Opinion
3-21-0407
11-14-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES M. ABRAMOWICZ, Defendant-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 19-CF-797 Honorable Carmen Julia Goodman, Judge, Presiding.
JUSTICE HAUPTMAN delivered the judgment of the court. Justices McDade and Hettel concurred in the judgment.
ORDER
HAUPTMAN, JUSTICE
¶ 1 Held: The circuit court erred in granting defendant's motion to suppress.
¶ 2 The State appeals the Will County circuit court's order granting defendant, James M. Abramowicz's, motion to suppress evidence. The State argues the court erred in granting the motion because the search of defendant's vehicle was supported by probable cause and the traffic stop was not unduly prolonged. We reverse and remand.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged with three counts of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2018)) stemming from an April 2, 2019, traffic stop. Defendant filed a pretrial motion to quash and suppress evidence.
¶ 5 At a hearing, Officer Russell Borrowdale of the Tinley Park Police Department testified that he was assigned to a drug enforcement task force and had several years' experience with narcotics investigations. He had been involved in approximately 300 narcotics investigations and had completed over 10 training classes specializing in various aspects of narcotics investigations, including the behaviors and characteristics of people who are using or dealing narcotics.
¶ 6 On April 2, 2019, at approximately 3:07 p.m., Borrowdale was parked in a parking lot near 183rd Street and Harlem Avenue. At that time, Borrowdale was making plain view observations of people in the area, looking for any indicators of potential drug activity. He indicated that, based on his experience as an officer, this area was frequently used by individuals who are ingesting drugs or making drug transactions.
¶ 7 Borrowdale observed a blue Ford Escape parked approximately 15 feet away from him with no other vehicle between them. Borrowdale's windows were tinted. His view of the vehicle and its occupants was unimpeded. Borrowdale observed defendant in the driver's seat and a female, later identified as Sarah Price, in the front passenger's seat, both continuously looking around the parking lot. Based on Borrowdale's training and experience, that conduct indicated that the occupants were likely searching the area for police in an attempt to avoid detection, before beginning an illegal activity.
¶ 8 At approximately 3:15 p.m., Borrowdale observed Price bend down toward her lap, rise, and wipe her nose. Defendant then bent down toward his lap, rose, and wiped his nose. Borrowdale testified that these actions indicated that the occupants were nasally ingesting drugs. Shortly thereafter, defendant drove out of the parking lot. He was not wearing his seat belt. Borrowdale followed defendant to effectuate a traffic stop but waited for him to pass a gas station. Borrowdale explained that people often did hand-to-hand drug transactions at that location, and he wanted to see if defendant would stop there and conduct another illegal activity. Defendant did not stop at the gas station, so Borrowdale stopped him after passing that location. Less than one minute had elapsed since defendant had exited the parking lot.
¶ 9 When Borrowdale approached defendant's vehicle, he could see that defendant's pupils were extremely constricted, his hands were shaking, and he appeared nervous as he produced his driver's license and insurance card. Borrowdale indicated that extremely constricted pupils is an indication of opioid usage, most commonly heroin and fentanyl. Borrowdale explained to defendant what he had observed in the parking lot, and defendant denied ingesting any drugs. Borrowdale asked defendant to exit and step to the rear of his vehicle. Defendant continued to deny ingesting or possessing drugs. Another officer arrived and stood with defendant while Borrowdale spoke with Price. Borrowdale indicated that his conversation with defendant at the rear of the vehicle lasted no longer than three minutes.
¶ 10 On direct examination, defense counsel asked Borrowdale what he did after his conversation with Price. Borrowdale began to answer, stating: "After the front seat passenger admitted to snorting Xanax in the vehicle-." Defense counsel objected. The State objected to defense counsel "asking questions of [its] witness and then objecting to the answers that he does not like." The court overruled the State's objection, stating: "Well, it's hearsay what she said and he said after the conversation and he proceeded to say what the conversation was." The question was asked again, and Borrowdale responded that after his conversation with Price, he searched her, defendant, and the vehicle. On cross-examination, the State attempted to elicit the conversation between Borrowdale and Price. The following exchange occurred.
