Information provided for educational purposes only and is not intended as legal advice. Please seek your legal department
or State's Attorney's office for interpretation of law.
Consent Search Related to Vehicle Stops (Caballes)
After the U.S. Supreme Court decided Illinois v. Caballes, 543 U.S. 405
(2005) and Muehler v. Mena, 544 U.S. 93 (2005), it was clear that Illinois
courts would have to decide several important issues relevant to law
enforcement.
In Caballes, the vehicle was lawfully stopped for a traffic offense. The officer had no
reasonable suspicion to believe that the vehicle contained drugs. While the officer was
writing out the traffic ticket, a canine arrived and alerted on the vehicle for the presence
of drugs. A search was conducted and drugs were seized. Initially, the Illinois Supreme
court ruled that having the canine arrive to do a drug sniff was unjustified because it was
not based on reasonable suspicion and it expanded the scope of the stop. The U.S.
Supreme Court disagreed (and later the Illinois Supreme court acquiesced) and held that
if a traffic stop is proper, police action that does not unreasonably prolong the stop nor
independently trigger the 4th Amendment is permissible, even if it goes beyond the scope
of the stop. So, police would not need reasonable suspicion to have a canine come to the
location of a traffic stop to see if drugs are present in the vehicle, but the stop must not be
unreasonably prolonged (ie, we cannot make that traffic stop take longer waiting on the
canine to arrive). The Illinois Supreme court has continued to follow this legal analysis
and in another case that is factually similar to Caballes, the Illinois Supreme Court held
that the canine sniff did not violate the 4th Amendment (see People v. Driggers, 222
Ill.2d 65 (2006)).
In Muehler, police detained, handcuffed, and questioned several occupants of a
residence when the police were executing a search warrant. The Court held that given the
legitimate law enforcement concern, it was permissible and reasonable under the 4th
Amendment to handcuff, detain and to question for several hours the occupants, even if
the questioning was in regard to immigration status. The rationale in this case was
followed by an Illinois Appellate court in People v. Conner, 358 Ill.App.3d 945 (1st Dist.
2005).
Based on these cases, the Illinois Appellate courts have begun to decide other important
issues with regard to consent searches and vehicle stops. Here is a brief summary of the
three significant decisions:
People v. Starbuck, 358 Ill.App.3d 234 (3rd Dist. 2005) a police officer
responded to a call that the defendant was at a residence and because the defendant’s wife
had obtained an OP protecting that residence, the defendant needed to be served with the
OP. Previously that day the wife had told police that the defendant always carried a gun
under the front seat of his truck. Defendant was served with the OP, told he could not be
at that location, and was told he was free to leave. The officer then asked for consent to
conduct a pat down on the defendant and to search the defendant’s truck for the officer’s
personal safety. The search revealed an unloaded gun under the driver’s seat, a
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Information provided for educational purposes only and is not intended as legal advice. Please seek your legal department
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magazine clip in the glove box, and a crack pipe with residue. The appellate court ruled
that under these circumstances, the officer was justified in asking for consent to search
the defendant’s vehicle for the protection of the officer and others at the scene.
People v. Roberson, 367 Ill.App.3d 193 (4th Dist. 2006) a police officer made a
lawful traffic stop in which Roberson was the driver of the vehicle. The officer asked the
passenger for his name and once obtaining his name (Anthony Evans), he ran a check for
warrants. Evans had an outstanding warrant and was arrested on the warrant. A search
incident to arrest of the vehicle revealed contraband and Roberson was also arrested. The
court ruled that (1) it was permissible for the officer to perform a warrant check on the
passenger (even though he had done nothing wrong) and that it did not improperly extend
beyond the scope of the traffic stop; and (2) the passenger has no legitimate privacy
interest in concealing the existence of a warrant.
NOTE: People v. Roberson was decided after the U.S. Supreme Court had overruled
People v. Harris, which had been the Illinois case making it impermissible to perform a
warrant check on a passenger that had done nothing wrong. Harris was overruled
officially by the IL Supreme Court on March 20, 2008 (see summary of the IL Supreme
Court opinion below).
People v. Starnes, 374 Ill.App.3d 329 (2nd Dist. 2007), a Rockford police officer
made a lawful traffic stop and she observed the driver make a “furtive movement.” She
did describe in detail the movement she saw the driver make as she was pulling over the
vehicle. She asked for consent to search his person and the vehicle and he consented to
both. She located a large sum of money in his pocket, which she thought was unusual
since he had previously indicated he only had a temporary job. In the vehicle she located
baggies containing what she suspected was cannabis. The court ruled that there was no
4th Amendment violation and that the warrantless search was permissible because the
defendant consented to the search.
People v. Terry, (4th District, Filed on 2/26/08) a police officer made a traffic stop
on a vehicle that had a rear registration light out. The officer made contact with the
driver. The officer noticed that the passenger, the defendant, did not have his seat belt on
and the officer asked for his identification. As the officer was running the information,
he noticed the defendant making several movements as if to hide something. Another
officer arrived and later asked for consent to search the defendant. The defendant did not
respond verbally to the officer, but got into position to be searched and said “you got to
go ahead and do what you got to do.” The officer located crack cocaine in the
defendant’s right jacket pocket. After the Caballes decision, and pursuant to the Illinois
Supreme Court’s supervisory order, the 4th Appellate jurisdiction reconsidered this case
and held that the traffic stop was lawful, that the questioning of the defendant was
constitutionally permissible and that the consent was voluntary.
