                                        2014 IL App (3d) 130558

                                Opinion filed August 20, 2014
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                A.D., 2014

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 13th Judicial Circuit,
                                                     )       La Salle County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-13-0558
            v.                                       )       Circuit No. 12-CF-30
                                                     )
     ABDULLAH ABDUR-RAHIM,                           )       The Honorable
                                                     )       H. Chris Ryan,
            Defendant-Appellant.                     )       Judge, presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Justices McDade and O'Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Abdullah Abdur-Rahim, was charged with unlawful possession of cannabis

     with intent to deliver (720 ILCS 550/5(g) (West 2012)). Prior to trial, defendant filed a motion

     to quash his arrest and suppress evidence, arguing that the 50-minute detention after the initial

     stop was an unlawful extension of the stop. He also filed a motion to suppress his statements,

     claiming that the statements he made during the detention should be suppressed because he was

     not given proper Miranda notice. The trial court conducted separate hearings and denied the

     motions. Following a jury trial, defendant was found guilty and sentenced to seven years in
     prison. On appeal, he contends that the trial court erred in denying both of his pretrial motions.

     We reverse.

¶2          At the hearing on the motion to suppress defendant's statements, Trooper John

     Morscheiser testified that he was on patrol around 1 p.m. on January 16, 2012, on Interstate 80.

     He observed a Toyota Tundra following a vehicle too closely and crossing the yellow line.

     Morscheiser executed a traffic stop and approached the passenger side of the vehicle. He

     identified defendant as the driver and advised him of the traffic violations. About 20 or 30

     minutes later, Morscheiser returned to defendant's truck and asked defendant to step out of the

     vehicle. Trooper Ken Patterson was also present as the backup trooper, but he was not near

     Morscheiser or the Tundra when Morscheiser asked defendant to step out of the vehicle.

¶3          Morscheiser escorted defendant to the back of the truck and engaged in a conversation

     with him. The conversation took place between the truck and the squad car and was recorded on

     the squad car's dashboard camera. At that point, defendant had not been informed that he was

     under arrest or that he was being otherwise investigated. Morscheiser advised defendant that he

     smelled cannabis in the vehicle upon his initial approach, and he asked defendant to explain why

     he smelled cannabis. Defendant told Morscheiser that there was probably an odor of cannabis on

     his clothes. He also admitted that he had a "bowl" (a device commonly used for smoking

     marijuana) in the center console.

¶4          On cross-examination, Morscheiser testified that when he initially approached

     defendant's vehicle, he asked defendant for his driver's license. During the 30 minutes between

     the initial stop and when Morscheiser returned to defendant's truck, Morscheiser finished writing

     the warning tickets. When he approached defendant's truck, Morscheiser had defendant's driver's




                                                     2
     license, but he did not give defendant the tickets or his driver's license before asking him to step

     out of the vehicle.

¶5          On redirect, Morscheiser testified that after he conducted the initial driver's license

     inquiry, dispatch notified him that defendant was on the terrorist watch list. He stated that it took

     him a long time to complete the written warnings due to the unusual circumstances.

     Morscheiser had to complete several comparison checks to verify that defendant was the same

     person whose name appeared on the watch list. He had the district dispatch center working to

     verify defendant's identification. He also had to make the appropriate phone calls and provide

     information about the subject.

¶6          The trial court denied defendant's motion to suppress statements. The court noted that the

     length of the stop was "getting a little long" but concluded that it was not so unreasonable that it

     transformed into a custodial situation. The court added that "[defendant] might feel that he was

     in custody. But on the other hand, given the Mendenhall factors, I don't think he was. I can't

     find that based on an objective view."

¶7          A subsequent hearing was held on defendant's motion to quash his arrest and suppress

     evidence. Trooper Morscheiser again testified that he pulled defendant over on January 16,

     2012, for driving too closely to another vehicle and crossing the yellow line. He approached the

     passenger side of the vehicle. After a brief conversation, defendant gave Morscheiser his driver's

     license, which Morscheiser took back to his squad car. Morscheiser testified that when he

     initially approached defendant's vehicle, he had a "suspicion of the odor of cannabis." He later

     testified that he was unsure about the odor because of the way the wind was blowing and he

     decided to give defendant "the benefit of the doubt originally because it was a faint odor."




                                                      3
       Morscheiser stated that he wanted to talk to defendant about the odor at some point, but there

       were other things going on that delayed the conversation.

