{ "id": 3365369, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BETTY LaPOINT, Defendant-Appellant", "name_abbreviation": "People v. LaPoint", "decision_date": "2004-10-29", "docket_number": "No. 3\u201402\u20141002", "first_page": "328", "last_page": "337", "citations": [ { "type": "official", "cite": "353 Ill. App. 3d 328" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "519 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11594631 ], "weight": 3, "year": 1996, "opinion_index": 0, "case_paths": [ "/us/519/0033-01" ] }, { "cite": "331 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209211 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0022-01" ] }, { "cite": "335 Ill. App. 3d 321", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637059 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "324", "parenthetical": "observing that \"[i]t is difficult to imagine many cases in which a motorist would voluntarily remain at the scene of a traffic stop to engage the officer in casual conversation\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0321-01" ] }, { "cite": "264 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680672 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0213-01" ] }, { "cite": "186 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243856 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-2d/186/0501-01" ] }, { "cite": "322 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126389 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0169-01" ] }, { "cite": "713 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "813" }, { "page": "97-98" }, { "page": "1774" } ], "opinion_index": 1, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "432 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "holding that consent may be involuntary where defendant must choose between consenting and being arrested" } ], "opinion_index": 1 }, { "cite": "104 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5476778 ], "year": 1982, "pin_cites": [ { "parenthetical": "holding that consent may be involuntary where defendant must choose between consenting and being arrested" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/104/0297-01" ] }, { "cite": "591 N.E.2d 918", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "227 Ill. App. 3d 1040", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793161 ], "year": 1992, "pin_cites": [ { "page": "1046-47" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/227/1040-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "554" }, { "page": "509" }, { "page": "1877" } ], "opinion_index": 1, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "536 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254966 ], "weight": 3, "year": 2002, "opinion_index": 1, "case_paths": [ "/us/536/0194-01" ] }, { "cite": "501 U.S. 429", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108039 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "439" }, { "page": "401" }, { "page": "2389" }, { "page": "434-35" }, { "page": "398" }, { "page": "2386" } ], "opinion_index": 1, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "519 U.S. 33", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11594631 ], "weight": 21, "year": 1996, "pin_cites": [ { "page": "43" }, { "page": "357" }, { "page": "423", "parenthetical": "Ginsberg, J., concurring." } ], "opinion_index": 1, "case_paths": [ "/us/519/0033-01" ] }, { "cite": "186 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243856 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/186/0501-01" ] }, { "cite": "322 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126389 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/ill-app-3d/322/0169-01" ] } ], "analysis": { "cardinality": 1025, "char_count": 23656, "ocr_confidence": 0.719, "pagerank": { "raw": 1.0566565354370861e-07, "percentile": 0.5555153987742143 }, "sha256": "f3682f12128d65bd153b6edaa5eaaedaa52b9d4a2cb692a9b532d43b037e8fec", "simhash": "1:383d1b0f2adf0c82", "word_count": 3983 }, "last_updated": "2023-07-14T16:37:49.624900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BETTY LaPOINT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nBetty LaPoint was charged with cannabis trafficking (720 ILCS 550/5.1(a) (West 2002)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(g) (West 2002)). She filed a motion to suppress the cannabis, alleging that it was obtained through an unreasonable search and seizure in violation of the federal and state constitutions (U.S. Const., amend. IV; Ill. Const. 1970, art. I, \u00a7 6). The judge denied both her motion to suppress and her subsequent motion to reconsider. The matter then proceeded to a jury trial where LaPoint was found guilty on both charges. The judge sentenced her to concurrent prison terms of 12 years (trafficking) and 8 years (possession).