                                           2014 IL App (3d) 120431

                                 Opinion filed June 9, 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 14th Judicial Circuit,
                                                        )          Henry County, Illinois.
             Plaintiff-Appellee,                        )
                                                        )          Appeal No. 3-12-0431
             v.                                         )          Circuit No. 10-CF-441
                                                        )
     KARL R. LITWHILER,                                 )
                                                        )          Honorable Ted J. Hamer,
             Defendant-Appellant.                       )          Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Presiding Justice Lytton and Justice Carter concurred in the judgment and opinion.

                                                  OPINION

¶1          The State charged and convicted defendant, Karl Litwhiler, of controlled substance

     trafficking (720 ILCS 570/401.1 (West 2010)), unlawful possession with intent to deliver a

     controlled substance (720 ILCS 570/401(a)(11) (West 2010)), and unlawful possession of a

     controlled substance (720 ILCS 570/402(a)(11) (West 2010)). The circuit court of Henry County

     sentenced defendant to 12 years' incarceration. Defendant appeals his convictions, claiming the

     trial court erred in denying his motion to suppress the evidence, as the State failed to provide

     proper indicia of reliability regarding a drug dog's alert.

¶2                                         BACKGROUND
¶3          Defendant's conviction stems from a traffic stop during which a police officer found him

     in possession of 27.46 pounds of psilocybin mushrooms, a controlled substance. The stop

     occurred on December 11, 2010, on Interstate 80.

¶4          At defendant's preliminary hearing, Sergeant Floyd Blanks of the Illinois State Police

     testified that he was performing stationary radar patrol on Interstate 80 when he observed a white

     sport utility vehicle (SUV) traveling toward his location at a velocity that appeared to exceed the

     65-mile-per-hour speed limit. He activated his radar, which showed the vehicle traveling at 72

     miles per hour, so he effectuated a traffic stop.

¶5          Blanks noted defendant was driving the vehicle, which was a rental. Defendant's hands

     began to shake and defendant showed signs of nervousness. Dressed in a suit and tie, defendant

     explained to Blanks that he was traveling across the country. Blanks observed a large Disney

     princess box in the cargo area of the SUV.

¶6          Blanks stated that minutes later, Trooper Andrew Fratzke arrived with his canine, Viper,

     and conducted a free-air sniff of the outside of the SUV. Viper alerted; the officers searched the

     SUV, finding almost 30 pounds of psilocybin mushrooms inside the Disney princess box. The

     defendant subsequently stated that he agreed to transport 28 pounds of psilocybin mushrooms for

     $2,500 and also explained that he had a cannabis cigarette in his shoe.

¶7          Defendant filed a motion to suppress the evidence obtained at the search, and the matter

     proceeded to a hearing on defendant's motion. At the hearing, defendant testified that he was

     traveling from Portland, Oregon, to New York when he was stopped. He claimed to be traveling

     at 64 miles per hour at the time of the stop. Knowing he was transporting illegal narcotics, he set

     his cruise at 64 miles per hour so he would not be stopped for speeding. He was traveling

     downhill when he spotted Sergeant Blanks' squad car parked in the median. He checked the



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       speedometer and did not notice any fluctuation in his speed. He neither touched his brakes nor

       altered his speed.

¶8            Trooper Fratzke testified that he has been a canine handler for 11 to 12 years. He

       explained that when a dog is paired with a handler, the two attend a 10-week training session in

       which the dog is taught apprehension, tracking, and the detection and recognition of different

       scents and odors of contraband. Viper was trained to identify the odor of marijuana, cocaine,

       crack cocaine, methamphetamines, and heroin. At the end of the training period, Viper was

       certified to engage in narcotics and apprehension work. Fratzke was certified as Viper's handler.

       When asked if he and Viper held "some sort of certification," Fratzke responded, "Yes, we are.

       We were both     we were both certified. I was certified as a handler, and two times a year Viper

       was certified as a K-9 to do narcotic and apprehension work."

¶9            Fratzke noted Viper's alert method is to scratch the area from which the detected odor

       emanates, which is an aggressive alert as opposed to a passive alert. Fratzke and Viper

       conducted two passes around the vehicle. On the first pass, he noticed a change in Viper's

       breathing and that Viper squared to the vehicle. Fratzke noted that as he was "walking towards

       the passenger side of the vehicle, he scratched, giving me a positive K-9 alert."

¶ 10          Fratzke stated that he reviewed the video of the stop, which showed that Viper "did

       scratch on his first pass." Fratzke stated that on the second pass "as he came to the rear of the

       vehicle again, he sniffed, was sniffing near the rear hatch, squaring his body up to it. At this

       point he wasn't wanting to leave the rear hatch, staying right there, and then      you know in kind

       of a frustration type deal for him. You know, he's in the odor, he's not wanting to leave the

       vehicle, and I'm still walking past him. He started barking at me at this point."




