{ "id": 4295396, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRES ROA, Defendant-Appellant", "name_abbreviation": "People v. Roa", "decision_date": "2010-02-10", "docket_number": "No. 3\u201405\u20140420", "first_page": "158", "last_page": "177", "citations": [ { "type": "official", "cite": "398 Ill. App. 3d 158" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "277 Ill. App. 3d 227", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172373 ], "year": 1995, "pin_cites": [ { "page": "230-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0227-01" ] }, { "cite": "377 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. 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"N.E.2d", "year": 1999, "opinion_index": 1 }, { "cite": "827 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "214 Ill. 2d 338", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451115 ], "year": 2005, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/214/0338-01" ] }, { "cite": "560 N.E.2d 309", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "137 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251541 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/ill-2d/137/0382-01" ] }, { "cite": "789 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 1 }, { "cite": "886 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2008, "opinion_index": 1 }, { "cite": "517 U.S. 690", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746351 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "699" }, { "page": "920" }, { "page": "1663" } ], "opinion_index": 1, "case_paths": [ "/us/517/0690-01" ] }, { "cite": "857 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2006, "opinion_index": 1 }, { "cite": "898 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 16, "year": 2008, "pin_cites": [ { "page": "609" }, { "page": "612" }, { "page": "612" }, { "page": "612" }, { "page": "613" }, { "page": "615" }, { "page": "615" }, { "page": "616" }, { "page": "616" }, { "page": "617" }, { "page": "618" }, { "page": "618" }, { "page": "619" }, { "page": "613" } ], "opinion_index": 1 }, { "cite": "824 N.E.2d 262", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "267" } ], "opinion_index": 1 }, { "cite": "214 Ill. 2d 206", "category": 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2d 222", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706523 ], "year": 2008, "opinion_index": 1, "case_paths": [ "/ill-2d/228/0222-01" ] }, { "cite": "544 U.S. 93", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5902037 ], "weight": 3, "year": 2005, "opinion_index": 1, "case_paths": [ "/us/544/0093-01" ] }, { "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" ] }, { "cite": "231 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3617207 ], "weight": 17, "year": 2008, "pin_cites": [ { "page": "271" }, { "page": "276" }, { "page": "276" }, { "page": "276" }, { "page": "281" }, { "page": "281" }, { "page": "281" }, { "page": "282" }, { "page": "282" }, { "page": "283" }, { "page": "285" }, { "page": "286" }, { "page": "287" }, { "page": "287" }, { "page": "277" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/231/0262-01" ] } ], "analysis": { "cardinality": 1509, "char_count": 49796, "ocr_confidence": 0.772, "pagerank": { "raw": 4.4265276719536815e-08, "percentile": 0.2776138686077837 }, "sha256": "c46239916f87589eb8f73176d3fc058ffd35f986474cf86c7ab30f26667a9971", "simhash": "1:bc7cfe1e57c497c3", "word_count": 8228 }, "last_updated": "2023-07-14T21:50:17.302697+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LYTTON, J., concurs." ], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRES ROA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WRIGHT\ndelivered the opinion of the court:\nDefendant Andres Roa appeals from his conviction for violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2004)). On appeal, defendant raised the single issue of whether the trial court improperly denied his motion to suppress evidence seized during a consensual search of defendant\u2019s vehicle. We affirmed the decision of the trial court on October 31, 2007. Defendant appealed to our supreme court which, in light of the postopinion case of People v. Cosby, 231 Ill. 2d 262 (2008), ordered this court to vacate its earlier judgment and reconsider its decision to determine if a different result is now warranted. People v. Roa, 229 Ill. 2d 687 (2008) (order). In light of Cosby, 231 Ill. 2d 262, we affirm the trial court\u2019s decision.\nBACKGROUND\nDefendant was operating a vehicle he recently purchased when an Illinois state trooper stopped him for speeding at 71 miles per hour in a posted 65-mile-per-hour zone on Interstate 80 in Henry County, Illinois. The officer, Sergeant Floyd Blanks, is a certified drug interdiction instructor and the drug interdiction coordinator for his district. He has been employed by the State Police for 17 years.\nAccording to the officer, after stopping defendant for speeding, he approached the car, advised defendant he was going to issue a written warning for speeding, and asked for defendant\u2019s license and registration. Blanks stated that defendant fumbled for those documents, seemed \u201cto exhibit more physical stress than most people do,\u201d and mumbled while staring straight ahead. Blanks immediately advised defendant he was going to issue a written warning. At some point during the traffic stop, Blanks asked defendant where he was traveling from and where he was going. Defendant told Blanks that he was traveling from Colorado to New York.\nBlanks said defendant seemed \u201cto exhibit more physical stress than most people do, along with a couple of other factors.\u201d Despite being informed that he was going to receive a warning, defendant remained nervous and, \u201cin this case, that\u2019s why I [Blanks] requested consent to search the vehicle.\u201d Blanks also noticed a new air freshener and a strong odor of air freshener emanating from the car, which piqued Blanks\u2019 suspicion.\nAccording to Blanks, when he returned to his squad car to write a warning ticket, he knew, \u201cwith [defendant\u2019s] nervousness, the odor of air freshener, *** [he] was going to try to obtain permission to search that vehicle.\u201d Blanks testified, \u201cI knew from my training and experience that something was amiss, something was wrong, so I requested assistance from Trooper Clint Thulen.\u201d\nBlanks did issue a written warning for the speeding violation. Once he delivered the written warning citation, Blanks returned defendant\u2019s license, registration and insurance card. According to defendant, as the officer started to return to his squad car, the officer said, \u201cWait a minute, Andres,\u201d and then asked defendant for permission to conduct a search of defendant\u2019s car. Defendant consented.