¶8            Within minutes after the initial stop, Trooper Patterson arrived on the scene.             He

       approached the truck, spoke with defendant, and then went back to the squad car and talked to

       Morscheiser. Patterson then returned to defendant's vehicle and had another conversation with

       defendant. Morscheiser testified that he did not mention marijuana to defendant during the

       initial 30 minutes of the stop but that Patterson did. Morscheiser stated that he "probably" told

       Patterson he was going to question defendant about the cannabis.

¶9            Morscheiser further testified that he issued warning tickets for the two traffic violations

       he observed, but he did not give defendant the tickets prior to having him exit the vehicle.

       Morscheiser stated that defendant was not free to leave at that point because he still had

       defendant's driver's license. He testified that he was not arresting defendant at the conclusion of

       the initial 30 minutes; he was still investigating. Morscheiser called for the drug dog before he

       asked defendant to exit the vehicle.

¶ 10          As he stated in the hearing on the motion to suppress defendant's statements, Morscheiser

       testified that the reason for the delay in the stop was due to the terrorist watch list investigation.

       After verifying defendant was the person listed, Morscheiser was informed that there were no

       pending warrants for defendant's arrest. Dispatch also had to call a terrorist screening center.

       Morscheiser did not inform defendant that he was on the watch list. In light of statements

       defendant made once he was outside the vehicle, Morscheiser searched the vehicle.

¶ 11          On cross-examination by the State, Morscheiser stated that he was familiar with the smell

       of burnt and raw cannabis based on his nine years of training in drug interdiction. On his first

       approach to defendant's vehicle, he smelled the faint odor of raw cannabis. He admitted that a


                                                         4
       background check normally takes only a few minutes. However, Morscheiser had been involved

       in another stop that required a terrorist watch list check, and that background check took a while.

       According to Morscheiser's testimony, the majority of the 30-minute wait was due to the terrorist

       watch list investigation.

¶ 12          Prior to the dog arriving, Morscheiser searched the truck and found a smoking device and

       a tobacco package with raw cannabis inside. The dog alerted to the presence of drugs at the back

       of the vehicle. The troopers pried open the tailgate and found four duffel bags containing

       marijuana.

¶ 13          Patterson testified that he had been employed as an Illinois State Police Trooper for five

       years. He reported to the scene after Morscheiser made the traffic stop and the terrorist watch

       list was mentioned. He was there within five minutes. Patterson approached defendant's vehicle,

       but he did not smell marijuana; he smelled a masking agent. He testified that it smelled like it

       was a freshly sprayed deodorant. Patterson had two conversations with defendant during the

       initial 30-minute period. During those conversations, defendant denied having cannabis in his

       vehicle.

¶ 14          The trial court then viewed the videotape of the stop. It shows Morscheiser initiating a

       traffic stop of defendant's vehicle from the point of view of the dashboard of the squad car.

       Morscheiser exits his vehicle and approaches the passenger side of defendant's truck at minute

       mark 1:06. After briefly talking to defendant, Morscheiser walks back to his car holding several

       documents. He contacts dispatch and spells defendant's last name. He then says, "When I was

       up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I'm

       not certain the way the wind was blowing and stuff. I'm not going to call him out on that, and I

       am going to question him about it at some point. I am not going to use that as probable cause to


                                                       5
       search the vehicle. I'm not 100% sure about that." He also mentions a backup officer at the

       scene.

¶ 15            At minute mark 7:21, dispatch mentions a possible terrorist organization member. At

       minute 8:30, Trooper Patterson can be seen approaching the passenger side of defendant’s

       vehicle. A few minutes later, Morscheiser asks dispatch if they are going to call the "866

       number." Patterson then tells Morscheiser that defendant has a new snowboard and helmet in the

       backseat of his truck and says he spent the night in Iowa. Morscheiser informs Patterson that he

       thought he could smell the odor of burnt cannabis but that he is not "100% sure." Patterson says

       that it "smells like Vick's Vapor Rub all over the car."

¶ 16            At minute 12:04, Morscheiser indicates that he is going to call for a dog because they are

       going to have to call the 866 number and they will have time. Patterson once again approaches

       the truck and has another conversation with defendant. The troopers discuss the paperwork and

       defendant's terrorist watch list status. Morscheiser tells Patterson to let defendant know that the

       computer is running slow. At minute 20:47, Patterson reapproaches defendant's vehicle and has

       another conversation with defendant. At 25:55 on the tape, dispatch indicates that defendant is a

       "Code 3" and that is the lowest priority. At that point, Morscheiser says that they should wait for

       the dog and that if the dog alerts that would give him a reason to get into the locked bed.

