Court rules out drug dog for out-of-state car

By Andrew Maloney 

Law Bulletin staff writer

October 18, 2017

(Kathleen Colton represented Jessica Johnson)

SPRINGFIELD — A drug-dog sniff has been deemed out-of-bounds by an appeals court.

The 2nd District Appellate Court has ruled the sniff that led to cannabis, heroin and handguns was illegally procured by an officer’s request for proof of insurance from out-of-state drivers.

Since Illinois’ liability-insurance requirements only extend to vehicles registered in-state, a sheriff’s deputy’s request for an insurance card from a passenger in a Minnesota car unnecessarily prolonged the traffic stop, the panel wrote this week.

Justice Michael J. Burke authored the 12-page opinion filed Tuesday in the consolidated case of People v. Derek Paddy, Jessica Johnson and Leo Cook, saying that the requirements of the Illinois Vehicle Code as well as an earlier appellate court decision had made clear that only Illinois cars could be penalized for not having proof of insurance.

“When read together, those provisions unambiguously provide that a vehicle properly registered in Minnesota need not comply with the liability-insurance requirements of the Vehicle Code,” the panel wrote. “Thus, Sergeant [Ron] Hain, who had ascertained that the vehicle was properly registered in Minnesota, was not reasonable in his mistaken belief that Johnson needed to provide proof of insurance.”

Hain, a Kane County officer patrolling Interstate 90, flagged the defendants in November 2015 when he saw their heavily-tinted windows on a Chevrolet Impala with Minnesota license plates following too closely behind a tractor trailer. He would testify that the two passengers in the car, Paddy and Cook, appeared nervous after he stopped them and approached the vehicle.

He had Johnson, the driver, exit the vehicle and talked with her in the front seat of his squad car while he prepared a warning for following too closely. Johnson had given him her Minnesota driver’s license, but no insurance card. She told him she planned to fix the windows and that they had just dropped off a friend in Chicago whose relatives had died.

The officer completed the warning, but left it on the clipboard. He requested backup from a canine handler and told Johnson to wait while he went back to the car and asked Cook for an insurance card.

He again said Cook exhibited signs of nervousness, but also said he saw what appeared to be cannabis flakes on his face, chest and clothes. Cook also told him they had just picked up Paddy from Chicago, which he believed contradicted Johnson’s statement.

He had both men exit the car and, once the dog and his handler arrived, had the dog conduct a drug sniff. Although the handler, officer Ryan Monaghan, would testify that the dog didn’t signal drugs the way it was supposed to, he still told Hain it had sniffed drugs.

Hain searched the car and found two loaded handguns, $8,000 cash in Johnson’s purse and a large amount of heroin in a backpack. All three defendants were indicted on armed violence, possession and intent to deliver charges.

They filed motions to suppress the evidence. And 16th Judicial Circuit Judge Donald M. Tegeler Jr. granted them, ruling that because the officer had completed the written warning and knew the vehicle was properly registered in Minnesota, he knew — or should have known — he didn’t need to ask to see proof-of-insurance from Cook.

The state appealed, arguing any mistake about proof-of-insurance was objectively reasonable; that the officer was entitled to generally ask about insurance from the car’s occupants; and that he had probable cause even without the sniff.

Citing the U.S. Supreme Court’s 2015 decision in Rodriguez v. United States, the appeals panel wrote that a police stop becomes unlawful if it goes beyond the time reasonably required to complete the tasks tied to the stop.

Officers can check on licenses, outstanding warrants and other issues, but dog sniffs go beyond what is considered to be incidental to a normal traffic stop.

“In this appeal, the dispositive issue is whether the mission of the traffic stop had been completed such that the dog sniff unduly prolonged the stop, in violation of the [F]ourth [A]mendment. It did,” Burke wrote.

He added that the mission of the stop was complete once the officer wrote the warning, and it became unduly prolonged when he returned to the Impala to ask for an insurance card.

The state argued that another high court case, the 2014 decision in Heien v. North Carolina, gives officers leeway on the issue if they make an objectively reasonable mistake in interpreting the law. But the panel wrote that multiple sections of the Illinois Vehicle Code make clear that only cars registered in Illinois are subject to its proof-of-insurance requirements and a 2001 state appeals court decision in People v. Benton, also held the same.

Thus, the officer’s mistake was not objectively reasonable, and he knew or should have known he was prolonging the stop unnecessarily.

“Because Sergeant Hain unduly prolonged the traffic stop when he returned to the vehicle to ask Cook for proof of insurance, the evidence gathered thereafter — including Cook’s version of the travel itinerary, the cannabis flakes seen on Cook, the additional indicia of Cook’s and Paddy’s nervousness, and the positive dog alert — was obtained in violation of the [F]ourth [A]mendment,” the panel wrote.

Absent the sniff, there was no additional probable cause to search the vehicle, the panel concluded. Hain had testified that Chicago and Minnesota are popular drug-trafficking destinations, but the trial court ruled that — and the passengers’ nervous behavior — were insufficient on their own to warrant a search.

“There needed to be some additional evidence to establish that Minnesota and Chicago are endpoints of drug trafficking,” the panel wrote. “Moreover, even if they are, merely driving to and from those locations would not alone support probable cause to search for evidence of drug trafficking.

Nor was the abbreviated stay in Chicago particularly suspicious in light of Johnson’s explanation that they had driven to Chicago to drop off a friend whose family member had died.”

Burke was joined by Justices Mary Seminara Schostok and Robert D. McLaren in the decision, which affirmed the trial court’s decision to suppress the evidence.

David J. Robinson, a deputy director of the state’s attorneys’ appellate prosecutor’s office, which represented the state, said the office will “strongly consider” asking the Illinois Supreme Court to take up the case.

He noted the Heien case involved a mistaken belief that drivers had to have two functioning brake lights, and that’s arguably “a more day-to-day, operational stop than asking for insurance would be.”

“A reasonable police officer would think or could think that they have to have insurance, too,” Robinson said. “So, those are the sorts of things that we would look at.”

Thomas A. Lilien, deputy defender in charge of the 2nd District for the Office of the State Appellate Defender, said “the ball’s in their court” in terms of preparing for an appeal on the case.

He reiterated that the law is clear about insurance requirements for out-of-state drivers.

“The stop here wasn’t objectively reasonable because the law was established, which is, the insurance requirements don’t apply,” he said.