{ "id": 4285536, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO M. JAMES, Defendant-Appellant", "name_abbreviation": "People v. James", "decision_date": "2009-06-16", "docket_number": "No. 3-05-0172", "first_page": "1045", "last_page": "1061", "citations": [ { "type": "official", "cite": "391 Ill. App. 3d 1045" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "543 U.S. 405", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5902584 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/us/543/0405-01" ] }, { "cite": "886 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 0 }, { "cite": "228 Ill. 2d 222", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706523 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/ill-2d/228/0222-01" ] }, { "cite": "875 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 121", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5111095 ], "year": 1993, "pin_cites": [ { "parenthetical": "court making finding adverse to the defendant is implicit credibility finding in favor of the State" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0210-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "713 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1999, "opinion_index": 0 }, { "cite": "186 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243856 ], "weight": 4, "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-2d/186/0501-01" ] }, { "cite": "446 U.S. 544", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185389 ], "weight": 21, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0544-01" ] }, { "cite": "851 N.E.2d 26", 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"page": "276-85" }, { "page": "276" }, { "page": "276" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/231/0262-01" ] }, { "cite": "789 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "204 Ill. 2d 220", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609689 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-2d/204/0220-01" ] } ], "analysis": { "cardinality": 1122, "char_count": 42196, "ocr_confidence": 0.772, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39348626116812213 }, "sha256": "1e53ed14ab969eb2512e0514c54698caf275446d865647c138399bc985226c10", "simhash": "1:985030145382d8e3", "word_count": 7117 }, "last_updated": "2023-07-14T21:50:16.782503+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. ORLANDO M. JAMES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCHMIDT\ndelivered the opinion of the court:\nThe defendant, Orlando M. James, was charged with unlawful possession of cocaine with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of cocaine (720 ILCS 570/ 402(a)(2)(B) (West 2002)). The trial court denied his motion to suppress the evidence. In a bench trial, the court found the defendant guilty on both counts. The court ruled that the latter count merged into the former and sentenced him, inter alia, to 17 years of imprisonment and to pay a $3,000 drug assessment fee. On appeal, the defendant argued that: (1) the trial court erred by denying his motion to suppress; and (2) he is entitled to a $5-per-day credit against his drug assessment fee for the days he was in presentence incarceration. In a 2007 order, this court, with one justice dissenting, reversed and remanded on the motion to suppress issue. People v. James, No. 3 \u2014 05\u20140172 (2007) (unpublished order under Supreme Court Rule 23). In doing so, the majority relied on the \u201cscope of the stop\u201d prong of People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). The State sought review of that order in the supreme court.\nOn November 26, 2008, the Illinois Supreme Court issued a supervisory order directing us to vacate the 2006 order and to reconsider in light of People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008). People v. James, 229 Ill. 2d 681, 896 N.E.2d 1060 (2008). Accordingly, we hereby vacate the 2006 order. Upon reconsideration, we affirm as modified.\nI. BACKGROUND\nAt the hearing on the motion to suppress, Henry County Deputy Sheriff Glenn Hampton testified that, during the early morning hours of November 14, 2002, he observed a car following another vehicle too closely on Interstate 80. Hampton stopped the car, which was driven by Anthony Oliver, and in which the defendant was the only passenger.\nHampton said that he approached the driver\u2019s side of the vehicle and asked Oliver for his driver\u2019s license. Oliver gave Hampton an Illinois state identification card. The officer placed Oliver in the passenger seat of the squad car while he ran a background check on Oliver\u2019s card. The dispatcher informed Hampton that Oliver did not have a valid Illinois driver\u2019s license.\nIn response to Hampton\u2019s questions, Oliver stated that he had problems with his license because of an error by the Secretary of State\u2019s office. Hampton did not arrest Oliver, but instead told him that he needed to resolve the situation with the Secretary of State\u2019s office.\nAt some point while Oliver was in the squad car, Hampton approached the defendant to determine whether he had a valid driver\u2019s license. The defendant told Hampton that he did not have his driver\u2019s license with him. The defendant provided Hampton with his name and date of birth.\nUsing this information from the defendant, Hampton ran a background check to determine whether the defendant had a valid driver\u2019s license. The dispatcher informed Hampton that the defendant had a valid license and that he was on mandatory supervised release from the Department of Corrections. Hampton was not told why the defendant had been incarcerated. After Hampton received the information regarding Oliver, the vehicle, and the defendant, Hampton returned Oliver\u2019s card and informed him that he was free to go, but only if the defendant drove the car.