\nAccording to Blanks, the conversation with defendant, before asking for consent, was slightly longer. The officer recounted that, after issuing a written warning and returning defendant\u2019s license and insurance card, he asked defendant if everything in the vehicle belonged to him and whether anyone had asked defendant to transport anything. Defendant responded that everything in the vehicle belonged to him and no one had asked him to transport anything. Blanks then asked if there was anything illegal in the vehicle, including any alcohol, weapons, or drugs. The defendant replied, \u201cno.\u201d Blanks then asked if he could search the vehicle. Defendant\u2019s response was, \u201cyes.\u201d According to Blanks, if defendant had refused permission to search his car, Blanks would have allowed him to drive away.\nAfter obtaining consent, Blanks asked defendant what was in the trunk. Defendant answered, \u201cantiques,\u201d and offered to show him an antique dealer\u2019s card. At Blanks\u2019 request, defendant opened the trunk and found it was empty. Blanks felt this was unusual since defendant had just told him there were antiques in the trunk.\nAs requested, Trooper Thulen arrived on the scene during the initial moments of the search, while Blanks was standing near the trunk of defendant\u2019s car. Together, the officers then proceeded to the front of the vehicle. Blanks noticed that the air bag area appeared to have been tampered with or modified. After a 20-minute search, which included using a fiberoptic scope, the officers discovered a hidden compartment containing cocaine. Later, when the compartment was disassembled, the troopers found the compartment contained a total of 24.2 pounds of cocaine. The cocaine was packaged in 11 separate packages.\nInitially, defendant faced three charges based on this evidence. Count I alleged defendant knowingly brought more than 900 grams of cocaine into the State of Illinois with the intent to deliver in violation of section 401.1(a) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401.1(a) (West 2004)). Count II alleged defendant knowingly possessed with the intent to deliver more than 15 but less than 100 grams of cocaine in violation of section 401(a)(2)(A) of the Act (720 ILCS 570/401(a)(2)(A) (West 2004)). Finally, count III alleged that defendant possessed more than 900 grams of cocaine in violation of section 402(a)(2)(D) of the Act (720 ILCS 570/402(a)(2)(D) (West 2004)).\nPrior to trial, defense counsel filed a motion to suppress the cocaine, alleging the police expanded a traffic stop into a drug investigation without probable cause. During the hearing on the motion, the trial court heard testimony from Sergeant Blanks regarding factors he considers when looking for drug-related activities. According to Blanks, ongoing nervousness is only one of many factors indicating illegal activity. Blanks explained to the court:\n\u201cThere are a number of things that we are trained to observe, such as third-party vehicles, vehicles rented by someone else, the odor of air freshener and masking agents in the vehicle, a vehicle that looks lived in, a vehicle with numerous energy drinks or coffee cups showing they\u2019ve been driving all night, cigarettes and nervousness, and I could go on and on, sir.\u201d\nTrooper Clint Thulen also testified at the suppression hearing. Thulen testified that he has been employed by the State Police for 14 years as a patrol officer and currently as a canine handler. When Thulen arrived on the scene of the stop, Blanks was searching defendant\u2019s trunk. According to Thulen, defendant appeared unusually nervous and exhibited signs of stress. Defendant seemed unusually uncomfortable, \u201cout of sorts,\u201d and avoided eye contact.\nFollowing the testimony of defendant, Sergeant Blanks and Trooper Thulen and arguments of counsel, the trial court denied the motion to suppress, finding Sergeant Blanks\u2019 search was properly based on three grounds. First, the court noted Sergeant Blanks had probable cause for the initial traffic stop based on speeding. Second, the court found the duration of the traffic stop was reasonable because Sergeant Blanks did not delay asking for consent to search. Finally, the judge concluded, based on the totality of the circumstances, Sergeant Blanks had a reasonable, articulable suspicion that defendant was engaged in criminal conduct.\nApplying a totality-of-the-circumstances approach, the court considered the officer\u2019s description of the circumstances the officer encountered. Relevant factors included defendant\u2019s extreme nervousness, mumbling, fumbling, straightforward gaze, abnormal physical stress, and a new air freshener that piqued the officer\u2019s curiosity and suspicion. The court heavily weighed Sergeant Blanks\u2019 vast experience in drug interdiction, finding Sergeant Blanks\u2019 training would give a person in his position a reasonable, articulable suspicion that there was some kind of criminal activity afoot. Accordingly, the trial court denied defendant\u2019s motion to suppress evidence.\nDefendant\u2019s first jury trial resulted in a deadlocked jury. Subsequently, the State dismissed counts I and III of the information and, following a stipulated bench trial on count II only, the trial judge found defendant guilty of unlawful possession with intent to deliver more than 15 grams but not more than 100 grams of a controlled substance, in violation of section 401(a)(2)(A) (720 ILCS 570/401(a)(2)(A) (West 2004)). The court sentenced defendant to 15 years\u2019 imprisonment. Following the denial of his posttrial motions, defendant timely appealed on the ground that his motion to suppress should have been granted.\nThis court issued an opinion in this case on October 31, 2007, affirming the decision of the trial court, and defendant then filed an appeal with our supreme court. On December 31, 2008, the supreme court denied defendant\u2019s leave to appeal, but entered a supervisory order requiring this court to vacate its prior judgment, in light of a postopinion case of People v. Cosby, 231 Ill. 2d 262 (2008), and directed this court to \u201creconsider its judgment *** to determine if a different result is warranted.\u201d Roa, 229 Ill. 2d 687.