                                          2016 IL App (3d) 140780

                               Opinion filed February 24, 2016
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2016

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 12th Judicial Circuit,
                                                       )       Will County, Illinois.
            Plaintiff-Appellant,                       )
                                                       )       Appeal No. 3-14-0780
            v.                                         )       Circuit No. 13-CF-2727
                                                       )
     SEAF M. ZAYED,                                    )       The Honorable
                                                       )       Amy Bertani-Tomczak,
            Defendant-Appellee.                        )       Judge, presiding.
     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Presiding Justice O’Brien and Justice Holdridge concurred in the judgment and opinion.

     _____________________________________________________________________________

                                                 OPINION

¶1          The defendant, Seaf M. Zayed, was charged with unlawful possession of a controlled

     substance (720 ILCS 570/402(c) (West 2012)). He filed a motion to suppress evidence, which

     the circuit court granted. On appeal, the State argues that the circuit court erred when it granted

     the defendant’s motion to suppress. We affirm.

¶2                                                 FACTS

¶3          On January 9, 2014, the defendant was charged by indictment with unlawful possession

     of a controlled substance. On May 5, 2014, the defendant filed a motion to suppress evidence.
     In his motion, the defendant stated that he was a passenger in the back seat of a vehicle that was

     stopped by a police officer on December 22, 2013. The defendant alleged that he was searched

     by the police officer, but that the officer lacked probable cause and reasonable suspicion to

     conduct the search. The circuit court held a hearing on the defendant’s motion on July 24, 2014.

¶4                                     Testimony of Deputy Lukich

¶5          Deputy Bryan Lukich testified that he was on patrol in his vehicle at around 5 p.m. on

     December 22, 2013, in a residential area in Will County when he observed a silver Dodge fail to

     signal a turn. He initiated a traffic stop of the vehicle, which had three occupants, one of whom

     was the defendant. During the stop, Lukich had the defendant exit the vehicle. During a pat-

     down frisk of the defendant, Lukich reached in the area of the defendant’s genitals. The

     defendant’s pants were then unzipped and his belt undone. Lukich found two plastics bags in the

     area of the defendant’s genitals, one of which contained what he believed to be crack cocaine.

¶6          On cross-examination, Lukich stated that the silver Dodge signaled its turn but did so

     late, which prompted the stop. After he activated his emergency lights, Lukich said that he

     noticed the back seat passenger—the defendant—move around the back seat and that the

     defendant’s “head came close to the roof line of the vehicle.” Lukich explained that the

     movement was such that it appeared as if the defendant was trying to stand up. It was dark

     outside and Lukich’s vehicle was approximately 30 feet behind the silver Dodge.

¶7          Lukich testified that he had been trained in drug interdiction, which included identifying

     odors of burnt cannabis and frequent hiding spots for drugs. Lukich also stated that when he

     initially approached the silver Dodge, he smelled a very strong odor of burnt cannabis, an odor

     that he had smelled hundreds of times in the past. Lukich detained the driver of the vehicle and




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       asked him when cannabis had last been smoked in the vehicle. The driver responded, “earlier in

       the day.”

¶8            Lukich next had the defendant exit the vehicle, as he “was concerned for [his] safety

       because of [the defendant’s] movements inside the car during the traffic stop.” Lukich stated

       that he “didn’t know if [the defendant] was hiding a weapon or there could be more narcotics

       inside the vehicle.” Lukich stated that he conducted a pat-down search of the defendant for

       weapons and narcotics. During the pat-down search, Lukich felt something that was not

       consistent with human anatomy in the defendant’s genital region. The object felt like narcotics,

       as it “kind of crunch[ed]” in his hands. Lukich had felt that type of object hundreds of times.

¶9            Lukich said he placed the defendant near the front of the police vehicle for illumination

       purposes and asked him to unzip his pants. After the defendant complied, Lukich saw and

       retrieved the plastic bag. Lukich also stated that he had observed individuals use their genital

       region as a hiding place for narcotics well over a hundred times.

¶ 10          On redirect examination, Lukich stated that the defendant was approximately 5’11’’ and

       240 pounds. He admitted that the head of a person that size would typically be close to the roof

       of a vehicle like the silver Dodge. He also stated that the pat-down search of the defendant was

       done for officer safety, but acknowledged that he did not feel anything during the pat-down that

       indicated the presence of a weapon.