       Morscheiser gives dispatch defendant’s license number and address at minute 29.

¶ 17            At minute mark 32:20, Morscheiser approaches defendant's vehicle and asks defendant to

       "step out for a second." Morscheiser escorts defendant around to the back of the truck and asks

       him to take his hands out of his pockets. He asks defendant if he has anything in his pockets and

       defendant shows him that he only has some cash. Morscheiser says that when he approached the

       vehicle it smelled like marijuana and asks defendant if he smokes marijuana.            Defendant


                                                        6
       indicates that he does not. Morscheiser says, "Like in the last couple of days?" Defendant says

       it might be on his clothes. Morscheiser then tells defendant that he is going to have a dog walk

       around the truck and if the dog alerts, he will search the vehicle. Defendant admits that he has a

       "little bowl" in the car. Morscheiser places defendant in the back of the squad car and begins to

       search the passenger compartment of the truck.

¶ 18          At minute 52:49, the canine arrives and alerts to narcotics near the tailgate of the truck.

       From his squad car, Morscheiser asks if that is a positive alert.         He then exits the car.

       Morscheiser, Patterson and another trooper drop the tailgate and pull out a duffel bag.

¶ 19          The trial court denied defendant's motion to quash and suppress. The court noted that

       this was "a unique set of circumstances" because of the terrorist watch list. It concluded that a

       faint odor was problematic but found that the additional conversations with Patterson provided

       probable cause to search.

¶ 20          Defendant filed a motion to reconsider the denial of the motion to quash and suppress.

       At the hearing, Morscheiser testified that he became aware that defendant was on the terrorist

       watch list through dispatch. Counsel then handed Morscheiser a computer-generated page of

       defendant's criminal history. Morscheiser testified that it was similar to the information he

       would have received on his computer and read the following statement from that page:

              "Contact terrorist screening center at 866-872-9001 during this encounter. If this

              would extend the scope or the duration of the encounter, contact the TSC

              immediately thereafter. If you are a border patrol Trooper, immediately call the

              NTC. Attempt to obtain sufficient identifying information during the encounter

              without otherwise extending the scope or duration of the encounter."




                                                        7
       He testified that the information may have appeared on his computer screen, but he could

       not remember. The trial court found that Morscheiser's testimony did not indicate that he

       responded inappropriately or in an untimely manner and denied the motion to reconsider.

¶ 21           At trial, the parties stipulated that the recovered substance was cannabis and weighed a

       total of 5,505 grams.      Defendant testified that he had gone to Keystone, Colorado, to go

       snowboarding and was going from Colorado back home to Massachusetts at the time he was

       stopped. When he was in Colorado, he stayed with a friend named Mark. Before defendant left,

       Mark asked defendant if he could throw a few things in the back of his truck. He said he would

       be in Boston in a few days and would pick the items up then. Defendant threw Mark the keys.

       Mark went out, came back inside, and gave defendant his keys. Defendant admitted that he

       smoked marijuana with Mark before he left. On his way back home, defendant realized that he

       no longer had the key for the back of the truck.

¶ 22           A jury found defendant guilty. The trial court sentenced him to seven years in prison and

       imposed a $55,000 street value fine.

¶ 23                                              ANALYSIS

¶ 24           Defendant first claims that the trial court erred in denying his motion to quash and

       suppress. He argues that Morscheiser impermissibly prolonged the stop beyond the time to

       complete the warning tickets and that the troopers lacked a separate fourth amendment

       justification for the search.

¶ 25           We review the trial court's ruling on a motion to suppress evidence under a two-part test.

       People v. Harris, 228 Ill. 2d 222, 230 (2008). The trial court's factual findings are entitled to

       deference and will be reversed only if they are against the manifest weight of the evidence. Id.




                                                          8
       The ultimate ruling of whether reasonable suspicion or probable cause exists and whether

       suppression is warranted are questions of law reviewed de novo. Id.

¶ 26          Our federal and state constitutions protect citizens from unreasonable searches and

       seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. In general, stopping a vehicle and

       detaining its occupants constitutes a seizure. Brendlin v. California, 551 U.S. 249, 255 (2007).

       A trooper is justified in stopping and briefly detaining a driver if he or she observes the driver

       commit a traffic offense. People v. Wofford, 2012 IL App (5th) 100138, ¶ 22.