\nANALYSIS\nThe State, after remand from our supreme court, asserts the police officer\u2019s request for a consent to search defendant\u2019s vehicle did not constitute a seizure under the fourth amendment according to the holding in Cosby. Defendant, after remand, contends that defendant did not feel free to leave when Sergeant Blanks asked for consent to search the vehicle. Consequently, defendant argues that the conversation following the end of the traffic stop created a second seizure of defendant. Defendant further contends that this court must now adhere to the view that a second seizure occurred because this premise was adopted by the author in our earlier decision and then mirrored in Justice McDade\u2019s dissent to that decision.\nWe begin with defendant\u2019s contention that we are bound by the premise that a second seizure occurred in this case when the officer requested consent to search defendant\u2019s vehicle. This argument ignores that our supreme court issued a supervisory order with directions to this court to reconsider our judgment in light of the most recent pronouncement of law from our supreme court contained in Cosby. Cosby, 231 Ill. 2d 262.\nThis court\u2019s previous decision, now under review, was based, in part, upon our supreme court\u2019s decision in People v. Gonzalez, 204 Ill. 2d 220 (2003), which focused on the scope of the stop. The Gonzalez court originally pronounced a two-prong approach for determining whether a lawful traffic stop could become constitutionally impermissible by unduly prolonging the detention or by fundamentally altering the nature of the stop. Gonzalez, 204 Ill. 2d at 235. The Cosby court noted that the decision in Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), struck down the approach that focused on the alteration of the fundamental nature of the stop previously employed by our supreme court. See Cosby, 231 Ill. 2d at 276, citing People v. Harris, 228 Ill. 2d 222, 240 (2008). In Harris, our supreme court held that Gonzalez, 204 Ill. 2d at 220, has been \u201cunequivocally overruled\u201d by the Supreme Court\u2019s subsequent decision in Muehler. Harris, 228 Ill. 2d at 240.\nAlthough the duration prong clearly survives based upon Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), the alteration of the scope of the stop is no longer an appropriate consideration. Harris, 228 Ill. 2d at 240. Based upon the changes in the law since our first opinion, we reject defendant\u2019s contention that we are bound by our initial holding regarding a second seizure, which was based on case law that has since been interpreted and modified by other higher courts.\nGenerally, the review of a trial court\u2019s ruling on a motion to suppress involves a two-part standard of review, which presents mixed questions of law and fact. Cosby, 231 Ill. 2d at 271; People v. Luedemann, 222 Ill. 2d 530, 542 (2006). The reviewing court first examines whether the trial court\u2019s factual findings are against the manifest weight of the evidence. Luedemann, 222 Ill. 2d at 542. Second, we review de novo the trial court\u2019s ultimate ruling as to whether suppression is warranted. Harris, 228 Ill. 2d at 230.\nAs directed by our supreme court, we have vacated our prior judgment in this case and now must determine if a different outcome is warranted based on Cosby. The Cosby court analyzed the question of whether a consent to search after a traffic stop becomes a seizure by applying the principles set forth in its earlier case of People v. Brownlee, 186 Ill. 2d 501 (1999), and the United States Supreme Court\u2019s decision in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). Cosby, 231 Ill. 2d at 276-77. The Cosby case involved two consolidated cases for purposes of the appeal to the supreme court: People v. Cosby, No. 100681, and People v. Mendoza, No. 102584. In both cases, our supreme court determined that none of the Mendenhall factors were present and, therefore, fourth amendment seizures of the defendants did not occur. Cosby, 231 Ill. 2d at 282-88.\nFollowing the decision in Cosby, the mandates of Mendenhall are even clearer and the holding of Brownlee remains intact. In Brownlee, our supreme court acknowledged that an officer is always free to request permission to search. Brownlee, 186 Ill. 2d at 515, citing Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). However, our supreme court noted that a person is seized when, in view of all the facts and circumstances, he would not feel free to leave. Brownlee, 186 Ill. 2d at 517.\nQuestioning of a seized individual alone may not unduly prolong a stop or constitute an additional seizure within the meaning of the fourth amendment. Harris, 228 Ill. 2d at 243, citing Muehler, 544 U.S. at 101, 161 L. Ed. 2d at 309, 125 S. Ct. at 1471. Thus, we must apply the Mendenhall factors to determine if the questioning by Blanks, after issuing the warning ticket, would cause a reasonable person to feel he was not free to leave. Harris, 228 Ill. 2d at 243. The Mendenhall factors include: (1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer\u2019s request was compelled. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.\nFirst, Sergeant Blanks was the only officer present at the stop when the questioning regarding consent to search took place. Second, the officer did not display his weapon in a threatening manner. Third, there was no indication that the officer physically touched defendant. Finally, in reviewing the record, we find there is nothing to suggest that the officer used forceful language or an intimidating tone when communicating with defendant and requesting defendant\u2019s permission to search his vehicle. Accordingly, in the absence of all of the Mendenhall factors as applied to the facts in the instant case, we find that defendant was not seized for purposes of the fourth amendment. See Cosby, 231 Ill. 2d at 287-88.\nNext, we consider whether the four questions posed by Sergeant Blanks in this case unduly prolonged the encounter in violation of the fourth amendment. The record shows Blanks, after issuing the warning and returning the paperwork to defendant, immediately posed three questions that were short, succinct, and formulated to produce \u201cyes\u201d or \u201cno\u201d responses. The fourth and final question from the officer produced defendant\u2019s voluntary consent for the officer to conduct a search. These questions were similar in nature to the questions asked by the officers in Cosby. Therefore, we conclude the inquiries by Blanks did not unfairly convert this lawful stop into an unconstitutional seizure of defendant or his vehicle.\nThere are three tiers of lawful police-civilian encounters: (1) arrests supported by probable cause; (2) brief investigatory detentions, justified by a reasonable, articulable suspicion of criminal activity (Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); and (3) consensual encounters involving no coercion or detentions that do not implicate fourth amendment interests. Luedemann, 222 Ill. 2d at 544. Here, the initial traffic stop was based upon probable cause to believe defendant was speeding.