\nThen, Hampton asked Oliver if there were any weapons or contraband in the vehicle. Hampton testified that he was suspicious of \u201ca very strong smell of an aroma, of some sort of fragrance, real strong,\u201d coming from inside the vehicle. Hampton stated that vehicles transporting illegal drugs sometimes use strong fragrances as masking agents.\nOliver told Hampton that there were no weapons or contraband in the vehicle. In response, Hampton asked Oliver whether he was certain of that. Oliver said that he was certain, but also told Hampton that he could search the vehicle if he wished. Hampton took Oliver\u2019s statement as consent to search the vehicle.\nHampton next approached the passenger side of the vehicle and asked the defendant to exit the vehicle. Hampton told the defendant that Oliver had consented to a search of the vehicle and also asked the defendant for consent to search. According to Hampton, the defendant consented.\nNext, Hampton told Oliver to stand at the front of the car he had been driving. The officer also told the defendant to stand at the front of the squad car, which was situated behind the vehicle in which he had been the passenger. Hampton then searched the interior of the car. The only item Hampton found in the passenger compartment was a liquor bottle containing the fragrance that was emanating from the vehicle.\nHampton then asked both the defendant and Oliver for their consent to search the trunk. At this point, both Oliver and the defendant were still at the respective locations where they previously had been told to stand by Hampton. Both the defendant and Oliver gave their consent to search the trunk. During this search, Hampton found a plastic baggie containing cocaine in a wheel well of the trunk.\nOliver later gave a voluntary written statement to Hampton, stating that he was taking the cocaine to a party, but that he did not intend to sell the cocaine. He also stated that he was \u201cready to leave the streets\u201d and to give up using drugs.\nOliver testified that he was driving the car on Interstate 80 on the morning in question. The defendant was in the passenger\u2019s seat. The vehicle belonged to the defendant\u2019s wife. Oliver stated that he was in the left lane, passing a truck that was in the right lane. Hampton\u2019s squad car was turning around in a U-turn area on the interstate. Oliver passed Hampton, and Hampton began to follow the vehicle. Hampton then pulled the car over.\nHampton approached the driver\u2019s side and asked Oliver for his license. Oliver responded that he only had a state identification card because someone in Connecticut had been using his name. Hampton then placed Oliver in the squad car.\nHampton ran a background check on Oliver\u2019s card, which came back as suspended. Hampton exited the squad car and approached the defendant, who gave Hampton his information orally because he did not have his driver\u2019s license with him. Hampton returned to the squad car and ran a background check on the defendant\u2019s information. Hampton then returned Oliver\u2019s card and told him that he was free to go. Oliver stated that he felt free to go at that point.\nHampton next informed Oliver that he was going to search the vehicle and that, if there was nothing illegal in the vehicle, the defendant would have to drive. Hampton then asked Oliver if there were guns or drugs in the vehicle. Oliver said Hampton never asked him whether he could search the vehicle. Oliver stated that his door was locked and that he no longer felt free to leave after Hampton said he was going to search the vehicle.\nHampton exited the squad car and approached the defendant, whom he asked to exit the vehicle. Hampton returned and asked Oliver to exit the squad car. Hampton placed Oliver at the front of the vehicle and the defendant at the rear. Hampton then began to search the vehicle.\nAfter Hampton searched the passenger compartment, he opened the trunk and began to search it. Oliver stated that Hampton did not ask him for consent to search the trunk and that he did not hear Hampton ask the defendant for consent to search the trunk.\nDuring his search of the trunk, Hampton rose up with his gun drawn and told Oliver to \u201cfreeze\u201d and to put his hands on his head. Hampton then made Oliver walk around to the back of the vehicle, where he cuffed Oliver and the defendant.\nOliver stated that his written statement was untrue. He stated that Hampton told him what to write because he wished to \u201cimpress the State\u201d in order to get the intent charge dropped. Additionally, Oliver stated that Hampton encouraged him to talk to the defendant regarding the incident to ensure they had the same version of what happened. In rebuttal, Hampton denied telling Oliver what to write and denied encouraging Oliver to talk to the defendant regarding the incident.\nThe defendant testified that, on the morning in question, he was the passenger in his wife\u2019s vehicle. Oliver was driving. Hampton pulled them over and approached the driver\u2019s side of the vehicle. Oliver rolled the window down, and Hampton said he pulled the car over for following another vehicle too closely.