\nIn this appeal, LaPoint claims that: (1) the judge erred in denying her motion to suppress, and (2) the State\u2019s evidence at trial was insufficient to prove her guilty beyond a reasonable doubt. We agree with her first claim and reverse her convictions on that basis.\nBACKGROUND\nThe sole witness at the suppression hearing was Steve Eller, a La Salle County sheriff\u2019s deputy. Eller testified that on April 17, 2000, at about 3:20 a.m., he was driving eastbound on Interstate 80 and observed two vehicles traveling eastbound in front of him. The lead vehicle, a blue Saturn with New York license plates, was weaving inside its lane of traffic. The second vehicle moved into the adjacent lane to pass the Saturn, and the Saturn drifted over and nearly hit the second vehicle. Then the Saturn continued weaving and drifted onto the shoulder of the road. Eller activated his overhead lights at that time.\nThe Saturn pulled over and stopped in a prompt and safe manner. Eller exited his squad car and approached the Saturn on foot. When he looked inside the Saturn, he did not see any contraband in plain view, but he noticed a passenger lying on the backseat. He spoke with the driver (LaPoint) and announced why he made the stop. LaPoint explained that she was tired and looking for somewhere to stop and rest. Eller asked for her driver\u2019s license and vehicle registration papers, and she provided the documents. The registration papers showed that the Saturn had been rented by a woman named Mary Bailey. Eller questioned LaPoint about the vehicle\u2019s ownership, and the information she provided was consistent with the information on the rental papers.\nEller also asked LaPoint where she was traveling from. Although LaPoint was driving eastbound, she said she was traveling from New York. Eller clarified his question by asking where she was coming from \u201cat this present time.\u201d LaPoint exhibited difficulty naming a location, so Eller asker her to simply name the state. He mentioned Idaho, and she said she was not traveling from Idaho. Then he mentioned Iowa, and she confirmed that she was traveling from Iowa.\nNext, Eller questioned LaPoint about why she went to Iowa in the first place. She said she was transporting one of Mary Bailey\u2019s friends. Eller asked why Bailey had not taken the friend herself, and LaPoint explained that Bailey and the friend had been in an argument. Eller asked LaPoint how long she had stayed in Iowa, and she said two days. He asked if she had ever been arrested or been in trouble, and she said no. He also asked if she had any illegal items in the vehicle, and she said no. Eller testified that LaPoint appeared to be nervous during his questioning, but he acknowledged that motorists tend to be \u201cslightly nervous\u201d during traffic stops.\nAfter questioning LaPoint, Eller returned to his squad car and ran checks on her driver\u2019s license, criminal history, and the rental papers. He discovered that the driver\u2019s license and rental agreement were valid. The criminal history check revealed that LaPoint had been arrested numerous times, but that no warrants were outstanding for her arrest. During the stop, Eller did not know how old LaPoint\u2019s prior arrests were; he later discovered that they were \u201crelatively old\u201d (one was 20 years old). He ultimately decided to give LaPoint a warning ticket for driving outside her lane of traffic. After preparing the ticket, he exited his squad car and reapproached the Saturn while holding LaPoint\u2019s driver\u2019s license, the rental papers, and the warning ticket.\nWhen Eller reached the Saturn, he had LaPoint exit and \u201cstep to the back of the vehicle.\u201d At the suppression hearing, defense counsel asked Eller if he had any reason for removing LaPoint from the vehicle. Eller responded: \u201cNo, just \u2014 just standard. I do that a lot of times.\u201d The following colloquy occurred regarding what happened next:\n\u201cQ. And when she stepped around to the back of the vehicle, did you hand her that paperwork!?]\nA. I believe I asked her some other questions before I\u2014\nQ. What questions were those?\nA. I don\u2019t recall exactly what I asked her at that point.\nQ. Well, at that point when you asked Miss LaPoint to get out of her car and return to the back of the vehicle, she wasn\u2019t going to have to post bond or anything, was she?\nA. No.\nQ. She wasn\u2019t going into custody?\nA. No, sir.\nQ. You didn\u2019t have a warrant for her?\nA. No, sir.