\nOriginally, in his special concurring opinion, Presiding Justice Lytton concluded the police-citizen interaction after the officer delivered the written warning qualified as a third-tier \u201cconsensual encounter\u201d under Luedemann, 222 Ill. 2d at 544. People v. Roa, 377 Ill. App. 3d 190, 205 (2007) (Lytton, P.J., concurring). The decision in Cosby reveals Justice Lytton was correct. In light of Cosby, we are now in agreement that Blanks\u2019 request for consent to search was constitutionally permissible under the fourth amendment as a third-tier consensual encounter.\nWhile defendant admits his decision to give Sergeant Blanks his consent to search was voluntary, on remand defendant alleges Blanks waited several additional minutes for Officer Thulen to arrive. Defendant also argues that his consent to search was limited in scope. The record reflects that Sergeant Blanks testified defendant consented to his search of the \u201cvehicle\u201d and that he began the search before the arrival of Officer Thulen.\nThe conflict in the testimony required the trial court to make a credibility determination regarding the duration of the stop and the scope of the consent. Matters of credibility are for the trial court to decide. This court should not rule on such matters because the trial court was in a position to observe the witnesses, assess their demeanor, and make credibility judgments based on a firsthand encounter with the witnesses. People v. Hornsby, 277 Ill. App. 3d 227, 230-31 (1995). Here, the record sustains the trial court\u2019s finding that Blanks was a credible witness. We conclude the court\u2019s findings were not against the manifest weight of the evidence simply because the circumstances that triggered the officer\u2019s suspicion involved multiple layers of conduct which, standing alone, could be considered as innocent, law-abiding behavior.\nAs stated in our prior opinion, effective and efficient interstate drug couriers can successfully avoid apprehension by camouflaging their illegal activity with something as innocuous as an air freshener. Meaningless minutiae that might go unnoticed by the untrained person may become a significant factor to an experienced drug interdiction officer considering the totality of the circumstances attendant to the traveler at hand. The trial judge found the officer\u2019s testimony credible and the basis of his suspicions justified.\nPursuant to the directive of our supreme court, we vacate our previous judgment in this case. Additionally, based upon our de novo review of the facts as applied to the most recent case law, we hold the motion to suppress contraband was properly denied because defendant\u2019s interaction with Officer Blanks, after receiving the written warning, was voluntary and consensual. Accordingly, we affirm the circuit court\u2019s decision to deny defendant\u2019s motion to suppress evidence seized from his vehicle.\nCONCLUSION\nThe judgment entered in this case on October 31, 2007, has been vacated. Additionally, after reconsidering our previous decision in light of Cosby as directed by the supervisory order of our supreme court, we affirm the order of the circuit court of Henry County denying defendant\u2019s motion to suppress the evidence obtained from the consensual search.\nAffirmed.\nLYTTON, J., concurs.\nIn this case, the State concedes that the traffic stop for speeding ended with the delivery of the written warning citation. However, this concession is no longer relevant because the nature of the scope of the stop is no longer a valid consideration after the Harris decision. Harris, 228 Ill. 2d at 244.", "type": "majority", "author": "JUSTICE WRIGHT" }, { "text": "JUSTICE McDADE,\ndissenting:\nThe majority affirms the drug conviction of Andres Roa, rejecting his challenge to the denial of his motion to suppress evidence on the grounds that the interaction following the return of Roa\u2019s documents was \u201cconsensual.\u201d For the reasons that follow, I believe the conviction should be vacated, and the defendant should have a new trial. I, therefore, dissent from the decision affirming his conviction.\nFACTUAL AND PROCEDURAL BACKGROUND\nIn February 2004, Andres Roa was driving on Interstate 80 in Henry County when he was stopped by Sergeant Floyd Blanks, who testified that, according to radar, defendant was exceeding the speed limit by six miles per hour. After pulling the defendant over, Blanks told him, ostensibly to allay his nervousness, that he was only going to give him a warning ticket. Roa produced his driver\u2019s license, vehicle registration, and proof of insurance. Nothing in the record indicates that this was a rental car or that defendant was otherwise not its owner. Blanks returned to his squad car to check Roa\u2019s documents and became determined that, because of the defendant\u2019s \u201cextreme\u201d nervousness and the presence of an air freshener in his car, he was going to secure Roa\u2019s consent and search his car. At that time he requested assistance from Trooper Clint Thulen.\nHe returned to the defendant\u2019s car. After giving Roa his documents, presumably freeing him to drive off, Blanks stopped him with the command, \u201cwait a minute, Andres,\u201d asked him three questions suggesting he believed Roa could be engaged in some criminal conduct, and then requested, and received, consent to search something \u2014 Roa says it was only the trunk and Blanks says the vehicle. Although there is some dispute about where Roa was and when the request to search was made relative to the arrival of Trooper Thulen, we accept, as People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262, 267 (2005), requires us to do, the testimony of the two officers that Thulen arrived while Blanks, having secured Roa\u2019s consent, was standing near the trunk of defendant\u2019s car, preparing to search.\nThe officers searched the entire vehicle for 20 minutes, finally discovering, with the help of a fiber-optic scope, a hidden compartment near the air bag which contained 11 packages of cocaine, totaling 24.2 pounds. Roa was arrested and charged with one count of possession and two counts of possession with intent to deliver. His defense attorney moved to suppress the drugs, claiming there had been no probable cause for the extended detention of the defendant.