\nOliver gave Hampton a state identification card, and Hampton took Oliver back to the squad car while he ran the check on Oliver\u2019s card. About 10 minutes later, Hampton approached the defendant and asked him for his driver\u2019s license. The defendant said that he had a license, but that he did not have it on him. The defendant then gave Hampton his personal information, and Hampton returned to the squad car.\nHampton returned about 10 minutes later with Oliver walking slightly behind him. Hampton asked the defendant to exit the vehicle and told Oliver to go to the front of the vehicle. Hampton then asked the defendant if he had any contraband on him, to which the defendant said, \u201cNo.\u201d Hampton asked for and received the defendant\u2019s consent to search his person. Hampton then placed the defendant at the rear of the vehicle.\nNext, Hampton began searching the vehicle\u2019s interior. The defendant stated that Hampton never asked if the officer could search the vehicle and that he never heard Hampton ask Oliver if the officer could search the vehicle. After searching the interior, Hampton began searching the trunk. He opened the trunk with the key. Again, the defendant stated that Hampton did not ask for consent to search the trunk and that he did not hear Hampton ask Oliver for consent to search the trunk.\nWith regard to the events surrounding Oliver\u2019s written statement, the defendant stated that Hampton told him that Hampton knew the State\u2019s Attorney personally and that Hampton was going to try to help them out by getting the intent charge dropped. The defendant also stated that Hampton told him that he needed to \u201cfollow-up\u201d with Oliver\u2019s version of what happened in order to convince the State\u2019s Attorney to drop the intent charge and that Hampton actually told him several parts of Oliver\u2019s version. The defendant stated that Hampton placed him in the same room with Oliver for five minutes to \u201ctalk it over.\u201d\nOn April 4, 2003, the trial court denied the defendant\u2019s motion to suppress. In its written order, the court made a number of factual findings that were consistent with Hampton\u2019s testimony. Among these findings, the court stated that both Oliver and the defendant had given their consent to the search of the car, contrary to their testimony. The court also said that both Oliver and the defendant were free to go when Hampton made the request to search the vehicle and that Hampton did not illegally detain them prior to requesting consent to search. Accordingly, the court held that the consents of both Oliver and the defendant had been voluntarily given.\nAt the bench trial, Hampton offered testimony similar to his testimony at the suppression hearing. At the conclusion of the bench trial, the court found the defendant guilty on both counts. The record shows that the defendant was in custody for 501 days before he was sentenced.\nII. ANALYSIS\nA. Motion to Suppress\nOn appeal, the defendant contends that the trial court erred by denying his motion to suppress because Hampton illegally detained him following the traffic stop, thereby tainting the subsequent search that resulted in the discovery of cocaine in the trunk of the vehicle.\nIn Cosby, our supreme court reiterated that the ruling of a trial court on a motion to suppress frequently presents mixed questions of fact and of law. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. A trial court\u2019s findings of fact will not be disturbed unless they are manifestly erroneous, and its ultimate decision concerning whether to grant the motion is reviewed de novo. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603.\nThe fourth amendment of the United States Constitution guarantees the \u201cright of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d U.S. Const., amend. IV Article I, section 6, of the Illinois Constitution provides similar protections. Ill. Const. 1970, art. I, \u00a76. Illinois courts have interpreted the search and seizure language found in section 6 in a manner consistent with the Supreme Court\u2019s fourth amendment decisions. People v. Caballes, 221 Ill. 2d 282, 851 N.E.2d 26 (2006).\nIn Cosby , the Illinois Supreme Court emphasized that searches and seizures that occur incident to traffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260. The Cosby court noted that once a traffic stop has ended, the question becomes whether a second seizure has occurred when an officer requests consent to search the vehicle. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. The court analyzed this question under the principles found in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999).\nThe Mendenhall court stated that a person is seized when, either by physical force or by a show of authority, his freedom of movement is restrained. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. The Court gave examples of circumstances that might indicate a seizure to be: (1) the threatening presence of several officers; (2) an officer\u2019s display of a weapon; (3) physical touching of the defendant by an officer; and (4) an officer\u2019s use of language or tone of voice to indicate that compliance may be compelled. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.\nCiting Mendenhall, the Brownlee court observed that a person is seized when, considering all of the facts and circumstances concerning the incident, a reasonable person would not feel free to leave. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. If an officer has neither probable cause nor a reasonable, articulable suspicion of criminal activity, the officer\u2019s show of authority constitutes an unconstitutional seizure of the person. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.