¶ 27          A seizure that is lawful at its inception may become unlawful under the fourth

       amendment if (1) the duration of the stop is unreasonably prolonged, or (2) the officer's actions

       during the stop independently trigger the fourth amendment. Illinois v. Caballes, 543 U.S. 405,

       407-08 (2005). An investigative stop that is lawful at its inception must cease once reasonable

       suspicion dissipates, unless there is a separate fourth amendment justification to prolong the stop.

       People v. Baldwin, 388 Ill. App. 3d 1028, 1033 (2009). “Mere hunches and unparticularized

       suspicions are not enough to justify a broadening of the stop into an investigatory detention.”

       People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000). A routine traffic stop may not be used as a

       subterfuge to obtain other evidence based on an officer's suspicion. People v. Koutsakis, 272 Ill.

       App. 3d 159, 164 (1995).

¶ 28          Where a flyer or bulletin has been issued on the basis of articulable facts supporting a

       reasonable suspicion that the wanted person had committed an offense, reliance on that

       information justifies a stop to check identification, to pose questions to the person or to detain

       the person briefly while attempting to obtain further information. United States v. Hensley, 469

       U.S. 221, 232 (1985); see also People v. Ewing, 377 Ill. App. 3d 585, 593-94 (2007) (Hensley

       principles apply to communications sent through dispatch). Evidence recovered during the


                                                        9
       course of a bulletin stop is admissible if the stop is not significantly more intrusive than would

       have been permitted by the issuing department. Hensley, 469 U.S. at 233.

¶ 29          Here, Trooper Morscheiser stopped defendant for following too closely and improper

       lane usage. When he returned to his squad car, he received information that defendant was on a

       terrorist watch list. The record establishes that Morscheiser waited for approximately 23 minutes

       before dispatch reported back to him regarding defendant's watch list status. As Morscheiser

       completed the written warning tickets, the State Police dispatcher informed him that defendant

       was a low priority suspect. Trooper Morscheiser did not testify that he was still investigating the

       watch list issue when he returned to defendant’s vehicle. Instead, he stated that he had finished

       writing both warning tickets when he asked defendant to step out of the truck 30 minutes into the

       stop. Yet, the stop lasted an additional 22 minutes. It seems clear that the troopers prolonged the

       stop in an effort to obtain incriminating information from defendant. See Koutsakis, 272 Ill.

       App. 3d at 164.

¶ 30          With the warning tickets completed and the watch list issue resolved, the troopers needed

       an independent reason to lawfully extend the duration of the stop. The State maintains that the

       smell of burnt cannabis provided reasonable articulable suspicion to extend the stop. While the

       smell of burnt cannabis may be sufficient in some cases, in this case the arresting officer failed to

       supply the articulable facts necessary to support a fourth amendment intrusion. At the motion to

       suppress hearing, Trooper Morscheiser testified that he thought he smelled burnt cannabis, but he

       was not sure. His statements on the videotape of the stop were consistent with his vague

       statements at trial. On the videotape, Morscheiser told the dispatcher and Patterson that he

       thought he smelled an odor of burnt cannabis but was uncertain because of the way the wind was

       blowing. These facts support only a hunch or suspicion of illegal activity. They do not give rise


                                                        10
       to a reasonable and articulable suspicion that defendant was trafficking cannabis. Thus, the

       continued detention of defendant was a violation of his constitutional rights.

¶ 31          The State argues that Morscheiser's testimony coupled with Patterson statement that he

       smelled a masking agent provided reasonable suspicion to prolong the detention. We disagree.

       Although Patterson testified that he smelled the strong odor of a masking agent when he first

       approached the vehicle, he did not testify that he smelled the odor of cannabis or that the

       masking agent was a sign of contraband. When Patterson approached the truck a second time

       and asked defendant if he had marijuana, defendant stated that he did not. At that point, any

       reasonable suspicion that may have been generated by Morscheiser’s uncertain smell dissipated.

       Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an

       independent articulable suspicion to prolong the stop.

¶ 32                                            CONCLUSION

¶ 33          Defendant's motion to quash his arrest and suppress evidence should have been granted.

       Our holding renders the motion to suppress statements issue raised in defendant's brief moot.

       Because the State will be unable to prevail without the recovered evidence, we reverse

       defendant's conviction outright. See People v. Blair, 321 Ill. App. 3d 373, 380-81 (2001). The

       judgment of the circuit court of La Salle County is reversed.

¶ 34          Reversed.




                                                       11