\nAt the hearing on the motion to suppress, the trial court heard testimony from Sergeant Blanks, Trooper Thulen, and the defendant, after which the court denied the defendant\u2019s motion to suppress based on its factual findings that: (1) the defendant was speeding, providing the officer with probable cause for the initial traffic stop; (2) the duration of the traffic stop was reasonable because the officer did not delay unduly in asking for consent to search; and (3) the officer had a reasonable, articulable suspicion that the defendant was engaged in criminal conduct justifying the extended detention.\nOn the basis of these findings, the drugs that had been found in Roa\u2019s vehicle were ruled admissible for trial. The charges were first tried to a jury which deadlocked and was unable to reach a verdict. The State then dropped two of the three counts and the second trial proceeded on the single charge of possession with intent to deliver between 15 and 100 grams of a controlled substance. This charge was prosecuted in a bench trial on stipulated evidence. The trial court found defendant guilty and sentenced him to 15 years in the Department of Corrections.\nRoa, having properly preserved his issue, filed a timely notice of appeal asserting only that the trial court had erred in denying his motion to suppress the evidence of drugs seized when his vehicle was searched following a traffic stop. This court issued an order finding (1) that the initial traffic stop was proper because there was probable cause to believe that the defendant was speeding; (2) the original stop ended but, because Roa\u2019s departure had been halted by the officer\u2019s show of authority, there had been a second seizure of the defendant; and (3) the second seizure was supported by a reasonable, articulable suspicion that the defendant was engaging in criminal conduct; therefore, (4) the motion to suppress was properly denied and the defendant\u2019s conviction was proper and should be affirmed. Justice Lyt-ton concurred in the result but believed that there had been no second seizure because the extended encounter with the officer had been consensual on the part of the defendant and, therefore, the search of defendant\u2019s vehicle was proper and the conviction should be affirmed. I dissented, agreeing with Justice Wright that the initial stop had been proper and that there had been a second seizure, but I would have found that seizure to have been made without a reasonable, articu-lable suspicion that the defendant was engaged in criminal conduct and that the court\u2019s contrary conclusion was against the manifest weight of the evidence. For that reason, I believed the motion to suppress should have been granted and would have reversed the conviction and remanded for a new trial without the seized contraband.\nThe defendant petitioned for leave to appeal and the supreme court issued a supervisory order \u2014 one of several similarly grounded\u2014 directing that our earlier decision be vacated and the case reconsidered in light of its recent decision in People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008). We allowed the parties to file supplemental briefs. There is now a new majority opinion finding that the initial traffic stop was proper, there was no second seizure because the encounter following the traffic stop was consensual, the motion to suppress was properly denied, and affirming the conviction. 398 Ill. App. 3d at 166.\nANALYSIS\nIn our reconsideration pursuant to the supervisory order, the fundamental issue in this appeal remains the same: whether the evidence seized during the search of the defendant\u2019s vehicle was properly admitted at trial or should have been suppressed.\nBoth the United States and Illinois Supreme Courts have told us that we review this question under a two-pronged standard. Our first inquiry is whether the historical factual determinations made by the trial court are supported by the manifest weight of the evidence presented or whether there has been clear error. Our second is a de novo review of whether the trial court\u2019s ultimate legal ruling concerning suppression is warranted. Cosby, 231 Ill. 2d at 271, 898 N.E.2d at 609, citing People v. Luedemann, 222 Ill. 2d 530, 542-43, 857 N.E.2d 187 (2006), citing Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996). Because of the major change effected by Cosby, I will look at the second prong first.\nWhat does Cosby hold?\nIn People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008), the Illinois Supreme Court considered \u2014 in the consolidated appeals from the appellate court decisions in People v. Cosby, No. 100681, and People v. Mendoza, No. 102584 \u2014 the proper analytical framework for determining whether a prolonged contact following a traffic stop was a consensual encounter or a second seizure. Initially, the court reiterated its earlier holding in People v. Harris, 228 Ill. 2d 222, 886 N.E.2d 947 (2008), that, pursuant to Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), a traffic stop could no longer become constitutionally infirm simply because the fundamental nature of the stop had changed. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612. The Cosby court thus affirmed that the prong of People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003), on which our now-vacated decision in the instant case had rested, is no longer good law. Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.\nThe court then set out the analysis for resolving questions about the nature and propriety of a vehicle search and the extended questioning of a motorist who had previously been detained for a traffic violation.\nNoting that the relevant question in Cosby\u2019s case was whether Kaus\u2019s request to search Cosby\u2019s car after the traffic stop had ended constituted a new seizure for fourth amendment purposes, the Cosby court analyzed that question \u201cunder the principles set forth in Brownlee[ ] and Mendenhall[ ]\u201d Cosby, 231 Ill. 2d at 276, 898 N.E.2d at 612.\nThe court then described the stop in Brownlee, concluding that the actions of the two officers in standing on either side of (flanking) the car for two minutes without speaking would cause a reasonable person to believe, consistently with Mendenhall, she was not free to leave. Cosby, 211 Ill. 2d at 277, 898 N.E.2d at 613. Neither the Brownlee nor Cosby court has equated that conduct to any of the Mendenhall factors. Brownlee thus holds out the possibility that there can be a second seizure even though not one of the Mendenhall factors is clearly present.\nIndeed, the Cosby court stated:\n\u201cIt is true that the Mendenhall factors are not exhaustive and that a seizure may be found on the basis of other coercive police conduct similar to the Mendenhall factors.\u201d Cosby, 231 Ill. 2d at 281, 898 N.E.2d at 615, citing People v. Luedemann, 222 Ill. 2d 530, 557, 857 N.E.2d 187 (2006).