\nThe Mendenhall court also noted that the crucial question is whether a defendant\u2019s seizure at the time he was asked for consent to search meant that the consent was coerced and, therefore, was involuntary. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. If the consent to search was involuntarily given, any evidence obtained as a result of the search would be tainted as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556.\nWe acknowledge that the testimony of Hampton, Oliver, and the defendant varied regarding the events that transpired between the beginning of the traffic stop and the defendant\u2019s arrest. However, the trial court made factual findings that were consistent with Hampton\u2019s testimony. The court also found that Oliver and the defendant were free to go when Hampton asked for consent to search the vehicle. The court implicitly found Hampton\u2019s testimony to be more credible than the testimony of either Oliver or the defendant. See People v. Hawkins, 243 Ill. App. 3d 210, 611 N.E.2d 1069 (1993) (court making finding adverse to the defendant is implicit credibility finding in favor of the State). Therefore, we will rely on Hampton\u2019s version of events in applying the facts of this case to our legal analysis.\nAs the Cosby court noted, once the traffic stop ended, the central question became whether a second seizure occurred when Hampton requested consent to search the vehicle. See Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. In the present case, the traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver\u2019s license and told Oliver that he was free to go so long as the defendant drove.\nThen, while still seated in the squad car, Hampton asked Oliver if: (1) there were any weapons or any contraband in the vehicle; and (2) whether he was certain. Merely asking such questions did not constitute a seizure of Oliver. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.\nNext, without Hampton asking Oliver for consent to search the car, Oliver volunteered that Hampton could search the vehicle. Because Oliver had been the driver of the car, he had authority to consent to the search of the vehicle. See People v. Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277 (1990). Therefore, Oliver\u2019s unsolicited consent was a valid, voluntary consent for Hampton to search the car. Furthermore, Oliver\u2019s unsolicited consent included consent to search the trunk. See People v. Gutierrez, 243 Ill. App. 3d 867, 612 N.E.2d 111 (1993). Moreover, Oliver\u2019s unsolicited consent was valid regardless of whether Hampton sought the consent of the defendant, who was: (1) a passenger in the car; and (2) not the owner of the vehicle (defendant\u2019s wife owned the car). See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277.\nNext, we will determine whether any of Hampton\u2019s actions after he received Oliver\u2019s consent would have invalidated that consent. After Hampton received Oliver\u2019s unsolicited consent, Hampton asked the defendant to exit the vehicle. Hampton was permitted to require the defendant to exit the vehicle during the search, for the officer\u2019s safety. See Maryland v. Wilson, 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997); People v. Gonzalez, 294 Ill. App. 3d 205, 689 N.E.2d 1187 (1998). Thus, Hampton\u2019s removal of the defendant from the car did not invalidate Oliver\u2019s consent to search the vehicle.\nAfter the defendant exited the vehicle, Hampton asked: (1) the defendant for consent to search the car; (2) Oliver for consent to search the trunk; and (3) the defendant for consent to search the trunk. However, all of Hampton\u2019s further requests to search were redundant after Hampton received the initial valid, unsolicited consent to search from Oliver. See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277. Even if we were to consider, arguendo, whether any of these subsequent requests constituted a second seizure, the answer is negative because the record does not show the presence of any Mendenhall factors (see 391 Ill. App. 3d at 1051) during these requests. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.\nIn summary, the evidence presented at the suppression hearing showed that Hampton obtained unsolicited, voluntary consent to search the vehicle, including the trunk, from Oliver. Whether Hampton later requested consent to search from the defendant was irrelevant. See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277. If anything, the request to search the trunk would send the message to a reasonable person that he could refuse the request and the officer would stop searching. Hampton did not seize the cocaine in violation of defendant\u2019s fifth amendment rights. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. Therefore, we hold that it was neither against the manifest weight of the evidence nor error as a matter of law for the trial court to deny the defendant\u2019s motion to suppress.\nB. Monetary Credit\nThe defendant submits that he is entitled to a $5-per-day credit against his $3,000 drug assessment fee for the days he was in presentence incarceration. The State agrees.\nA criminal defendant is entitled to a $5 credit for each day he is in presentence custody to be applied against any fines imposed by the court. 725 ILCS 5/110 \u2014 14 (West 2006). This $5 credit is applicable to drug assessment fees. People v. Reed, 376 Ill. App. 3d 121, 875 N.E.2d 167 (2007).\nIn this case, the record shows that the defendant was in presen-tence custody for 501 days. His sentence included a $3,000 drug assessment fee. The defendant did not receive a $5-per-day credit against his drug assessment fee. Therefore, we rule that the defendant is entitled to a credit of $2,505 against his $3,000 drug assessment fee.