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Information provided for educational purposes only and is not intended as legal advice. Please seek your legal department
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IL SUPREME COURT CASES
People v. Harris, Docket No. 103796, IL S.Ct. opinion filed on 3/20/08
The IL Supreme Court remanded the case to the appellate court for reconsideration in
light of Caballes. The appellate court stood by its earlier judgment and the IL S.Ct.
allowed the State’s petition for leave to appeal. The IL S.Ct. held that the request that the
defendant (passenger in a vehicle that was stopped; passenger was not believed to be
engaged in criminal activity) provide identification and the subsequent warrant check
using information obtained from the defendant did not violate his rights under the 4th
Amendment.
People v. Cosby; People v. Mendoza, Docket Nos. 100681 and 102584
The cases were consolidated and the IL Supreme Court decided them together. The facts
and procedural history are as follows:
COSBY
Cosby was stopped for no rear license plate light. Cosby provided a speeding ticket and
proof of insurance. The officer called for back-up in anticipation of asking for consent to
search Cosby and his vehicle. The officer returned to Cosby’s vehicle and gave Cosby
his speeding ticket/proof of insurance and a written warning for the rear registration
light. The officer asked Cosby for consent to search the vehicle and his person. Cosby
agreed to a search of his person and to the vehicle. The officer found a crack pipe in the
car’s center console; Cosby was arrested and taken to the police station. Cosby called his
wife to come post bond; while the officer was giving Cosby his property back, the officer
discovered 4 rocks of crack cocaine hidden in a cigarette package.
The Appellate court ruled that the questioning of Cosby and the search of the car were
unrelated to the circumstances justifying the stop; that the officer lacked any reasonable,
articulable suspicion that would support further detention; and that the officer’s actions
impermissibly prolonged Cosby’s detention and changed the fundamental nature of the
stop. This decision was appealed to the IL SCt.
MENDOZA
Mendoza was stopped for having a tinted rear license plate cover and for having a
bandana large enough to obstruct the rearview mirror. Mendoza provided his DL and
proof of insurance. Based on the information the officers had about Mendoza being an
“affiliate” of the Vice Lords gang, and the red bandana, the officers were concerned he
might have a firearm. One officer approached on the driver’s side and returned
Mendoza’s DL and proof of insurance to give Mendoza a verbal warning and to ask for
consent to search the vehicle. Mendoza refused consent. The officer told him he was
free to leave. The other officer had approached on the passenger side of the vehicle and
shined his flashlight into the vehicle, noticing the butt of a gun sticking out from under
the driver’s seat between Mendoza’s feet. This officer tried to get the other officer’s
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attention, but the other officer told Mendoza he was free to leave. As Mendoza was
leaving, the officer alerted his partner to the presence of the gun inside the vehicle. The
officer yelled for Mendoza to stop, but he didn’t, so they got into their squad car and
stopped him again. The officers said they could see his head and shoulders moving, but
they couldn’t tell what he was doing. Mendoza stopped, was ordered out of the vehicle,
and then the officers handcuffed and patted him down. A search of vehicle revealed a
gun underneath a plastic tray in the center console of the car (not underneath the driver’s
seat where the officer had first observed the weapon).
The Appellate court affirmed the trial court’s motion to suppress the evidence, stating the
questioning amounted to a second seizure and the officers had no reasonable suspicion
nor probable cause to believe Mendoza had committed or was about to commit a crime to
support the second seizure. This decision was appealed to the IL SCt.
IL SUPREME COURT:
COSBY
The court found that the request for consent to search in both cases was followed by the
officers’ returning of the defendants’ paperwork; at that point the traffic stop came to an
end. The court then framed the issue as whether the officers’ actions after the initial
traffic stops had concluded constituted a second seizure of either defendant. The court
reviewed the case based on its prior court decision in Brownlee and the US SCt case U.S.
v. Mendenhall.
The court looked at the circumstances surrounding the traffic stop of Cosby and pointed
out that the officer explained the nature of the written warnings for no license plate light,
gave him back his paperwork, and then asked to search the vehicle. The court rejected
the defendant Cosby’s argument that a reasonable person would have not felt free to
leave. The court distinguished the facts in Cosby from their decisions in Brownlee and
Bunch, in which the court had ruled the conduct amounted to a seizure. (Note:
Brownlee: two officers approached the vehicle gave the driver his paperwork and then
waited 2 minutes without saying anything before asking for consent to search the vehicle;
Bunch: the driver was removed from the vehicle, directed to stand at the rear of the
vehicle alongside the handcuffed driver; the officer shined his flashlight into the
defendant’s face while questioning him). The court ruled that Cosby was not seized and
that his consent to search his car was voluntary.
MENDOZA
Applying a similar analysis, the court ruled that the officer had probable cause to stop
Mendoza the first time and that the stop had come to an end prior to the questioning for
consent. The court also ruled he was not unlawfully seized and that the subsequent
discovery of the gun, the second stopping of Mendoza’s car, and the search of the car did
not violate Mendoza’s 4th Amendment rights.
END OF DOCUMENT
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