\nThe court went on to say, however, that in its decisions in Luedemann, People v. Murray, 137 Ill. 2d 382, 560 N.E.2d 309 (1990), and People v. Smith, 214 Ill. 2d 338, 353-54, 827 N.E.2d 444 (2005), as had been the case in Mendenhall itself, the court \u201crelied on the absence of the Mendenhall factors to conclude that no seizure had taken place.\u201d Cosby, 231 Ill. 2d at 281.\nThe court further stated, again citing Luedemann:\n\u201c \u2018Even in the absence of cases such as Mendenhall, Murray, and Smith, it would seem self-evident that the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive. *** Obviously, a seizure is much less likely to be found when officers approach a person in such an inoffensive manner.\u2019 *** Luedemann, 222 Ill. 2d at 554.\u201d Cosby, 231 Ill. 2d at 281, 898 N.E.2d at 615.\nAddressing the totality-of-the-circumstances factor raised by the dissent, the court said:\n\u201c \u2018This court expressly adopted [the Mendenhall] factors in Murray. The \u201cin view of all the circumstances\u201d language must be read in concert with, not in opposition to, the factors. [Citation] The factors illustrate what type of police conduct would give a reasonable person an objective reason to believe that he or she was not free to leave or was not free to decline an officer\u2019s requests.\u2019 Luedemann, 222 Ill. 2d at 554-55.\u201d Cosby, 231 Ill. 2d at 282, 989 N.E.2d at 616.\nThe court then concluded:\n\u201cThe reality in Cosby\u2019s case is that none of the Mendenhall factors are present. Therefore, the dissent\u2019s insistence that Cosby was seized is not supported by the record.\u201d Cosby, 231 Ill. 2d at 282, 898 N.E.2d at 616.\nAlthough this would appear to foreclose any possibility of finding a second seizure unless one of the Mendenhall factors is present, the court returned to Brownlee, saying:\n\u201cIn Brownlee, after the driver had been handed back his paperwork by one of the two officers and had been told that no ticket would be issued, both officers, who were on opposite sides of the vehicle, stood at their stations, saying nothing. After about two minutes had elapsed, the officer standing next to the driver\u2019s door asked for permission to search the vehicle. After asking whether he had a choice, the driver consented. This court held that the officers\u2019 actions constituted a show of authority and that a reasonable person in the driver\u2019s position would not have felt free to leave. Thus, the driver and his passengers were subjected to a seizure.\u201d Cosby, 231 Ill. 2d at 283, 898 N.E.2d at 616.\nAt no time that I have been able to find has the court ever found that the situation in Brownlee involved any of the Mendenhall factors. That conclusion was not clearly drawn either in Brownlee itself or in Cosby.\nAt the end of its analysis in Cosby\u2019s case, the court held that \u201cCosby was not seized and that his consent to search his car was therefore voluntary.\u201d Cosby, 231 Ill. 2d at 285, 898 N.E.2d at 617.\nTurning then to Mendoza, the court stated its intent to \u201capply the Brownlee analysis to Mendoza\u2019s appeal.\u201d Cosby, 231 Ill. 2d at 286, 898 N.E.2d at 618. Having so said, however, the court stated that \u201c[njone of [the Mendenhall] factors are present in Mendoza\u2019s case.\u201d Cosby, 231 Ill. 2d at 287, 898 N.E.2d at 618. The court then reiterated the four factors and tested every fact on which the appellate court had based its decision that Mendoza had been seized for its fit with one of the Mendenhall factors. After noting that there were only two officers rather than several, that the guns were not displayed to Mendoza in the way contemplated in Mendenhall, that neither officer testified to physically touching Mendoza, and that the record did not suggest that they had spoken to Mendoza in a way suggestive of a requirement of compliance, the court stated: \u201cThe absence of all the Mendenhall factors strongly suggests that Mendoza was not seized for fourth amendment purposes.\u201d (Emphasis added.) Cosby, 231 Ill. 2d at 287, 898 N.E.2d at 619.\nDuring the course of its opinion, the Cosby majority, in responding to the factual and legal challenges raised by the dissent, appeared to refine and clarify its position with respect to the role of the Mendenhall factors in the determination of whether a second seizure has occurred following a traffic stop. They have created what appear to be two conclusions: first, that, in the wake of Cosby, Brownlee remains good law to the extent of its statement of the general legal principle that a person is seized when, in view of all the facts and circumstances, the person would not feel free to leave. Brownlee, 186 Ill. 2d at 517, 713 N.E.2d at 564.\nSecond, there now seems to be an almost mandatory presumption that a reasonable person would feel he or she was free to leave the scene once a traffic stop has ended unless the police officer engages in the threatening or coercive conduct identified in the four Mendenhall factors. Absent that specific- conduct, any continuation of the encounter that began with the traffic stop is deemed \u201cconsensual.\u201d\nPut another way, unless several police officers act in a threatening manner, one officer waves or points a weapon at the motorist, an officer physically touches the person of the citizen (presumably in a threatening or coercive way), or an officer employs a threatening tone or forgets to smile or sound friendly when he is telling the motorist to wait, or answer questions about criminal activity or give consent to search his vehicle, there is no show of authority that would lead a reasonable person to feel he or she was not to leave \u2014 a motorist who does not simply get in his car and drive away while the officer is standing by the vehicle talking is remaining voluntarily.\nWhat is the impact of Cosby on the instant case?\nI have no quarrel with the author\u2019s review of the extant law relevant to searches during or following traffic stops as most recently interpreted by the Illinois Supreme Court in Cosby. I do, however, not agree that Cosby requires us to affirm Roa\u2019s conviction. I write separately to support that disagreement and to express, respectfully, my belief that Cosby is flawed and my hope that the supreme court will consider revisiting that decision.