\nQ. And other than the traffic violations, you had not observed any criminal activity on Miss LaPoint\u2019s part?\nA. No, sir.\u201d\nAfter asking LaPoint the additional questions, Eller explained the warning ticket and then returned her paperwork. He testified: \u201cAs I was returning her paperwork to her, I asked her for consent to search the vehicle.\u201d At the suppression hearing, Eller acknowledged that LaPoint was entitled to depart when he made his request, but he did not advise her that she could withhold consent. He testified that LaPoint granted his request and that he asked her to sign a written consent form. LaPoint refused to sign the form, stating that Mary Bailey would not want her to sign anything. Then Eller asked if he still had verbal consent to search the vehicle. According to his testimony, LaPoint said \u201cyes, go ahead.\u201d\nEller retrieved a K-9 from his squad car and walked around the Saturn. When the dog alerted on the Saturn, Eller took the keys from the ignition and opened the trunk. Inside the trunk he observed a large, open duffel bag covered with a white towel. He moved the towel and observed numerous packages wrapped in plastic with a white material beneath them. He ultimately discovered that the duffel bag contained cannabis.\nThe circuit judge found that Eller had a legitimate basis for initiating the traffic stop and that he became suspicious when LaPoint gave unclear responses and lied about her prior arrests. Then the judge stated:\n\u201cAnd, here again, you know, the cases basically talk about continued detention, that you can\u2019t keep people after the time to conduct an investigation. At the time [Eller] walked up with the warning ticket, I don\u2019t know that he had a basis to hold [LaPoint]. He couldn\u2019t say, you wait here, we are going to investigate you. I think that would have been wrong. She would have been free to go and if she would have said, no, I don\u2019t want to consent, I want to leave, he would have been pretty much out of luck. But I don\u2019t know that we\u2019ve gotten to the stage where he can\u2019t ask her for permission to consent for a search right at the same time that he\u2019s handing her the paperwork. I mean, we are not talking about a big delay here. I think that\u2019s what the cases are talking about, unlawful detention so that police can do investigations. ***\n*** I think this is the facts [sic] of the case that makes this case different. The dog is there, it\u2019s right on the scene in his car. We are not going to wait any time for the dog here.\u201d\nThe judge also noted that once the dog alerted on the Saturn, Eller had probable cause and no longer needed LaPoint\u2019s consent to search. Thus, the judge denied the motion to suppress. LaPoint filed a motion to reconsider, and the judge denied that motion as well\u2014 reiterating his finding that Eller did not delay LaPoint in acquiring consent to search. In support of his ruling, the judge specifically observed that Eller\u2019s request for consent \u201cwas done simultaneously\u201d with the return of LaPoint\u2019s documents. The judge stated: \u201cI believe there\u2019s no delay, and I believe the police have the right to simultaneously ask for consent.\u201d\nThe matter then proceeded to a jury trial, where Eller offered testimony similar to his testimony from the suppression hearing. The jury found LaPoint guilty as charged. Following her sentencing hearing, she filed this appeal.\nANALYSIS\n1. Denial of Motion to Suppress\nBoth the federal and state constitutions require that searches and seizures be reasonable. U.S. Const., amend. IV; Ill. Const. 1970, art. I, \u00a7 6. A warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the warrant requirement \u2014 such as consent. People v. Robinson, 322 Ill. App. 3d 169 (2001). Consent is not valid unless it is voluntary, and in order for consent to be voluntary, it must be freely given without duress or coercion (express or implied). Robinson, 322 Ill. App. 3d 169. The inquiry for operationalizing this standard is whether, in light of all the circumstances surrounding the officer\u2019s request for consent, a reasonable person in the defendant\u2019s position would have felt free to leave. See People v. Brownlee, 186 Ill. 2d 501 (1999). If the answer to this inquiry is yes, the defendant\u2019s consent is deemed voluntary (see, e.g., People v. Phillips, 264 Ill. App. 3d 213 (1994)); but if the answer is no, the defendant\u2019s consent is deemed involuntary and will not justify a search (see, e.g., People v. Goeking, 335 Ill. App. 3d 321 (2002)).\nIn the instant case, the parties do not raise any factual or credibility disputes. Thus, our review is de novo because the issue involves only application of the law to the undisputed facts. People v. White, 331 Ill. App. 3d 22 (2002).