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¶ 11          Fratzke testified that as Viper got older, his alert changed to more of a passive alert where

       he would square up to the odor and stay in the area. Due to deterioration of his spine and rear

       legs, he would not always scratch. Instead, he would bark and just keep looking at the same

       spot. Fratzke stated that his "main focus" was always to observe Viper's breathing and look for

       changes in breathing and body posture. Viper passed away in April of 2011, approximately four

       months after this stop.

¶ 12          Fratzke claimed that Viper's reliability stayed consistent as he got older, possibly

       becoming more reliable with age. He was able to follow Viper's keys when an odor was detected

       through the many years the two worked together. Fratzke did not believe Viper's ability

       changed, only that Fratzke became more aware of Viper's keys.

¶ 13          Fratzke doubted whether Viper could have alerted on the marijuana in defendant's sock.

       The defendant sat in Blanks' squad car during the sniff and, given Viper's training in

       apprehension, Fratzke would not have placed the dog close enough to defendant to alert on the

       marijuana on defendant's person. After Viper alerted on the vehicle, the officers conducted a

       search and found the contraband.

¶ 14          Blanks testified that at the time of the stop, his radar unit was properly calibrated, had

       been tested, and was operating accurately. No other vehicles were in the vicinity of the SUV.

       The radar indicated that the SUV was traveling 72 miles per hour. The posted speed limit was

       65 miles per hour.

¶ 15          The trial court continued the hearing after Blanks' testimony for discovery purposes.

       When it resumed, Fratzke again testified, noting that his training with Viper took place at the

       Illinois State Police academy. He reiterated that Viper alerted to the "bumper center tailgate area

       *** in the region of the rear of the vehicle." He noted canines are not perfect. Normally, he



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       would not ask a driver for consent to search a vehicle when Viper failed to alert to the vehicle, as

       he had complete faith in Viper. Viper was not trained to detect the odor of psilocybin

       mushrooms.

¶ 16          Blanks also testified when the hearing continued, stating that the video recording

       accurately depicted the stop and search. The trial court admitted the recording into evidence

       without objection. The defendant provided exhibits consisting of documents received from the

       State regarding Viper's training and performance. These documents indicate that in

       approximately one-third of Viper's field alerts, law enforcement found no contraband during

       searches.

¶ 17          Following argument, the trial court found that defendant had properly shifted the burden

       to the State during the suppression hearing to justify the stop and warrantless search. The State

       argued that the evidence indicated the stop was justified due to defendant's speeding, that Viper

       was well trained and certified as a narcotics dog, and that the alert is very clear on the video.

       Therefore, the State claimed it satisfied its burden of proving a justification for the search and

       seizure.

¶ 18          Ultimately, the trial court found that the stop was justified as defendant had been

       speeding. The court continued, finding that Viper went through the 10-week training course,

       resulting in his certification to detect odors of narcotics. The court found Viper, at the time of

       the stop, was a reliable canine for the purposes of detecting the odor of the illegal narcotics that

       he had been trained to detect. The court concluded that Viper's alert provided probable cause to

       search the SUV and, therefore, denied the motion to suppress.

¶ 19          The matter proceeded to a stipulated bench trial. Defendant did not stipulate to his guilt

       or the sufficiency of the evidence, only that if called to, the State could produce witnesses who



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       would testify consistent with the testimony described above. The State added facts indicating the

       contraband had been tested at the Illinois State Police forensic science laboratory in Morton,

       Illinois. The tests revealed that the contraband was found to be psilocybin, a controlled

       substance, weighing 13,620 grams or 27.46 pounds.

¶ 20          Defendant renewed his objection to the evidence on the same grounds as his motion to

       suppress. The trial court then found defendant guilty of all charges. At sentencing, the charges

       were merged, concluding with the trial court sentencing defendant to 12 years' incarceration on

       the most serious charge of controlled substance trafficking. The court imposed fines totaling

       $35,000. The court also allowed defendant to remain free on bond pending appeal. Defendant

       filed his notice of appeal the same day.

¶ 21                                           ANALYSIS

¶ 22          The sole issue raised on appeal is whether the trial court erred in denying defendant’s

       motion to suppress. Defendant argues that he produced sufficient evidence to bring into question

       Viper's reliability, thereby shifting the burden to the State to produce evidence that Viper was, in

       fact, reliable so that Viper's alert could provide officers probable cause to search his vehicle.

       This burden, defendant claims, the State failed to meet and, as such, the trial court erred in

       denying his motion to suppress the fruits of the stop.