\nPursuant to the supervisory order, we have reconsidered our earlier decision in this case. The majority has clearly read Cosby\u2019s legal construct in the same way I have, and has abandoned our earlier majority finding that there had been a second seizure of Roa, and has now found that, since none of the Mendenhall factors were present in this case, there was no show of police authority and this was merely a consensual encounter between the officers and Roa. Even without looking beyond Mendenhall, however, I believe we must vacate Roa\u2019s conviction and remand the case for a new trial for several reasons. Moreover, if, as the Cosby court plainly leaves open, there may be, although the possibility is remote, other situations that can create seizures, the majority decision is incomplete because of its total failure to look beyond the Mendenhall factors for evidence of a seizure.\nI believe the new majority decision is apparently consistent with those portions of the supreme court\u2019s legal analysis in Cosby that suggest that, if there are no Mendenhall factors, there is no seizure. The majority simply finds that no Mendenhall factors are present in this case. I believe the record suggests the possible presence of at least one factor and would reverse for further proceedings to make that determination.\nAt the time of the hearing on Roa\u2019s motion to suppress and of his jury and bench trials, the focus of the defense, the prosecution, and the court was on whether Sergeant Blanks had a reasonable, articu-lable suspicion that Roa was engaging in criminal conduct when he prolonged the detention after concluding the traffic stop. Prosecuting and defending the charges on this basis was fully supported by viable supreme court authority.\nThe decision of the trial court was grounded in its determination that the tacitly recognized seizure was proper because, considering the totality of the circumstances, Blanks had a reasonable, articulable suspicion that Roa may have been part of the nation\u2019s drug traffic. In our first review, the majority found that there had been a second seizure and the determination of whether the conviction should be affirmed or reversed rested entirely on the existence or absence of that reasonable, articulable suspicion of Roa\u2019s wrongdoing. Even though Justice Lytton\u2019s special concurrence found the encounter to be consensual, he did so without any citation to Mendenhall or analysis of its four factors.\nCosby profoundly altered the legal landscape. The supreme court\u2019s recognition of that fact is clear in its analysis in the case and is implicit in the number of supervisory orders that were issued directing the appellate court to vacate earlier decisions and reconsider the cases in light of its Cosby decision. Concepts of fundamental fairness and rudimentary due process would reasonably suggest that cases that were prosecuted, defended, and decided entirely on a legal basis that was sound at the time they were both tried and reviewed by the appellate court, but were subsequently invalidated by the supreme court, should be retried to allow the parties to actually present evidence tailored to the new bases for decision.\nI acknowledge that this was not the way in which the supreme court disposed of the appeals of Cosby and Mendoza and recognize that their disposition may authorize us to forego a remand. My concern, however, is that facts which may not have seemed to warrant particular articulation or emphasis under one legal theory may assume far greater importance when proceeding under a different one. In that circumstance, the fact that something does not appear in the record is not dispositive of whether it exists. But even if I am wrong on the basic policy question, I still believe that remand is required in this particular case.\nUnlike the situation in Cosby, there is something in the Roa record that seems relevant to one of the Mendenhall factors and which seems to me to require fleshing out and clarification. Both the officer and the defendant testified that, after he returned Roa\u2019s documents and gave him the warning ticket, Blanks said, \u201cwait a minute, Andres.\u201d There was no testimony about Blanks\u2019 tone of voice, body language or attitude at the time he uttered words that clearly could have been a command. Nor is there any express testimony about the manner in which Blanks asked the three questions that hint of his admitted suspicion of Roa\u2019s wrongdoing or asked to search. There is Roa\u2019s testimony that he thought he had to stay. When asked why, if he had only agreed to tender his trunk, he did not object when the officer proceeded to hit on the passenger door of the car and search under the hood and check inside the engine, he said, \u201cI can say he\u2019s the police, what can I do? *** You know, I think they are the law, they are the police. You know, I don\u2019t want to be in trouble, you know.\u201d Because I believe there is enough in the record to suggest that Roa might be able to show the presence of at least one of the Mendenhall factors, I would reverse his conviction and remand the case for a new suppression hearing focused on evidence pertinent to those factors.\nI believe a fair reading of Mendenhall clearly shows that the presence of a single \u201cfactor\u201d is sufficient. The Mendenhall court stated:\n\u201cWe conclude that a person has been \u2018seized\u2019 within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the 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. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.\u201d (Emphasis added.) Mendenhall, 446 U.S. at 554-55, 64 L. Ed. 2d at 509-10, 100 S. Ct. at 1877.\nThus, if, upon remand, the court finds the presence of one of the Mendenhall factors, the defendant was seized at the time he was questioned and his vehicle was searched. The court would then need to determine whether the seizure was supported by probable cause or reasonable suspicion or was illegal. See Cosby, 231 Ill. 2d at 277, 898 N.E.2d at 613.\nShould such an analysis be required, the question for the court would be whether, considering the totality of the circumstances, the officer had a reasonable, articulable suspicion that Roa was engaged in criminal conduct. In this court\u2019s earlier decision, I concluded that the trial court\u2019s finding that Sergeant Blanks had a reasonable, articu-lable suspicion to believe that Roa was engaged in criminal conduct was against the manifest weight and that the first prong of our standard of review had not, therefore, been met. If this case were remanded \u2014 as I think it should be \u2014 and if the trial court should find the presence of a Mendenhall factor \u2014 which I think is possible \u2014 the trial court would have to undertake a new analysis of the totality of the circumstances to determine whether Blanks had the requisite reasonable, articulable suspicion. I would still find that, given the totality of the circumstances in this case, a finding that he did would be against the manifest weight of the known facts.