¶ 11                                         Video/Audio Recording

¶ 12          A video and audio recording of the stop was entered into evidence and played at the

       hearing. The recording began with Lukich driving through a residential neighborhood in an

       aggressive manner, which included failing to stop at two stop signs. As Lukich continued

       through the neighborhood, he approached a silver vehicle turning right at a stop sign. The


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       vehicle signaled and completed its turn. Lukich activated his emergency and initiated the traffic

       stop. When the vehicle pulled over and stopped, the head of an individual wearing a wool hat

       could be seen through the back window. There were no apparent movements made by this

       individual.

¶ 13          Lukich approached the driver’s side of the vehicle and asked for the driver’s license and

       insurance. The driver responded, but his response was inaudible on the recording. Lukich then

       asked if the driver and the passengers had identification. Lukich learned that the driver did not

       have a license on him. Lukich then asked the driver to step out of the vehicle, and he cuffed the

       driver’s hands behind his back. He then performed a pat-down search of the driver, which

       included reaching into various pockets on the driver’s clothing. He then moved the driver to the

       rear of the stopped vehicle and asked the driver something about smoking. The driver’s response

       was inaudible on the recording.

¶ 14          Lukich next walked to the rear passenger side of the vehicle, opened the door, and had

       the defendant exit the vehicle. He told the defendant to place his hands on the vehicle and asked

       the defendant something about what he had on him. While using a flashlight, Lukich then

       conducted a pat-down search of the defendant, which included grabbing at the defendant’s pants

       in the genital region. Lukich said that he could smell “weed” and asked if the defendant had any

       on him. Next, Lukich had the defendant place his hands on his head and turn around. After

       donning rubber gloves, Lukich continued his search of the defendant, which included further

       grabbing of the defendant’s pants in the genital region and expressing his disbelief in the

       defendant’s assertion that he did not have anything on his body. He then turned the defendant

       around, handcuffed his hands behind his back, and moved him in between the silver vehicle and

       the police vehicle.


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¶ 15          Lukich continued his search of the defendant’s genital region, which included pulling on

       the waistband of the defendant’s underwear, eventually pulling out a plastic bag while saying

       something about the defendant having cocaine in there. During this time, the defendant fidgeted

       and bent over slightly, which moved his genital region slightly away from Lukich. Lukich asked

       what the defendant was doing, and the defendant responded by making a comment about Lukich

       whipping the defendant’s “dick” out. Lukich responded by saying something about the

       defendant “stuffing shit down [his] pants.” The defendant again complained about Lukich

       whipping the defendant’s “dick” out, and Lukich said that there were no cars around. However,

       Lukich looked toward the road and immediately stated they would wait for the cars to pass. Nine

       vehicles passed before Lukich continued his search in the defendant’s underwear. Lukich pulled

       out another plastic bag from the defendant’s genital region, made an attempt to zip up the

       defendant’s pants, and led the defendant to the back seat of the police vehicle. Lukich then

       returned to the driver and asked something about whether there was anything else in the car and

       how long ago they had smoked. The driver’s response was largely inaudible on the recording.

¶ 16          The rest of the recording of the stop was not relevant to this case.

¶ 17          On August 4, 2014, the circuit court granted the defendant’s motion to suppress, finding

       that “[i]t’s the Court’s decision based upon the evidence that I’ve seen on the video and the oral

       testimony and the arguments and the case law presented that the officer possibly had a right to

       conduct a Terry search. I think he went way beyond that. There was no probable cause.” A

       written order granting the motion was entered on September 9, 2014, and the State appealed.

¶ 18                                              ANALYSIS

¶ 19          On appeal, the State argues that the circuit court erred when it granted the defendant’s

       motion to suppress. In support of its argument, the State contends that: (1) Lukich feared for his


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       safety, so a pat-down search was justified; (2) the defendant’s furtive movements in the back seat

       of the vehicle indicated that he was hiding something illegal; (3) the pat-down search provided

       probable cause for a further search of the defendant; and (4) the odor of cannabis emanating from

       the vehicle provided probable cause to search the defendant.

¶ 20          In reviewing a circuit court’s decision on a motion to suppress evidence, we employ a

       two-part standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We grant great

       deference to the court’s findings of fact and will disturb those findings only if they are against

       the manifest weight of the evidence. Id. However, we are free to assess those facts in light of

       the issues presented and the relief sought; accordingly, we review the court’s ultimate legal

       ruling on the suppression motion de novo. Id.

¶ 21          Because a traffic stop is more analogous to an investigative stop as defined in Terry v.