¶ 23          In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a two-part

       standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). "Under this standard, a

       trial court’s findings of historical fact should be reviewed only for clear error, and a reviewing

       court must give due weight to any inferences drawn from those facts by the fact finder." Id. "In

       other words, we give great deference to the trial court’s factual findings, and we will reverse

       those findings only if they are against the manifest weight of the evidence." Id. However, we



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       review de novo the trial court’s ultimate legal ruling as to whether suppression was warranted.

       Id.

¶ 24                                       A. Florida v. Harris

              The parties agree that the United States Supreme Court recently articulated the test to be

       used to determine "if the 'alert' of a drug-detection dog during a traffic stop provides probable

       cause to search a vehicle" in Florida v. Harris, 568 U.S. ___, ___, 133 S. Ct. 1050, 1053 (2013).

       The Harris Court specifically rejected the Florida Supreme Court’s requirement that "the State

       must in every case present an exhaustive set of records, including a log of the dog’s performance

       in the field, to establish the dog’s reliability." Id. at ___, 133 S. Ct. at 1053. Instead, the Harris

       Court preferred a " 'flexible, common-sense standard' of probable cause." Id. at ___, 133 S. Ct.

       at 1053 (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)).

¶ 25          The Harris Court reiterated long-standing law, which holds that a police officer has

       probable cause to conduct a search when the facts available to him would warrant a person of

       reasonable caution in the belief that contraband or evidence of a crime is present. Id. at ___, 133

       S. Ct. at 1055. This test is not reducible to a precise definition or quantification, and finely tuned

       standards such as proof beyond a reasonable doubt or by a preponderance of the evidence have

       no place in the probable cause decision. Id. at ___, 133 S. Ct. at 1055. "All we have required is

       the kind of 'fair probability' on which 'reasonable and prudent [people,] not legal technicians,

       act.' " Id. at ___, 133 S. Ct. at 1055 (quoting Gates, 462 U.S. at 238). To determine whether the

       State has met this practical standard, courts consistently look to the totality of the circumstances

       and reject rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible

       approach. Id. at ___, 133 S. Ct. at 1055-56.




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¶ 26           With this as a backdrop, the Harris Court scolded the Florida Supreme Court for creating

       a "strict evidentiary checklist, whose every item the State must tick off." Id. at ___, 133 S. Ct. at

       1056.

¶ 27           The Harris Court also discussed the problems inherent in relying on a dog’s field

       performance to determine the dog’s accuracy. Id. at ___, 133 S. Ct. at 1056. The Court noted

       that a dog may properly alert to contraband too well hidden for the officers to ultimately find.

       Or, conversely, the dog may fail to alert where contraband is present. In many cases where the

       dog does not alert, the officers may not search the car so the false negative is never documented.

       Id. at ___, 133 S. Ct. at 1056-57. Field alerts where narcotics are too well hidden and the

       described false negatives led the Court to state that the "better measure of a dog’s reliability thus

       comes away from the field, in controlled testing environments." Id. at ___, 133 S. Ct. at 1056-

       57.

                              “For that reason, evidence of a dog’s satisfactory performance

                      in a certification or training program can itself provide sufficient reason

                      to trust his alert. If a bona fide organization has certified a dog after

                      testing his reliability in a controlled setting, a court can presume (subject

                      to any conflicting evidence offered) that the dog’s alert provides probable

                      cause to search. The same is true, even in the absence of formal

                      certification, if the dog has recently and successfully completed a

                      training program that evaluated his proficiency in locating drugs. After

                      all, law enforcement units have their own strong incentive to use effective

                      training and certification programs, because only accurate drug-detection

                      dogs enable officers to locate contraband without incurring unnecessary



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                      risks or wasting limited time and resources.” Id. at ___, 133 S. Ct. at 1057.

¶ 28          After reciting the various training courses the dog in Harris had been through, the Court

       found that the officer "had good cause to view Aldo as a reliable detector of drugs. And no

       special circumstance here gave [the officer] reason to discount Aldo's usual dependability or

       distrust his response to [defendant's] truck." Id. at ___, 133 S. Ct. at 1059. The Court further

       noted that defendant failed to question specific aspects "of Aldo's training" at the trial court level

       and, as such, the arguments were forfeited. Id. at ___, 133 S. Ct. at 1058.

¶ 29                                      B. Defendant's Claims

¶ 30          Initially, we must note that defendant asks us to review the video of the traffic stop and

       conclude that Fratzke "cued" Viper to alert on the vehicle. Defendant failed to make this claim

       below and, as such, it is forfeited. Id. at ___, 133 S. Ct. at 1058-59. During the suppression

       hearing, the court reviewed the video of the traffic stop, yet defendant made no argument

       regarding "cuing." Moreover, defendant failed to ask Fratzke any questions related to this new

       cuing argument. We find the argument forfeited.

¶ 31          As noted above, defendant claims he shifted the burden at the suppression hearing to the

       State by his testimony that he was not speeding and further by questioning Viper's reliability.