\nIII. CONCLUSION\nFor the foregoing reasons, we affirm the Henry County circuit court\u2019s judgment of conviction and modify the defendant\u2019s sentence by applying a credit of $2,505 against his $3,000 drug assessment fee.\nAffirmed as modified.\nLYTTON, J., concurs.\nThe defendant and Oliver were tried separately. They each filed a motion to suppress in their respective cases. By agreement of the parties, the trial court held a joint hearing on the motions from the separate cases.\nWe note that this is a fourth amendment case. There are United States Supreme Court cases on point. Our supreme court directed this court to reconsider in light of Cosby and, for that reason, our analysis focuses on Cosby. Cosby obviously does not change fourth amendment jurisprudence. Rather, Cosby and People v. Harris, 228 Ill. 2d 222, 886 N.E.2d 947 (2008), bring Illinois back in line with United States Supreme Court fourth amendment jurisprudence. We assume the Illinois Supreme Court directed us to vacate the original order and reconsider in light of Cosby because Cosby was its most recent pronouncement that the \u201cscope of the stop\u201d portion of the Gonzalez test, relied on by the majority in our 2006 disposition, previously had been rejected by the United States Supreme Court in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005).", "type": "majority", "author": "JUSTICE SCHMIDT" }, { "text": "JUSTICE McDADE,\ndissenting:\nThis appeal is before us because of a supervisory order of the Illinois Supreme Court, directing this court to vacate and reconsider its previous order in this appeal, People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23), in light of the supreme court\u2019s recent holding in People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008), which overruled the court\u2019s previous decision in People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003), to the extent it held that the reasonableness of a traffic stop must be judged by whether the officer\u2019s conduct altered the fundamental nature of the stop. We originally found that the trial court erred in denying defendant\u2019s motion to suppress. Upon reconsideration, the majority affirms the trial court\u2019s denial of defendant\u2019s motion to suppress. Because I believe Cosby is both factually distinguishable and does not represent a change in the law that requires reversal of our prior decision, I dissent.\nIn our previous order, we found that: (1) \u201cdefendant was not free to go while Oliver was in the squad car being questioned by Hampton\u201d; and (2) Hampton\u2019s actions \u201cboth prolonged the detention and changed the fundamental nature of the stop.\u201d People v. James, No. 3 \u2014 05\u2014 0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Thus, we reversed the trial court\u2019s denial of defendant\u2019s motion to suppress. People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Here, the majority finds that: (1) \u201ctraffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez\u201d (391 Ill. App. 3d at 1051); (2) \u201cthe traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver\u2019s license and told Oliver that he was free to go so long as the defendant drove\u201d (391 Ill. App. 3d at 1052); and (3) Hampton\u2019s actions after the stop ended did not constitute a second seizure and that Oliver\u2019s consent to search the vehicle was therefore legal (391 Ill. App. 3d at 1051-53).\nAt the outset, I would like to call attention to the misleading nature of the majority\u2019s statement that \u201ctraffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez.\u201d 391 Ill. App. 3d at 1051. This statement appears to imply that Gonzalez has been overruled in its entirety. A reading of Cosby, however, rebuts this implication. In Cosby, the State charged Michael Cosby with unlawful possession of drug paraphernalia and unlawful possession of cocaine, resulting from a search of Cosby\u2019s vehicle and a cigarette pack belonging to Cosby. Prior to trial, Cosby filed a motion to suppress. The trial court denied the motion to suppress and the appellate court reversed. On appeal, the supreme court discussed the proper test to apply when attempting to determine whether police questioning during a \u201cseizure\u201d implicates fourth amendment principles. Cosby, 231 Ill. 2d at 273-76, 898 N.E.2d at 610-12. In doing so, the court overruled its previous decision in Gonzalez, but only to the extent it held that the reasonableness of a traffic stop must be judged by whether the officer\u2019s conduct altered the fundamental nature of the stop. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Specifically, the court stated:\n\u201cWe have very recently held in People v. Harris, 228 Ill. 2d 222, 240[, 886 N.E.2d 947] (2008), that our decision in Gonzalez has been \u2018unequivocally overruled\u2019 by the United States Supreme Court\u2019s decision in Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005). As we noted in Harris, Muehler makes clear that the Court, in Caballes, rejected the reasoning that led to this court\u2019s adoption of the \u2018 \u201cfundamental alteration of the nature of the stop\u201d \u2019 portion of the \u2018 \u201cscope\u201d \u2019 prong of Gonzalez and that all that remains of the scope prong is the \u2018 \u201cduration\u201d \u2019 portion of that analysis. [Citation.] Thus we overruled Gonzalez to the extent it holds that the reasonableness of a traffic stop must be judged by whether the officer\u2019s conduct altered the fundamental nature of the stop. [Citation.]