       Ohio, 392 U.S. 1 (1968), courts generally apply the Terry principles when faced with a challenge

       to the reasonableness of a traffic stop. People v. Jones, 215 Ill. 2d 261, 270 (2005). In this case,

       there is no question that Lukich had probable cause to stop the silver Dodge in which the

       defendant was a passenger. Without more, though, an officer in that situation lacks the authority

       to conduct a search of the vehicle or its occupants. Id. at 271. “The initial stop may be

       broadened into an investigative detention, however, if the officer discovers specific, articulable

       facts which give rise to a reasonable suspicion that the defendant has committed, or is about to

       commit, a crime.” People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000).

¶ 22          In People v. Stout, 106 Ill. 2d 77, 87 (1985), our supreme court held that when an officer

       detects an odor of a controlled substance, the officer has probable cause to conduct a search of a

       vehicle if testimony has been elicited that the officer has training and experience in the detection

       of controlled substances. This principle has been extended to include searches of the driver


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       (People v. Strong, 215 Ill. App. 3d 484, 489-90 (1991)) and passengers (People v. Boyd, 298 Ill.

       App. 3d 1118, 1127 (1998); People v. Williams, 2013 IL App (4th) 110857, ¶ 34).

¶ 23          In this case, Lukich testified that when he approached the silver Dodge, he immediately

       smelled a very strong odor of burnt cannabis emanating from the vehicle. He also testified that

       he was trained in recognizing the smell of cannabis and had smelled the odor of burnt cannabis

       hundreds of times. Pursuant to Stout and its progeny, Lukich had probable cause under these

       facts to conduct a search of the defendant. Boyd, 298 Ill. App. 3d at 1127; Williams, 2013 IL

       App (4th) 110857, ¶ 34. Accordingly, we hold that Lukich had probable cause to conduct the

       search of the defendant. Our analysis does not end there, however, as the search itself must still

       be reasonable under the fourth amendment (U.S. Const., amend. IV).

¶ 24          Strip searches are not per se unreasonable or illegal, but they do constitute an extremely

       significant intrusion into the individuals’ privacy. People v. Johnson, 334 Ill. App. 3d 666, 673

       (2002). The United States Supreme Court has stated:

                             “The test of reasonableness under the Fourth Amendment is

                      not capable of precise definition or mechanical application. In

                      each case it requires a balancing of the need for the particular

                      search against the invasion of personal rights that the search

                      entails. Courts must consider the scope of the particular intrusion,

                      the manner in which it is conducted, the justification for initiating

                      it, and the place in which it is conducted.” Bell v. Wolfish, 441

                      U.S. 520, 559 (1979);

       See also People v. Carter, 2011 IL App (3d) 090238, ¶ 19.




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¶ 25          An examination of the four factors announced in Bell leads us to the conclusion that

       Lukich’s strip search of the defendant was unreasonable. While we acknowledge that the third

       factor favors the State, as Lukich obtained probable cause to conduct a search of the vehicle and

       its occupants based on the odor of cannabis emanating from the vehicle, the other three Bell

       factors strongly favor the defendant. To the extent Lukich even attempted to take steps to reduce

       the intrusiveness of the search, those attempts on the whole were inadequate. He did wear rubber

       gloves, but the search was conducted on a residential street on which numerous vehicles passed

       during the stop and the search. While it was dark outside, there were streetlights providing some

       illumination of the area. Lukich also positioned the defendant in front of his police vehicle’s

       headlights for better visibility, which was also a position closer to the street and to the view of

       the passing vehicles. Lukich exposed a significant portion of the defendant’s underwear and the

       defendant showed visible discomfort during the search, which was confirmed by the defendant’s

       twice-expressed concern that Lukich was going to expose his genitals during the search. Lukich

       appeared either oblivious or unconcerned with these circumstances, which was evidenced by his

       statement that no vehicles were around just before nine vehicles passed by. The search of the

       defendant involved extremely intrusive means and it should have been performed in a manner

       that respected the defendant’s privacy. Cf. id. ¶¶ 12-16 (discussing section 103-1 of the Code of

       Criminal Procedure of 1963 (725 ILCS 5/103-1 (West 2008)), which requires, inter alia, a strip

       search of a person arrested for a traffic, regulatory, or misdemeanor offense to be conducted in

       an area where it cannot be observed by persons not conducting the search, and finding that a strip

       search conducted on a public street during daylight violated the statute). For these reasons, we

       hold that Lukich failed to conduct the search in a minimally intrusive nature such that the search

       was unreasonable under the circumstances. Compare Carter, 2011 IL App (3d) 090238, ¶ 20.



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¶ 26          For the foregoing reasons, we hold that the circuit court did not err when it granted the

       defendant’s motion to suppress evidence.

¶ 27                                            CONCLUSION

¶ 28          The judgment of the circuit court of Will County is affirmed.

¶ 29          Affirmed.




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