       While a defendant bears the burden during a motion to suppress of establishing a prima facie

       case that he was doing nothing unusual to justify the intrusion of a warrantless search or seizure

       (People v. Linley, 388 Ill. App. 3d 747, 749 (2009)), if a defendant makes the required showing,

       the burden shifts to the State to present evidence to justify the search and seizure. Id.

¶ 32          The trial court stated below, "Let's get back to the stop. He testified he wasn't speeding,

       and that was the initial reason for the stop. *** So that in itself would shift the burden since he's

       testified to it." Sergeant Blanks' testimony disputed defendant's claim that he was not speeding.



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       Blanks testified that he initiated the stop after his radar indicated defendant's vehicle was

       traveling at 72 miles per hour in a 65-mile-per-hour zone.

¶ 33          Clearly, what weight to ascribe the disputed testimony regarding speeding is within the

       purview of the trial court, which we will not disturb unless it amounts to clear error. Luedemann,

       222 Ill. 2d at 542. The trial judge stated that he found Trooper Blanks' testimony credible and

       "that there was probable cause to stop Mr. Litwhiler's car."

¶ 34          Defendant argued below, and stresses to this court, that he adduced evidence showing

       Viper was not sufficiently reliable in the area of narcotics detection. As such, defendant claims

       he made a prima facie showing that police were without probable cause to search his vehicle.

       Defendant continues that since the State failed to produce any evidence regarding Viper's results

       during controlled narcotics detection exercises, the State failed to meet its burden, and the trial

       court erred in denying his motion to suppress. We disagree.

¶ 35          Trooper Fratzke testified that he and Viper completed a 10-week training program at the

       end of which he became a certified handler of Viper, and Viper became certified to "do narcotic

       and apprehension work." Fratzke stated that Viper's success rate remained constant throughout

       the dog's life and, if anything, increased toward the end of the dog's career. Defense counsel

       asked Trooper Fratzke whether Viper's alert method was changed during the "training, though,

       that Viper went through throughout his entire career." Fratzke stated it had not been changed.

       When discussing the certification process, Fratzke noted that "two times a year Viper was

       certified as a K-9 to do narcotic and apprehension work."

¶ 36          As noted by the Harris Court, "If a bona fide organization has certified a dog after testing

       his reliability in a controlled setting, a court can presume (subject to any conflicting evidence

       offered) that the dog's alert provides probable cause to search." Harris, 568 U.S. at ___, 133 S.



                                                        10
       Ct. at 1057. Our supreme court has noted that we "must review the trial court's factual

       determination that the police dog *** was well trained and sufficiently reliable that his alert gave

       the police probable cause to search" as any other factual issue and, as such, "the ruling will not

       be disturbed on appeal unless it is manifestly erroneous." People v. Caballes, 221 Ill. 2d 282,

       289 (2006).

¶ 37          Defendant does not dispute that the Illinois State Police, the entity which certified Viper

       and Fratzke, is a bona fide organization. The certification alone allows the court to "presume"

       (Harris, 568 U.S. at ___, 133 S. Ct. at 1056-57) that the dog was sufficiently reliable and

       protects against any subsequent holding that the trial court's determination of reliability is

       manifestly erroneous. The State adduced additional evidence, however, from Trooper Fratzke

       regarding Viper's reliability. Fratzke stated that Viper was certified twice a year, that Viper's

       reliability remained constant or actually increased as Viper aged, and that his alert method never

       changed despite the "training" he endured "throughout his entire career."

¶ 38          Defendant acknowledged in his reply brief that Viper's "training records were provided

       by the Attorney General," yet counsel focused on only Viper's field alert records at the

       suppression hearing. These records indicated that 66% of the time Viper alerted, narcotics were

       found. Again, as the Court noted in Harris, the mere fact that narcotics were not found the other

       33% of the time does not mean that Viper was unreliable, as he could have alerted on residual

       odors or the narcotics could have been so well concealed as to avoid detection during a search.

       Harris, 568 U.S. at ___, 133 S. Ct. at 1056-57.

¶ 39          Defendant claims neither Fratzke's testimony nor the field alert statistics are sufficient to

       satisfy the State's burden of proving Viper's reliability. Defendant suggests only the results of

       controlled tests could possibly have satisfied the State's burden. We disagree.



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¶ 40          Defendant's approach is the exact type of "strict evidentiary checklist" which the Florida

       Supreme Court created, only to be rejected by the Harris Court. Id. at ___, 133 S. Ct. at 1056.

       We find the record contains sufficient evidence of Viper's reliability and, as such, the trial court

       did not err in denying defendant's motion to suppress.

¶ 41                                         CONCLUSION

¶ 42          For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed.

¶ 43          Affirmed.




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