanks said, “wait a minute, Andres.” There was no testimony about Blanks’

tone of voice, body language or attitude at the time he uttered words that clearly could have

been a command. Nor is there any express testimony about the manner in which Blanks asked

the three questions that hint of his admitted suspicion of Roa’s wrongdoing or asked to search.

There is Roa’s testimony that he thought he had to stay. When asked why, if he had only agreed

to tender his trunk, he did not object when the officer proceeded to hit on the passenger door of

the car and search under the hood and check inside the engine, he said, “I can say he’s the police,



                                                  -24-
what can I do? *** You know, I think they are the law, they are the police. You know, I don’t

want to be in trouble, you know.” Because I believe there is enough in the record to suggest that

Roa might be able to show the presence of at least one of the Mendenhall factors, I would

reverse his conviction and remand the case for a new suppression hearing focused on evidence

pertinent to those factors.

       I believe a fair reading of Mendenhall clearly shows that the presence of a single “factor”

is sufficient. The Mendenhall court stated:

                       “We conclude that a person has been ‘seized’ within the

               meaning of the Fourth Amendment only if, in view of all of the

               circumstances surrounding the incident, a reasonable person would

               have believed that he was not free to leave. Examples of

               circumstances that might indicate a seizure, even where the person

               did not attempt to leave, would be the threatening presence of

               several officers, the display of a weapon by an officer, some

               physical touching of the person of the citizen, or the use of

               language or tone of voice indicating that compliance with the

               officer’s request might be compelled. [Citations.] In the absence of

               some such evidence, otherwise inoffensive contact between a

               member of the public and the police cannot, as a matter of law,

               amount to a seizure of that person.” (Emphasis added.)

               Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 100 S. Ct.

               at 1877.



                                                -25-
        Thus, if, upon remand, the court finds the presence of one of the Mendenhall factors, the

defendant was seized at the time he was questioned and his vehicle was searched. The court

would then need to determine whether the seizure was supported by probable cause or

reasonable suspicion or was illegal. See Cosby, 231 Ill. 2d at 277, 898 N.E.2d at 613.

        Should such an analysis be required, the question for the court would be whether,

considering the totality of the circumstances, the officer had a reasonable, articulable suspicion

that Roa was engaged in criminal conduct.       In this court’s earlier decision, I concluded that the

trial court’s finding that Sergeant Blanks had a reasonable, articulable suspicion to believe that

Roa was engaged in criminal conduct was against the manifest weight and that the first prong of

our standard of review had not, therefore, been met. If this case were remanded – as I think it

should be – and if the trial court should find the presence of a Mendenhall factor – which I think

is possible – the trial court would have to undertake a new analysis of the totality of the

circumstances to determine whether Blanks had the requisite reasonable, articulable suspicion. I

would still find that, given the totality of the circumstances in this case, a finding that he did

would be against the manifest weight of the known facts.

        When that analysis was done in the earlier case, there were facts elicited in the

examination of Sergeant Blanks which, to my knowledge, have not been available to the court in

prior cases and which I believe to be highly relevant.

        As judges, we get a false sense of the reliability of the indicators that drug interdiction

teams – and police officers generally – use in profiling drivers. The only time these stops come

to our attention is when contraband is actually found during a search of the vehicle. It tends to

appear, therefore, that the law enforcement officers are right 100% of the time. But Sergeant



                                                  -26-
Blanks disabused us of that notion in his testimony. The dialog was as follows:

                      “Q And when you talk about those thousand, roughly a

               thousand interdiction stops that you’ve personally made, are those

               a thousand that have led to the discovery of some sort of

               contraband, or is that just a thousand stops and then you conducted

               an investigation and it went one way or another?

                      “A A thousand that have led to the discovery of some kind

               of contraband.

                      “Q OK. How many drug interdiction stops would you say

               you’ve made where there’s been no discovery?

                      “A Two thousand.

                      “Q OK.

                      “A Minimum.

                      “Q So there are times, and in fact more often than not, if I

               hear you correctly, where you don’t discover something that you

               think might be there?

                      “A Yes, sir.” (Emphasis added.)

       The testimony was that Sergeant Blanks was wrong in two out of every three detentions

he made and searches he undertook using the factors he enumerated. Stated another way, it is

two times more likely that, using Sergeant Blanks’ track record as a guide, Roa was innocent of

wrongdoing rather than guilty. That hardly supports a conclusion that the factors, singly or in

combination, constitute “reasonable” suspicion justifying extending the duration of a minor



                                               -27-
traffic stop to the time necessary to conduct a full-blown search for drugs.

       It is also worth noting that at least 2,000 innocent motorists were detained and their

vehicles were searched to no avail by this one officer alone. If those stops were like this one, the

delays were significant and the searches far ranging, including the areas under the hood, in the

engine, and behind the airbag.

       The trial court made it absolutely clear that its decision that there was a reasonable

suspicion of criminal activity was based on Sergeant Blanks’ “vast” experience, stating:

               “I have to look at it as an officer with Trooper Blanks’ experience

               would look at it. *** [Blanks] has 17 years of experience or

               more. It’s not like *** somebody that is a rookie that just came on.

               And I have to look at that. That’s the totality of the circumstances.

               I have a trooper here that has been - has significant training, and

               I’m well aware [Blanks] has been in court many, many times in

               these situations, and obviously from his testimony here, [Blanks]

               knows what he’s doing. He can describe the - the scent of - of

               cocaine. He can describe masking agents and *** he’s very well

               versed in - in cocaine trafficking or in controlled substance

               trafficking.”

       But he was, by his own testimony, wrong more than 67% of the time. That kind of

experience should not inspire much confidence in either the rationality or the predictive ability

of the factors on which he has relied for 17 years and on which he teaches others to rely.

If you are wrong 67% of the time you rely on innocent conduct, the inevitable and legitimate



                                                -28-
question raised is whether those factors can, in and of themselves, constitute reasonable,

articulable suspicion of criminal conduct. Surely they cannot.

        Taking into account the fact that the trial court could not consider what Blanks found to

determine whether he had a reasonable suspicion of criminal activity, there is nothing to show

that the trial court made any evaluation of how or why these factors, viewed independently and

objectively by the court, were more reliable or reasonable in this case than they were in the

more than 2,000 cases in which the officer relying of them was wrong. Indeed, there is no

indication that the trial court either acknowledged or considered Sergeant Blanks’ admission of

significant fallibility. When the trial court and courts of review view the factors allegedly

giving rise to an articulable suspicion of criminal activity not objectively but through the lens of

the officer’s experience, as the trial court and the majority in its earlier decision in this case

expressly did, any reasonable assessment of the factors as predictors of criminal activity can only

appropriately be done taking his 67% failure rate into consideration..

        Again, should such a review be necessary on remand of the case, I believe consideration

of this information should be a significant part of the assessment of whether the officer had a

suspicion of Roa that was reasonable for two reasons. First, our judicial system promises fair

process of the guilty as well as the innocent. That process requires consideration of all relevant

factors, not just those that support a finding of guilt. There are at least 2,000 innocent (except of

traffic violations) motorists who were stopped in their travels, questioned, and subjected to a

search of their vehicles (which, if they were like the ones in this case, consumed quite a bit of

time) for no valid reason. Our decisions in these cases affect them every bit as much as they do

the defendants in the individual cases. There should be something more than a hunch that causes



                                                  -29-
them inconvenience.

       For all of the foregoing reasons, I dissent.




                                                -30-
