                          No. 3--04--0427

_________________________________________________________________
Filed January 20, 2009
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2009

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 14th Judicial Circuit,
                                ) Henry County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 02--CF--326
                                )
ANTHONY P. OLIVER,              ) Honorable
                                ) Ted J. Hamer,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

     JUSTICE McDADE delivered the opinion of the court:
_________________________________________________________________

     The defendant, Anthony P. Oliver, was charged with unlawful

possession of a controlled substance with intent to deliver (720

ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of a

controlled substance (720 ILCS 570/402(a)(2)(B) (West 2002)).    He

filed pretrial motions to suppress his confession and to quash

his arrest, which the circuit court denied.    After a bench trial,

the court found the defendant guilty on both counts, but that the

latter count would merge into the former count.    The court

sentenced the defendant to 10 years of imprisonment on the former

count.   On appeal, the defendant argued that the arresting

officer illegally detained him following a traffic stop, thereby

tainting the subsequent search that resulted in the discovery of

cocaine in the trunk of the vehicle.     The defendant also argued,
in the alternative, that he was entitled to $65 credit against

his fines for presentence incarceration.    In prior decisions, we

reversed and remanded.    The Illinois Supreme Court has entered a

supervisory order directing this court to vacate our judgment and

reconsider our decision in light of People v. Cosby, 231 Ill. 2d

262 (2008).   After reconsideration, we reverse and remand.

                                FACTS

     At the suppression hearing, Henry County Deputy Sheriff

Glenn Hampton testified that, during the early morning hours of

November 14, 2002, he observed a vehicle following another

vehicle too closely on Interstate 80.    Hampton initiated a

traffic stop of the offending vehicle.

     Hampton approached the driver's side of the vehicle, where

he found the defendant in the driver's seat and Orlando James in

the passenger's seat.    Hampton asked for the defendant's license;

however, the defendant gave Hampton a state identification card.

Hampton placed the defendant in the passenger's seat of the squad

car while he ran the defendant's card.    The dispatcher informed

Hampton that the defendant did not have a valid driver's license.
     In response to Hampton's inquiry, the defendant stated that

he had problems with his license due to an error attributable to

the Secretary of State.   Hampton did not arrest the defendant; he

merely stated that the defendant needed to resolve that

situation.

     At some point while the defendant was in the squad car,

Hampton approached James to make sure he had a valid driver's


                                  2
license.   The dispatcher informed Hampton that James was on

mandatory supervised release from the Department of Corrections,

although Hampton was not told for what James had been

incarcerated.   After Hampton received the information regarding

the defendant, the vehicle, and James, Hampton returned the

defendant's card and informed the defendant that he was "free to

go" as long as James drove.

     At that time, Hampton asked the defendant if there were any

weapons or contraband in the vehicle.    Hampton testified that he

was suspicious of "a very strong smell of an aroma, of some sort

of fragrance, real strong," coming from inside the vehicle.

Hampton stated that vehicles transporting contraband sometimes

use strong fragrances as masking agents.

     The defendant answered that there were no weapons or

contraband in the vehicle.    In response, Hampton asked the

defendant if he was certain of that.    The defendant said yes, he

was certain, but also told Hampton that he could search the

vehicle if he wanted.   Hampton took the defendant's statement as

consent to search the vehicle.
     Hampton next approached the passenger's side of the vehicle

and asked James to exit the vehicle.    Hampton informed James that

the defendant consented to a search of the vehicle and asked

James for consent to search.    James consented.   After placing

James near the rear of the vehicle and the defendant at the front

of the vehicle, Hampton began his search.    The only item Hampton

found in the vehicle's interior was a liquor bottle containing


                                  3
the same fragrance emanating from the vehicle.

       Hampton then asked James for consent to search the trunk.

James consented.    Hampton also asked the defendant for consent to

search the trunk.    The defendant also consented.   During his

search of the trunk, Hampton found a plastic baggie containing

cocaine in the wheel well of the vehicle.

       The defendant later gave a voluntary written statement to

Hampton, stating that he was taking the cocaine to a party, but

that he was not intending to sell the cocaine.    He also stated

that he was "ready to leave the streets" and give up using drugs.

       The defendant testified that he was driving a vehicle west

on Interstate 80 on the morning in question.    James was in the

passenger's seat.    The vehicle belonged to James' wife.   The

defendant stated that he was in the left lane, passing a truck

that was in the right lane.    Hampton's squad car was turning

around in a u-turn area on the interstate.    The defendant passed

Hampton, and Hampton began following the defendant.     Hampton then

pulled the defendant over.