\nWhen that analysis was done in the earlier case, there were facts elicited in the examination of Sergeant Blanks which, to my knowledge, have not been available to the court in prior cases and which I believe to be highly relevant.\nAs judges, we get a false sense of the reliability of the indicators that drug interdiction teams \u2014 and police officers generally \u2014 use in profiling drivers. The only time these stops come to our attention is when contraband is actually found during a search of the vehicle. It tends to appear, therefore, that the law enforcement officers are right 100% of the time. But Sergeant Blanks disabused us of that notion in his testimony. The dialog was as follows:\n\u201cQ. And when you talk about those thousand, roughly a thousand interdiction stops that you\u2019ve personally made, are those a thousand that have led to the discovery of some sort of contraband, or is that just a thousand stops and then you conducted an investigation and it went one way or another?\nA. A thousand that have led to the discovery of some kind of contraband.\nQ. OK. How many drug interdiction stops would you say you\u2019ve made where there\u2019s been no discovery?\nA. Two thousand.\nQ. OK.\nA. Minimum.\nQ. So there are times, and in fact more often than not, if I hear you correctly, where you don\u2019t discover something that you think might be there?\nA. Yes, sir.\u201d (Emphasis added.)\nThe testimony was that Sergeant Blanks was wrong in two out of every three detentions he made and searches he undertook using the factors he enumerated. Stated another way, it is two times more likely that, using Sergeant Blanks\u2019 track record as a guide, Roa was innocent of wrongdoing rather than guilty. That hardly supports a conclusion that the factors, singly or in combination, constitute \u201creasonable\u201d suspicion justifying extending the duration of a minor traffic stop to the time necessary to conduct a full-blown search for drugs.\nIt is also worth noting that at least 2,000 innocent motorists were detained and their vehicles were searched to no avail by this one officer alone. If those stops were like this one, the delays were significant and the searches far ranging, including the areas under the hood, in the engine, and behind the airbag.\nThe trial court made it absolutely clear that its decision that there was a reasonable suspicion of criminal activity was based on Sergeant Blanks\u2019 \u201cvast\u201d experience, stating:\n\u201cI have to look at it as an officer with Trooper Blanks\u2019 experience would look at it. *** [Blanks] has 17 years of experience or more. It\u2019s not like *** somebody that is a rookie that just came on. And I have to look at that. That\u2019s the totality of the circumstances. I have a trooper here that has been \u2014 has significant training, and I\u2019m well aware [Blanks] has been in court many, many times in these situations, and obviously from his testimony here, [Blanks] knows what he\u2019s doing. He can describe the \u2014 the scent of \u2014 of cocaine. He can describe masking agents and *** he\u2019s very well versed in \u2014 in cocaine trafficking or in controlled substance trafficking.\u201d\nBut he was, by his own testimony, wrong more than 67% of the time. That kind of experience should not inspire much confidence in either the rationality or the predictive ability of the factors on which he has relied for 17 years and on which he teaches others to rely. If you are wrong 67% of the time you rely on innocent conduct, the inevitable and legitimate question raised is whether those factors can, in and of themselves, constitute reasonable, articulable suspicion of criminal conduct. Surely they cannot.\nTaking into account the fact that the trial court could not consider what Blanks found to determine whether he had a reasonable suspicion of criminal activity, there is nothing to show that the trial court made any evaluation of how or why these factors, viewed independently and objectively by the court, were more reliable or reasonable in this case than they were in the more than 2,000 cases in which the officer relying on them was wrong. Indeed, there is no indication that the trial court either acknowledged or considered Sergeant Blanks\u2019 admission of significant fallibility. When the trial court and courts of review view the factors allegedly giving rise to an articulable suspicion of criminal activity not objectively but through the lens of the officer\u2019s experience, as the trial court and the majority in its earlier decision in this case expressly did, any reasonable assessment of the factors as predictors of criminal activity can only appropriately be done taking his 67% failure rate into consideration.\nAgain, should such a review be necessary on remand of the case, I believe consideration of this information should be a significant part of the assessment of whether the officer had a suspicion of Roa that was reasonable for two reasons. First, our judicial system promises fair process of the guilty as well as the innocent. That process requires consideration of all relevant factors, not just those that support a finding of guilt. There are at least 2,000 innocent (except of traffic violations) motorists who were stopped in their travels, questioned, and subjected to a search of their vehicles (which, if they were like the ones in this case, consumed quite a bit of time) for no valid reason. Our decisions in these cases affect them every bit as much as they do the defendants in the individual cases. There should be something more than a hunch that causes them inconvenience.\nFor all of the foregoing reasons, I dissent.\nBlanks asked Roa if everything in the vehicle belonged to him, whether anyone had asked him to transport anything, and whether there was anything illegal (weapons, alcohol or drugs) in the vehicle.\nPeople v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999).\nUnited States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980).", "type": "dissent", "author": "JUSTICE McDADE," } ], "attorneys": [ "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, and Maureen Williams (argued), of Peoria, for appellant.", "Terence M. Patton, State\u2019s Attorney, of Cambridge (Terry A. Mertel (argued), 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. ANDRES ROA, Defendant-Appellant.\nThird District\nNo. 3\u201405\u20140420\nOpinion filed February 10, 2010.\nMcDADE, J., dissenting.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, and Maureen Williams (argued), of Peoria, for appellant.\nTerence M. Patton, State\u2019s Attorney, of Cambridge (Terry A. Mertel (argued), of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0158-01", "first_page_order": 174, "last_page_order": 193 }