" [THE STATE]: And what was the nature of that conversation?
[DEFENSE COUNSEL]: Objection. Relevance.
[THE STATE]: Judge, this goes to the officer's probable cause to make his arrest of the defendant and for the stop.
THE COURT: To search the vehicle?
[THE STATE]: Yes, Judge.
THE COURT: And you are going to elicit some statements from the other individual?
[THE STATE]: That's correct, Judge.
THE COURT: Sustained.
[THE STATE]: Thank you. Judge, if I may, hearsay is allowable during a motion to suppress hearing to establish probable cause and that's established through cases such as People versus Beto, *** and People versus Horine, ***.
THE COURT: Did you give any of these cases to [defense counsel]?
[THE STATE]: Well, Judge, I wasn't anticipating an objection based on hearsay during a motion to suppress due to the fact that it is well established that hearsay is allowable during a motion to suppress.
THE COURT: Sustained. Ask another question, Counsel."
¶ 11 Defendant acquiesced to a search of his person. No contraband was discovered during that search. Defendant refused to consent to a search of his vehicle. Borrowdale testified that he did not ask for defendant's consent to search the vehicle, he merely informed defendant that he was going to search it "based on what the front seat passenger told [him], [and his] plain view observations of them in the parking lot." Upon searching the vehicle, Borrowdale located a wallet in the center console. Within the wallet, Borrowdale discovered an identification card belonging to defendant, "one cut pen and one cut red straw with a white powdery residue on it, a green plastic bag containing a white powder which [he] suspected was heroin or fentanyl, a pill with the markings Xanax on it, and then a portion of a pill which [he] could not identify." Defendant was subsequently arrested.
¶ 12 After the court denied the State's motion for directed finding, the State rested. In its ruling, the court found that Borrowdale's observation, through tinted windows, that defendant was not wearing his seat belt was enough to justify the initial traffic stop. The court expressed doubt regarding Borrowdale's characterization of that area being frequently used for drug activity, stating, "I'm very, very familiar with that area. Now he indicates it's a high crime area. I don't know." The court noted that Borrowdale viewed defendant's eyes and nervousness but observed no contraband in plain view. The court explained that Borrowdale searched the vehicle, not only for what might be in plain view but also the console of the vehicle and the wallet, knowing he needed consent to do so. Regarding Borrowdale's conversation with Price, the court stated that "it was implied in so many different ways that the passenger said yes, we snorted something, whatever it might be, it is clear it is not her vehicle. She can't consent."
¶ 13 Ultimately, the court ruled that while the seat belt violation justified the initial stop, there was nothing more that amounted to probable cause to search the vehicle without consent or a search warrant. The court indicated that "[t] hem bending back down and coming back up [was] not enough." Further, it declared that "[i]n the course of [Borrowdale] testifying, I had to wipe my nose with an amount of tissues. So I wiped my nose. Was that enough for him to search my person and my property?" Thus, the court granted defendant's motion to quash and suppress evidence. Thereafter, the State filed a certificate of substantial impairment and appealed the court's decision.
¶ 14 II. Motion Taken with the Case
¶ 15 On appeal, the State filed a motion to strike purported authorities, specifically four nonlegal authorities that defendant cited in his brief: (1) an article from the Journal of Occupational and Environmental Hygiene to demonstrate that an individual "will touch [their] nose, eyes, or mouth 15.7 times per hour"; (2) a chapter from Clinical Methods: The History, Physical, and Laboratory Examination; (3) an article from medicalnewstoday.com to demonstrate nonnarcotic related reasons for pupil constriction; and (4) a section from a book titled Biomedical Interventions to demonstrate that Xanax is a commonly prescribed medication for anxiety. The State argues that none of these four sources constituted secondary sources, were subject to judicial notice, or had been advanced in the circuit court prior to appeal and, therefore, should be stricken.