\nSince Eller\u2019s legal basis for searching the Saturn was LaPoint\u2019s verbal consent, we must determine whether that consent was voluntary. The above-cited principles illustrate that the judge\u2019s analysis during the suppression hearing was incomplete. The judge seems to have focused his analysis decisively on the question of whether Eller delayed LaPoint after returning her documents. However, the applicable standard focuses on the totality of the circumstances surrounding the officer\u2019s request for consent. The presence or absence of a delay is merely one relevant factor in this analysis.\nRegardless of any suspicions Eller may have developed while questioning LaPoint, he ultimately decided to merely issue a warning ticket for her traffic infractions. He acknowledged that he had no evidence of any other criminal activity on her part. Yet, when he reap-proached the Saturn, he did not return LaPoint\u2019s documents and issue the ticket. Instead, he had LaPoint exit the Saturn and accompany him to the rear of the vehicle. He admitted that he had no reason for taking this action and that he could have finished his business the usual way (with LaPoint seated in the vehicle).\nLaPoint was clearly not free to leave when Eller reapproached the Saturn because her documents had not been returned. Eller manifested this lack of freedom by removing her from the Saturn, thus separating her from her mode of departure. T. e record clearly shows that he subjected LaPoint to additional questioning after walking back to the Saturn with the warning ticket. The circuit judge\u2019s observation regarding LaPoint\u2019s status at that moment bears repeating: \u201cAt the time [Eller] walked up with the warning ticket, I don\u2019t know that he had a basis to hold [LaPoint], He couldn\u2019t say, you wait here, we are going to investigate you. I think that would have been wrong.\u201d As it turned out, Eller did not even bother with telling LaPoint to wait for further investigation \u2014 he simply launched directly into such investigation. He did not return LaPoint\u2019s documents, thereby technically concluding the mandatory portion of the stop, until after this second round of questions. Moreover, he injected his request for consent to search into the seamless transition between mandatory and \u201cconsensual\u201d interaction. Although trained legal professionals might detect such subtle transitions, we do not believe a reasonable person in LaPoint\u2019s position could have done so.\nThe instant facts scarcely afford an opportunity for a reasonable person to even contemplate being free to leave. At the very moment when such freedom arose in theory, Eller posed a diversionary question about searching the vehicle. The question hearkened back to his earlier query about whether LaPoint had any illegal items in the Saturn (a query that occurred when she was clearly not free to leave). Most significantly, LaPoint was still separated from her mode of departure, and Eller\u2019s question about searching the Saturn came on the heels of a second round of investigatory questions. When Eller brought up the subject of a search, he did nothing to indicate that LaPoint could return to the vehicle. Neither did he inform LaPoint that she was free to leave despite his continued queries.\nUnder the totality of these circumstances, the most we could expect from a reasonable person is considerable doubt about whether she could disregard Eller\u2019s request and depart. Simply put, the aggregate effect of Eller\u2019s actions inhibited the type of feeling necessary for voluntary consent. This clear statement disproves the dissent\u2019s insinuation that our holding rests solely on the fact that Eller removed LaPoint from the Saturn.\nNeither does our holding absolutely bar police officers from requesting consent to search vehicles after concluding the mandatory portion of traffic stops. However, we agree with the observation of the Appellate Court, Second District, that permissible instances of such action \u201cwould be rare.\u201d Goeking, 335 Ill. App. 3d at 324 (observing that \u201c[i]t is difficult to imagine many cases in which a motorist would voluntarily remain at the scene of a traffic stop to engage the officer in casual conversation\u201d).\nFor the foregoing reasons, we conclude that the search of the Saturn was unconstitutional and that LaPoint\u2019s motion to suppress should have been granted.\n2. Reasonable Doubt\nOur conclusion on the suppression issue obviates the need to address LaPoint\u2019s reasonable doubt claim. Since her convictions cannot stand without the illegally seized evidence, we reverse them outright.