\u201d Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.\nClearly, the majority of the three-tiered test discussed in Gonzalez is still applicable when examining the propriety of searches and seizures that occur incident to a traffic stop. While the majority seems to imply otherwise, Cosby merely overruled the \u201c \u2018 \u201cfundamental alteration of the nature of the stop\u201d \u2019 \u201d portion of the scope prong. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Thus, after Cosby, the analytical framework used to determine whether police questioning during a seizure violates the fourth amendment is as follows:\n\u201cFirst, with respect to Terry\u2019s scope requirement, a court must determine whether the questioning is related to the initial justification for the stop. If the questioning is so related, no fourth amendment violation occurs. If the questioning is not reasonably related to the purpose of the stop, the court must determine whether the officer had a reasonable, articulable suspicion that would justify the questioning. If so, there is no fourth amendment violation. In the absence of a reasonable, articulable suspicion, the court must consider whether, in light of the totality of the circumstances, the questioning impermissibly prolonged the detention ***. [The \u2018alteration of the fundamental nature of the stop\u2019 portion of the scope prong is no longer viable.]\u201d Cosby, 231 Ill. 2d at 275, 898 N.E.2d at 612.\nWhile the Cosby court specifically set out the applicable test when determining whether police questioning during a seizure violates the fourth amendment, the court ultimately did not apply this test. Instead, the court determined that the initial seizure had ended and thus the relevant question before it was whether a second seizure had occurred. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. One must first determine whether a seizure has occurred prior to determining whether an officer\u2019s questioning during the seizure violates the fourth amendment. See Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. Specifically, the court stated:\n\u201cThe appellate court in Cosby\u2019s case found that the traffic stop was unreasonably prolonged. While [defendants] argue[ ] before this court that there was no break between the conclusion of the traffic stop and the officer\u2019s request for consent to search, we conclude that the record does not support such an argument. The requests for consent to search in both the instant cases followed the officers\u2019 returning of the defendants\u2019 paperwork. At that point, the traffic stop came to an end. The relevant question is whether the officers\u2019 actions after the initial traffic stops had concluded constituted a second seizure of either defendant.\u201d Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.\nThe Cosby court analyzed this question under the principles found in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999). The Mendenhall Court stated that a person is seized when, either by physical force, or by a show of authority, his freedom of movement is restrained. Mendenhall, 446 U.S. at 553, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. The Court gave examples of circumstances that might indicate a seizure had occurred: (1) the threatening presence of several officers; (2) an officer\u2019s display of a weapon; (3) physical touching of the defendant by an officer; and (4) an officer\u2019s use of language or tone of voice to indicate that compliance may be compelled. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. Citing Mendenhall, the Brownlee court observed that a person is seized when, considering all of the facts and \u201c \u2018circumstances surrounding the incident, a reasonable person would [not] believe[ ] that he was *** free to leave.\u2019 \u201d Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564, quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877. If an officer has neither probable cause nor a reasonable, articulable suspicion of criminal activity, the officer\u2019s show of authority constitutes an unconstitutional seizure of the person. Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564.\nUpon examining the principles announced in Mendenhall and Brownlee, the Cosby court found that no second seizure took place. Specifically, the court stated:\n\u201cAccordingly, applying the principles of Brownlee and Mendenhall, we conclude that Cosby was not seized and that his consent to search his car was therefore voluntary. The trial court\u2019s decision denying Cosby\u2019s motion to suppress was therefore not in error.\u201d Cosby, 231 Ill. 2d at 284-85, 898 N.E.2d at 617.\nHere, the majority employs the same approach found in Cosby to a materially different fact situation. Specifically, the majority finds that \u201cthe traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver\u2019s license and told Oliver that he was free to go so long as the defendant drove.\u201d 391 Ill. App. 3d at 1052. Upon making this finding, the majority then undertakes a cursory review of the factors announced in Mendenhall in an attempt to determine whether a second seizure took place.\nThe majority\u2019s premise is wrong, however, in light of the fact that its position that the traffic stop ended when Hampton told Oliver that he was free to go is both contradictory and legally incorrect. While I recognize that we have vacated our previous order regarding this appeal, I note that we originally found that \u201cdefendant was not free to go while Oliver was in the squad car being questioned by Hampton.