       Hampton approached the driver's side and asked the defendant
for his license.    The defendant responded that he only had a

state identification card because someone in Connecticut had been

using his name.    Hampton then placed the defendant in the squad

car.

       Hampton ran the defendant's card, which came back as

suspended.    Hampton exited the squad car and approached James,

who gave Hampton his information verbally because he did not have


                                  4
his license on him.    Hampton returned to the squad car and ran

James's license.   The dispatcher told Hampton that James was on

parole.   Hampton then returned the defendant's card and told him

that he was free to go.    The defendant admitted that he felt free

to go at that point.

     Hampton next informed the defendant that he was going to

search the vehicle, and that, if there was nothing in the

vehicle, James would have to drive.    Hampton then asked the

defendant if there were guns or drugs in the vehicle.    The

defendant said Hampton never asked him whether Hampton could

search the vehicle.    The defendant stated that his door was

locked and that he no longer felt free to leave after Hampton

said he was going to search the vehicle.

     Hampton exited the squad car and approached James, whom he

had exit the vehicle.    Hampton returned and had the defendant

exit the squad car.    Hampton placed the defendant at the front of

the vehicle and James at the rear.    Hampton then began to search

the vehicle.

     After Hampton searched the interior, he opened the trunk and
began to search it.    The defendant stated that Hampton did not

ask him for consent to search the trunk and that he did not hear

Hampton ask James for consent to search the trunk.

     During his search of the trunk, Hampton rose up with his gun

drawn and told the defendant to "freeze" and to put his hands on

his head.   Hampton then made the defendant walk around to the

back of the vehicle, where he cuffed the defendant and James.


                                  5
     The defendant stated that his written statement was untrue.

He stated that Hampton told the defendant what to write because

the defendant had to "impress the State" in order to get the

intent charge dropped.    Additionally, the defendant stated that

Hampton encouraged him to talk to James regarding the incident to

ensure they had the same version of what happened.    On recall,

Hampton denied telling the defendant what to write and denied

encouraging the defendant to talk to James regarding the

incident.

     Orlando James testified that, on the morning in question, he

was the passenger in his wife's vehicle.    The defendant was

driving.    Hampton pulled them over and approached the driver's

side of the vehicle.    The defendant rolled the window down, and

Hampton said he pulled the defendant over for following another

vehicle too closely.

     The defendant gave Hampton a state identification card, and

Hampton took the defendant back to the squad car while he ran the

defendant's card.    About 10 minutes later, Hampton approached

James.   He asked for James' license.   James said that he had a
license, but that he did not have it on him.    James then gave

Hampton his personal information, and Hampton returned to the

squad car.

     Hampton returned about 10 minutes later with the defendant

walking slightly behind him.    Hampton asked James to exit the

vehicle and told the defendant to go to the front of the vehicle.

Hampton then asked James if he had any contraband on him, to


                                  6
which James said no.   Hampton asked for and received James's

consent to search James' person.       Hampton then placed James at

the rear of the vehicle.

     Hampton then began searching the vehicle's interior.       James

stated that Hampton never asked if he could search the vehicle

and that he never heard Hampton ask the defendant if he could

search the vehicle.    After searching the interior, Hampton began

searching the trunk.   He opened the trunk with the key.      Again,

James stated that Hampton did not ask for consent to search the

trunk and that he did not hear Hampton ask the defendant for

consent to search the trunk.

     With regard to the alleged events surrounding the

defendant's written statement, James stated that Hampton told him

that Hampton knew the State's Attorney personally and that

Hampton was going to try to help them out by getting the intent

charge dropped.   James also stated that Hampton told him that he

needed to "follow up" with the defendant's version of what

happened in order to convince the State's Attorney to drop the

intent charge, and that Hampton actually told him several parts
of the defendant's version.    James stated that Hampton placed him

in the same room with the defendant for five minutes to "talk it

over."

     On April 4, 2003, the circuit court denied the defendant's

motions to suppress.   The court found that the defendant and

James felt that they were free to go when Hampton made the

request to search the vehicle, and that Hampton did not illegally


                                   7
detain them prior to requesting consent to search.    Accordingly,

the court held that the defendant and James voluntarily consented

to the search.

     At the bench trial, Hampton and the defendant offered

testimony similar to their testimony from the suppression

hearing.   At the conclusion of the bench trial, the court found

the defendant guilty on both counts.

