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,

(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.

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

suppression is warranted are questions of law reviewed de novo.

¶ 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,

(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,

, ¶ 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,

(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,

(2009). “Mere hunches and unparticularized

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

People v. Ruffin,

(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,

(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,

(1985); see also People v. Ewing,

(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,

.

¶ 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,

.

¶ 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,

(2001). The

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

¶ 34 Reversed.

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