\u201d People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Again, an individual is seized for purposes of the fourth amendment when the circumstances are such that a reasonable person, innocent of any crime, would conclude that he was not free to leave. People v. Lopez, 229 Ill. 2d 322, 346, 892 N.E.2d 1047, 1061 (2008). Moreover, our previous order placed great significance upon the fact that Hampton\u2019s repeated questions to Oliver regarding whether there were any weapons or contraband in the vehicle \u201coccurred after what should have been the termination of the traffic stop.\u201d (Emphasis added.) People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).\nI am perplexed as to why, absent any change in facts, the opposite position \u2014 that the seizure of defendant ended at the point where Hampton told Oliver he was free to leave \u2014 has now garnered a majority. Beyond the fact that the facts leading to our previous position that \u201cdefendant was not free to go while Oliver was in the squad car being questioned by Hampton\u201d have not changed, the majority\u2019s new finding simply defies logic.\nPursuant to Hampton\u2019s order, Oliver was sitting in the passenger seat of Hampton\u2019s squad car. Immediately after being told he was free to leave, but while still locked (according to Oliver the door was locked) in the squad car, Hampton asked Oliver whether there were any weapons or contraband in the vehicle. Oliver answered, \u201cNo.\u201d Apparently, Oliver\u2019s direct answer did not satisfy Hampton so Hampton asked Oliver, while he was still in the locked police car, if he was sure. Oliver\u2019s response to this question, given while still seated in the locked car, was that he was sure, but Hampton could search if he wanted to. Clearly, no reasonable person sitting in a closed and locked squad car being questioned by a police officer about weapons or contraband would feel free to just leave. Moreover, it is ridiculous to assume that Hampton would have stood idly by if Oliver simply unlocked and opened the squad door, exited the squad and decided not to answer Hampton\u2019s question. Even an individual who is fully aware of his or her legal rights would hesitate to take those steps that the majority apparently feels Oliver (or any reasonable person) would have felt free to take.\nThe majority, however, ignores these contextual facts and instead focuses solely upon the fact that Hampton, at one point during the encounter, told Oliver he was free to leave. In doing so, however, the majority has incorrectly applied the law. Both the United States Supreme Court and our supreme court have specifically instructed us on numerous occasions that we must look at \u201call of the circumstances surrounding the incident\u201d when determining whether a reasonable person would feel free to leave. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877; Lopez, 229 Ill. 2d at 346, 892 N.E.2d at 1061; Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564. We do not look solely at one isolated statement by the arresting police officer. In this case, the totality of the circumstances should tell us that Oliver remained seized, that the duration of the traffic stop was unreasonably prolonged, and his consent was not voluntary.\nBut what about defendant? I do not believe defendant was free to leave during the time Oliver was in the squad car being questioned by Hampton, so I conclude the seizure never ended as to him either. I reach that conclusion for the following reasons. Defendant was a passenger in the car being driven by Oliver. He was seized when Hampton made the traffic stop and took Oliver to the squad car. Hampton inquired about his driver\u2019s license and defendant would reasonably have anticipated that the officer would learn that he was on mandatory supervised release. Defendant was not privy to and could not know that Hampton had told Oliver he was free to leave. He was not privy to and could not know that Hampton had conditioned Oliver\u2019s release on defendant driving the car, thus implicitly authorizing him to drive even though he was not in possession of his driver\u2019s license. What defendant did know was that he was sitting, by direction of a police officer, in a car that he carried no license to drive, that the driver of the car was detained by the officer in the squad car, and that if he drove away in the car, he would be violating the law while on mandatory supervised release. No reasonable person in defendant\u2019s position would have felt free to leave. Thus, defendant, too, remained seized.\nIt is on this basis that I disagree with the majority\u2019s analysis of this case, which incorrectly attempts to determine whether a second seizure occurred after Hampton told Oliver he was free to leave. Instead, the pertinent question in the instant case is whether the seizure, which never ended, violated the fourth amendment. In order to answer this question, we need to apply the three-tiered test the Cosby court set out but did not apply because it found the original seizure had ended when the officers returned the defendants\u2019 paperwork and no second seizure subsequently took place. See Cosby, 231 Ill. 2d at 276-85, 898 N.E.2d at 612-17.