     On appeal, the defendant argued that Hampton illegally

detained him following the traffic stop, thereby tainting the

subsequent search that resulted in the discovery of cocaine in

the trunk of the vehicle.   This court agreed, and we reversed the

circuit court's judgment.   The State appealed.

     In a supervisory order issued on November 26, 2008, the

Illinois Supreme Court denied the State's petition for leave to

appeal but remanded the case to this court for reconsideration in

light of People v. Cosby, 231 Ill. 2d 262 (2008).

                             ANALYSIS

     On appeal, the defendant argues that the circuit court erred

when it denied his motion to suppress.   Specifically, the
defendant argues that he was illegally seized after the traffic

stop had ended, thereby tainting the evidence found in the trunk

of the vehicle.

     The ruling of a trial court on a motion to suppress evidence

frequently presents mixed questions of fact and of law.      People

v. Smith, 214 Ill. 2d 338, 827 N.E.2d 444 (2005).    Because the

trier of fact is in the best position to review the evidence and


                                 8
weigh the credibility of the witnesses, the findings of fact of

the trial court will not be disturbed unless they are manifestly

erroneous.   People v. Anthony, 198 Ill. 2d 194, 761 N.E.2d 1188

(2001).   However, the circuit court's ultimate determination of

whether the evidence should be suppressed is subject to de novo

review.   See People v. Gipson, 203 Ill. 2d 298, 786 N.E.2d 540

(2003).

     The fourth amendment of the United States Constitution

guarantees the "right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures."     U.S. Const., amend. IV.   Likewise,

article I, section 6, of the Illinois Constitution provides

similar protections.     Ill. Const. 1970, art. I, §6.

     In Cosby, the supreme court emphasized that, once a traffic

stop has come to an end, an officer's subsequent request to

search the vehicle raises the question of whether a new seizure

has occurred for fourth amendment purposes.     People v. Cosby, 231

Ill. 2d 262 (2008).     The analysis applicable to this type of

situation is found in United States v. Mendenhall, 446 U.S. 544,

64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee,

186 Ill. 2d 501, 713 N.E.2d 556 (1999).

     In Mendenhall, the Supreme Court held that a seizure occurs

when an individual's movement is restrained by physical force or

a show of authority.     Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497,

100 S. Ct. 1870.   Furthermore, the Court held:

           ?[A]person   has been 'seized' within the meaning of the


                                   9
     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."     Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d

     at 509, 100 S. Ct. at 1877.

The Mendenhall factors do not constitute an exhaustive list; a

seizure may be based on other coercive police conduct similar to

these factors.     People v. Cosby, 231 Ill. 2d 262 (2008).

     In Brownlee, our supreme court followed these principles and

emphasized that an individual may not be lawfully seized absent

reasonable, objective grounds supporting the seizure.       Brownlee,

186 Ill. 2d 501, 713 N.E.2d 556.       In Brownlee, two officers
flanked the front doors of a vehicle after a traffic stop ended,

said nothing for approximately two minutes, then requested

consent to search the vehicle despite having no probable cause or

reasonable suspicion of criminal activity to detain the vehicle's

occupants.    Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.    In such a

situation, our supreme court found that a reasonable individual

in the occupants' situation would not feel free to leave and held


                                  10
that the officers' show of authority constituted an illegal

seizure.   Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.

     In this case, there is no question with regard to the

validity of the initial traffic stop or Hampton's search of the

vehicle's interior.    The question we must address is whether

Hampton's request for consent to search the trunk constituted a

new seizure of the defendant.   See People v. Cosby, 231 Ill. 2d

262 (2008).

     At the time Hampton requested consent to search the trunk,

the defendant and James were still standing at the front and rear

of the vehicle, respectively, pursuant to Hampton's earlier

directive.    Despite having found nothing illegal in the vehicle's

interior, Hampton requested consent from James and the defendant

to search the trunk.   It is reasonable for one in the position of

the defendant and James to conclude that: (1) had the defendant

and James ignored Hampton's request and made efforts to leave the

scene, Hampton would not have simply allowed them to leave; and

(2) given the ongoing directive to stand at opposite ends of the

vehicle, compliance with the request to search the trunk was
compelled.    See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100

S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.   Under

these circumstances, we find that a reasonable person in the

defendant's position would not feel free to leave at the time

Hampton made his request.   Thus, the defendant and James were

subjected to a seizure.   See Brownlee, 186 Ill. 2d 501, 713

N.E.2d 556.