\nCONCLUSION\nThe judgment of the La Salle County circuit court is reversed, and LaPoint\u2019s convictions are vacated.\nReversed and vacated.\nBARRY, J., concurs.\nWe realize that in Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996), the United States Supreme Court held that police officers are not constitutionally required to provide such information. Nevertheless, the Court stated that a motorist\u2019s knowledge of the right to refuse consent is a factor to consider in the totality-of-the-circumstances analysis. Thus, the fact that Eller did not advise LaPoint of her right to decline his request and depart is relevant.", "type": "majority", "author": "JUSTICE HOLDRIDGE" }, { "text": "JUSTICE SCHMIDT,\ndissenting:\nWe all know that two wrongs do not make a right. Here, the majority concludes that under the \u201ctotality of the circumstances,\u201d four rights make a wrong. 353 Ill. App. 3d at 333.\nAs the majority points out, after Deputy Eller asked defendant to step to the rear of her car, he advised her that he was issuing a warning ticket and then, as he handed her the ticket, her driver\u2019s license and the car rental papers, he asked for permission to search her car. She gave permission. The deputy then asked her to sign a consent to search form. The defendant refused. The deputy then asked whether he still had her oral permission to search the car, and defendant once again orally consented to the search.\nThe only issue really is whether LaPoint\u2019s consent to search the vehicle was voluntary or, as the majority finds, somehow coerced. The majority uses phrases such as: \u201che injected his request for consent into the seamless transition between mandatory and \u2018consensual\u2019 interaction\u201d and \u201c[a]t the very moment when such freedom arose in theory, Eller posed a diversionary question about searching the vehicle.\u201d (Emphasis added.) 353 Ill. App. 3d at 333. While this is wonderful prose that gives the deputy\u2019s actions a sinister flavor, I confess that I have no idea what it means.\nFederal and state constitutions serve to protect an individual only from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, \u00a7 6. The Illinois Supreme Court has consistently held that a search and seizure analysis is the same under the fourth amendment (U.S. Const., amend. IV) or the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 6). See Gonzalez, 204 Ill. 2d at 224, 789 N.E.2d at 264. While the fourth amendment does proscribe unreasonable searches and seizures, \u201cit does not proscribe voluntary cooperation.\u201d Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 401, 111 S. Ct. 2382, 2389 (1991). Consent is valid when it is voluntary, meaning that is freely given without duress or coercion. People v. Robinson, 322 Ill. App. 3d 169 (2001).\nThe United States Supreme Court has held that simply asking questions of a citizen is not a violation of the fourth amendment when the citizen is willing to listen. United States v. Drayton, 536 U.S. 194, 153 L. Ed. 2d 242, 122 S. Ct. 2105 (2002). Police may also generally request consent to search, even when officers have no basis for suspecting criminal activity. Florida v. Bostick, 501 U.S. 429, 434-35, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991).\nThe majority holds that defendant could not have felt free to refuse cooperation and depart. Yet, there was no evidence of coercion by the police officer. Examples of circumstances that might indicate a person was not free to leave include \u201cthe threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer\u2019s request might be compelled.\u201d United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). Further, the deputy did not threaten (1) to arrest the defendant, (2) to further detain the defendant while awaiting a canine, or (3) to impound the vehicle if consent was refused. See People v. Sesmas, 227 Ill. App. 3d 1040, 1046-47, 591 N.E.2d 918 (1992); People v. DeLisle, 104 Ill. App. 3d 297, 432 N.E.2d 954 (1982) (holding that consent may be involuntary where defendant must choose between consenting and being arrested).\nIn Ohio v. Robinette, the Supreme Court stated that once a motor vehicle has lawfully been detained for a traffic violation, police officers may order a driver to get out of the vehicle without violating the fourth amendment\u2019s proscription against unreasonable searches and seizures. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). Any motive the deputy may have had for removing the defendant from her vehicle is of no consequence to the fourth amendment analysis. Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 97-98, 116 S. Ct. 1769, 1774 (1996). Despite the Supreme Court\u2019s holdings, the majority suggests that removing the motorist from the driver\u2019s seat, although a totally constitutional act as announced in Robinette, had \u201cseparat[ed] [LaPoint] from her mode of departure\u201d and makes any consent thereafter obtained involuntary. 353 Ill. App. 3d at 333.\nThe majority also takes notice of the fact that Eller did not advise the defendant that she was free to leave the traffic stop and also that she need not grant consent. There is no obligation on the officer to advise that the traffic stop is over and the motorist is free to leave prior to requesting permission to search. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). Neither is the officer required to advise a citizen of the right to refuse consent. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). The majority acknowledges Ohio v. Robinette and then ignores it. The operative facts in this case are virtually identical to those in Robinette and there the Supreme Court found no constitutional violation.\nThe only remaining issue relating to voluntariness that the majority addresses is the length of time between the completion of the traffic stop and the deputy\u2019s request for consent. The majority\u2019s conclusions, laid out alongside the Illinois Supreme Court\u2019s decision in People v. Brownlee, 186 Ill. 2d 501 (1999), leave police with virtually no opportunity to ever obtain consent to search a vehicle on a traffic stop. The Brownlee court acknowledged \u201cthat an officer is always free to request permission to search.\u201d 186 Ill. 2d at 515. The court, however, found the problem was not the officer\u2019s requested permission to search the car, but \u201cthat the officers unconstitutionally detained the car and its occupants [for two minutes] before requesting permission to search the car and after the conclusion of the traffic stop.\u201d (Emphasis omitted.) 186 Ill. 2d at 515. Here, the majority claims that the request for voluntary consent to search the vehicle was constitutionally offensive because the deputy first requested permission to search at the instant the traffic stop was completed.\nIf two minutes is too long, and a few seconds is not long enough, we have effectively stripped the police of Illinois of one of their most effective tools in ferreting out criminal activity. In fact, since this case is decided under the United States Constitution, the majority\u2019s decision applies to police everywhere. See Ohio v. Robinette, 519 U.S. at 43, 136 L. Ed. 2d at 357, 117 S. Ct. at 423 (Ginsberg, J., concurring.)\nOn the facts of the case, there is little question as to the voluntariness of consent. Upon a request by Deputy Eller, LaPoint gave verbal consent. In fact, after defendant refused to sign a written consent to search, Eller asked whether he still had defendant\u2019s oral consent to search. This question implied that defendant had the same right to refuse oral consent as she had to refuse to give written consent. There is no evidence of any threat or suggestion the Eller would search with or without the consent.\nIn conclusion: (1) a police officer may order a driver to get out of the vehicle under circumstances virtually identical to those here (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); (2) there is no obligation on the officer to advise that the traffic stop is over and the motorist is free to leave prior to requesting permission to search (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); (3) an officer is not required to advise a citizen of his right to refuse consent (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); and (4) a police officer may not unreasonably detain a motorist after the conclusion of a traffic stop before requesting authority to search (People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999)). The police officer\u2019s actions here were in compliance with each of the above-listed rules of law. I respectfully dissent.", "type": "dissent", "author": "JUSTICE SCHMIDT," } ], "attorneys": [ "Thomas C. Brandstrader, of Highwood, for appellant.", "Joseph Hettel, State\u2019s Attorney, of Ottawa (Lawrence M. Bauer and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BETTY LaPOINT, Defendant-Appellant.\nThird District\nNo. 3\u201402\u20141002\nOpinion filed October 29, 2004.\nSCHMIDT, J., dissenting.\nThomas C. Brandstrader, of Highwood, for appellant.\nJoseph Hettel, State\u2019s Attorney, of Ottawa (Lawrence M. Bauer and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0328-01", "first_page_order": 344, "last_page_order": 353 }