\nIn our previous decision we first determined that the questioning of defendant and the subsequent search were not reasonably related to the initial justification for the stop. People v. James, No. 3 \u2014 05\u2014 0172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). We then found that the record failed to establish a reasonable, articulable suspicion that would justify the questioning. People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Finally, we examined the scope prong of the analysis and found that Hampton\u2019s actions \u201cboth prolonged the detention and changed the fundamental nature of the stop.\u201d People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). While I recognize that the \u201c \u2018 \u201calteration of the fundamental nature of the stop\u201d \u2019 \u201d portion of the scope prong is no longer viable, the duration prong still exists. Crosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. The duration prong is now the sole focus of the scope inquiry. Harris, 228 Ill. 2d at 244, 886 N.E.2d at 961. Thus, if a court finds, as we previously did, that the questioning ultimately and impermissibly prolonged the detention (People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23)), any consent and subsequent search resulting from the questioning is tainted, and the fruits thereof should be suppressed. People v. Brownlee, 186 Ill. 2d 501, 519, 713 N.E.2d 556, 565 (1999).\nThe majority here affirms the trial court\u2019s denial of defendant\u2019s motion to suppress on the grounds that Hampton\u2019s questions to Oliver after he told Oliver he was free to leave did not create a second seizure, and none of the Mendenhall factors indicative of a seizure were present. 391 Ill. App. 3d at 1051-53. The majority\u2019s argument misses the point. As discussed above, the majority\u2019s position is based upon the incorrect conclusion that the seizure came to an end at the point when Hampton told Oliver that he was free to leave. While I recognize Hampton also told defendant he was free to leave, this statement was only given after defendant provided Hampton with his name and date of birth. More importantly, however, the driver of the vehicle, Oliver, was locked in Hampton\u2019s squad car at the time Hampton told defendant he was free to leave. As we previously found, \u201cdefendant was not free to go while Oliver was in the squad car being questioned by Hampton.\u201d People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).\nThus, unlike the situation in Cosby, the seizure in the present case did not end. We, therefore, are not faced with the same question the Cosby court was faced with, specifically, whether the police \u201cactions after the initial traffic stop[ ] had concluded constituted a second seizure of *** defendant.\u201d Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. It is on this basis that I disagree with the majority\u2019s finding that Cosby requires us to affirm the trial court\u2019s denial of defendant\u2019s motion to suppress. Instead, beyond eliminating one, but not both, of our scope findings, I believe Cosby does not negate our original determination that the trial court erred in denying defendant\u2019s motion to suppress.\nAgain, our previous holding found that: (1) Hampton\u2019s questioning was not related to the initial justification for the stop; (2) Hampton lacked a reasonable, articulable suspicion that would justify the questioning; and (3) Hampton\u2019s questioning impermissibly prolonged the detention. People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). The facts involved in this case have not changed since the entry of our original order. Nor has any dispositive change in the law taken place since the entry of our original order.1 therefore adhere to my original position that \u201cOliver and defendant were illegally detained at the time they gave consent to the search.\u201d People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23). Thus, the search was tainted and the fruits thereof should have been suppressed. See Brownlee, 186 Ill. 2d at 519, 713 N.E.2d at 565.\nFor the foregoing reasons, I would reverse and remand the trial court\u2019s denial of defendant\u2019s motion to suppress.\nHampton\u2019s repeated questions whether there were any weapons or contraband in the vehicle came almost immediately after he told Oliver he was free to leave.\nAlthough the argument gains weight if Oliver was correct that the door was locked, it retains its substance even if the door was only closed and not locked.\nI acknowledge that the supreme court has found that \u201cthe alteration of the fundamental nature of the stop\u201d portion of the scope prong is no longer viable and all that remains of the scope prong is the \u201cduration\u201d portion of that analysis. This change does not affect this particular case upon reconsideration, however, because we have already found that Hampton\u2019s questioning impermissibly prolonged the detention. People v. James, No. 3 \u2014 05\u20140172 (2006) (unpublished order under Supreme Court Rule 23) (166 Ill. 2d R. 23).", "type": "dissent", "author": "JUSTICE McDADE," } ], "attorneys": [ "Thomas A. Karalis (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Terence M. Patton, State\u2019s Attorney, of Cambridge (Terry A. Mertel and Gary E Gnidovec (argued), 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. ORLANDO M. JAMES, Defendant-Appellant.\nThird District\nNo. 3\u201405\u20140172\nOpinion filed June 16, 2009.\nMcDADE, J., dissenting.\nThomas A. Karalis (argued), of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nTerence M. Patton, State\u2019s Attorney, of Cambridge (Terry A. Mertel and Gary E Gnidovec (argued), both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1045-01", "first_page_order": 1059, "last_page_order": 1075 }