                                 11
       As previously noted, Hampton, who testified that he was

suspicious of the strong fragrance emanating from the vehicle,

did not find any contraband in the vehicle's interior.    The only

item of some note he found was a bottle containing a fragrant

liquid.    However, the presence of a strong fragrance, without

more, is insufficient to establish probable cause or a

reasonable, articulable suspicion of criminal conduct.    See

Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.    We also note that

Hampton knew James was on mandatory supervised release.    However,

Hampton did not know why James had been incarcerated.    The

knowledge of James' parole status, coupled with the strong

fragrance, does not constitute probable cause or a reasonable,

articulable suspicion of criminal conduct.    Thus, at the time he

requested consent to search the trunk, Hampton lacked reasonable,

objective grounds to justify the continued detention of the

defendant and James.    See Brownlee, 186 Ill. 2d 501, 713 N.E.2d

556.    Without such grounds, Hampton's seizure of the defendant

and James was unlawful.    See Brownlee, 186 Ill. 2d 501, 713

N.E.2d 556.
       An illegal seizure may taint a subsequent consent to search.

People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999)

(citing Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441,

83 S. Ct. 407 (1963)).    Here, the defendant and James were

illegally detained at the time they gave consent to the search.

The consent and the resulting search were both tainted, and the

fruits thereof should have been suppressed.    Brownlee, 186 Ill.


                                 12
2d 501, 713 N.E.2d 556 (citing Wong Sun, 371 U.S. 471, 9 L. Ed.

2d 441, 83 S. Ct. 407).

     Our decision on the first issue obviates the need to address

the defendant's monetary credit argument.

     The judgment of the circuit court of Henry County is

reversed, and the cause is remanded for further proceedings.

     Reversed and remanded.

     O’BRIEN, P.J., concurs.

     CARTER, J., dissenting:

     I respectfully dissent from the majority’s conclusion in the

present case.   It is my opinion, based on our supreme court’s

ruling in People v. Cosby, No. 100681 (September 18, 2008), that

the majority’s position can no longer be maintained.     In Cosby, a

case with facts nearly identical to that of the present case, our

supreme court found that a new seizure of the defendant did not

occur and that the consent that the defendant gave for a search

of the vehicle was valid.     Cosby, slip op. at 17.   The same

conclusion is mandated in the present case.

     At the hearing on the motion to suppress in the present
case, officer Hampton testified that after he received the

information regarding defendant, the passenger (James), and the

vehicle, he gave defendant back his identification card and told

defendant that he was free to leave.    Hampton specifically

testified that he was the only officer at the location of the

traffic stop and that before he asked for consent to search the

trunk of the vehicle, he did not draw his weapon, he did not


                                  13
handcuff defendant or James, and he did not tell defendant or

James that they could not leave.     Moreover, no evidence was

presented to suggest that Hampton’s tone of voice or language was

such as to indicate that compliance with his request was

required.   Contrary to the analysis set forth in Cosby, the

majority’s analysis in the present case places no significance on

the complete absence of any of the Mendenhall factors in

defendant’s encounter with officer Hampton.     Thus, I would

respectfully disagree that under the circumstances of this case,

a reasonable person in defendant’s position would not feel free

to leave, given the absence of the Mendenhall factors.     That

Hampton did not find anything in the passenger area of the

vehicle does not somehow taint Hampton’s request to search the

trunk of the vehicle.   Such a conclusion would essentially return

us to the approach set forth in People v. Gonzalez, 204 Ill. 2d

220, 789 N.E.2d 260 (2003), an approach which our supreme court

has clearly rejected.   See Cosby, slip op. at 10.    Given our

supreme court’s analysis in Cosby and its previous analysis in

People v. Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 (2006), it
is inappropriate for this court to speculate on what would have

happened if defendant and James had either ignored the officer’s

request to search or had refused it and then to use that

rationale to support a finding that compliance with the request

to search was compelled.

     In addition, in ruling on the motion to suppress, at least

as to the issue of whether consent was given, the trial judge


                                14
found Hampton’s testimony to be more credible than that of

defendant or James.   It is clear from the trial judge’s written

comments in the order denying the motion to suppress and his oral

comments at the hearing on defendant’s motion to reconsider that

the credibility of the witnesses played at least some part in the

trial judge’s ultimate conclusion.   The majority’s ruling in the

present case makes no mention of the trial judge’s determination

of credibility.

     For the reasons stated, I respectfully dissent.




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