The Traffic Stop
State trooper stops Defendant on the highway for crossing the yellow line and following too closely. About 20 or 30 minutes into it, the tickets are written out and the trooper still has Defendant’s DL.
“Get Out”
But before giving Defendant the paper work and returning his DL, the trooper asks him to get out his truck. Also, he had called for the drug dog before getting him out of the car.
Trooper tells defendant that he smelled cannabis in the vehicle. He asked defendant to explain why he smelled cannabis. Defendant says that there was probably an odor of cannabis on his clothes. He also admitted that he had a “bowl” in the center console.
Why Did the Stop Take So Long?
Oh yea, defendant was on the terrorist watch list. Cop had to make several calls to the feds and was working on confirming Defendant’s identity. The trooper knew, before he gets him out of the car, that the feds cleared Defendant.
What They Find?
Prior to the dog arriving, the trooper 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 5,505 grams of marijuana.
Did the Trooper Really Smell Anything?
The trooper who stops defendant testified that he could smell a faint odor of cannabis when he first approached the truck. On the squad video he 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 search the vehicle. I’m not 100% sure about that.”
A second trooper testified that he only smelled a masking agent. Said it smelled like freshly sprayed deodorant. This trooper also had two separate conversations with Defendant. Each time Defendant denied having cannabis in the truck (this was before the get him out the car and he finally admits to the pipe).
Law
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.
See 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. See 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).
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. See 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 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.
Analysis
Prolonging the Stop Means Illegal Traffic Stop
The record establishes that the trooper waited for approximately 23 minutes before dispatch reported back to him the Defendant was not wanted by the feds. Rather than returning his DL and giving him the tickets, at that point, the trooper gets defendant out of the truck. All of this was done 30 minutes into the stop.
The stop lasted an additional 22 minutes after tickets are written. It seems clear that the troopers prolonged the stop in an effort to obtain incriminating information from defendant.
What About Smell of Weed?
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.
Trooper 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, the trooper told the dispatcher that he thought he smelled an odor of burnt cannabis but was uncertain because of the way the wind was blowing.
The second trooper did not testify that he thought the “masking agent” was a sign of contraband. Second trooper then asks Defendant directly if he has marijuana. Defendant says no. At that point, any reasonable suspicion that may have been generated by first trooper’s uncertain smell dissipated.
Holding
These facts support only a hunch or suspicion of illegal activity. They do not give rise to a reasonable and articulable suspicion that defendant was trafficking cannabis. Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an independent articulable suspicion to prolong the stop. The continued detention of defendant was a violation of his constitutional rights.