¶ 16 Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020), which governs the form and content of appellate briefs, "expresses no restriction on the nature or source of material which may be cited in support of an argument. Whether the authority cited may be nonprecedential, irrelevant, or incomplete will be determined by the reviewing court as a proper consideration in assessing the merits of a proponent's argument." In re M.M., 156 Ill.2d 53, 56 (1993). "Further, while an appellant must preserve issues or claims for appeal, there is no requirement that arguments or authorities be limited strictly to those made at trial." People v. Rodriguez-Aranda, 2022 IL App (2d) 200715, ¶ 5. In reaching our decision, we have considered defendant's authorities and the State's arguments regarding those authorities. The motion to strike is denied.
¶ 17 III. ANALYSIS
¶ 18 The State argues the circuit court erred in granting defendant's motion to suppress evidence because the automobile exception to the warrant requirement permits vehicle searches that are supported by probable cause. When reviewing a circuit court's ruling on a motion to suppress, we employ a two-part standard of review. People v. McDonough, 239 Ill.2d 260, 265-66 (2010). We defer to the circuit court's findings of fact unless they are contrary to the manifest weight of the evidence. Id. at 266. Whether the evidence should ultimately be suppressed is reviewed de novo. Id.
¶ 19 "A search conducted without prior approval of a judge or magistrate is per se unreasonable under the fourth amendment, subject only to a few specific and well-defined exceptions." People v. Bridgewater, 235 Ill.2d 85, 93 (2009). One such exception is the automobile exception. People v. McGhee, 2020 IL App (3d) 180349, ¶ 31. "Under the automobile exception, law enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize." People v. James, 163 Ill.2d 302, 312 (1994). "The scope of such a warrantless search extends to every part of the vehicle and its contents that may conceal the object of the search." People v. Parker, 354 Ill.App.3d 40, 45 (2004).
¶ 20 "To establish probable cause, it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that the automobile contains contraband or evidence of criminal activity." People v. Hill, 2020 IL 124595, ¶ 23. "In determining whether probable cause exists, officers may rely on their law-enforcement training and experience to make inferences that might evade an untrained civilian." Id.
¶ 21 At the outset, we address the court's refusal to admit hearsay evidence. Hearsay evidence is admissible during a hearing on a defendant's motion to suppress, even though it would not be admissible at trial. People v. Patterson, 192 Ill.2d 93, 111-12 (2000). The testimony of the officer, even if it includes hearsay, explains what information the officer possessed at the time and what he reasonably believed based on that information which is essential in determining whether the officer had probable cause to search the vehicle. See People v. Horine, 2017 IL App (4th) 170128, ¶ 15. Accordingly, the court erred when it barred the State from eliciting testimony from Borrowdale regarding the information he learned from Price.
¶ 22 Next, we examine whether Borrowdale had probable cause to search defendant's vehicle based on the totality of the circumstances. The evidence showed that Borrowdale possessed a significant amount of experience and training in drug enforcement. He observed defendant sitting in his vehicle with Price, both looking around for several minutes before one after the other, they bent down into their laps and came back up wiping their noses. Based on his training and experience, this behavior indicated to Borrowdale that both occupants of the vehicle had been searching the area for police prior to nasally ingesting drugs. As defendant drove out of the parking lot, Borrowdale observed that he was not wearing his seat belt. He effectuated a traffic stop of the vehicle and observed that defendant was nervous, and his pupils were extremely constricted which Borrowdale knew to be an indicator of opioid usage. Further Price admitted to Borrowdale that she had snorted Xanax in the vehicle.
¶ 23 While people frequently touch their faces and wipe their noses without ingesting drugs, and have their pupils constrict for reasons other than opioid usage, we must view the totality of the evidence when evaluating probable cause. We cannot remove pieces of evidence from their given context. Accordingly, where Borrowdale, an experienced drug enforcement officer, observed the above-mentioned behaviors that indicated drug usage, made physical observations of defendant supporting his suspicions of drug usage, and then Price confirmed that she ingested drugs in the vehicle, probable cause existed for him to believe that evidence of drug possession or usage could be within defendant's vehicle.
¶ 24 Defendant points out that the information we have from the record indicates that Price only admitted to her own drug usage, and she did not inform Borrowdale that defendant had possessed or used any drugs. Unfortunately, we do not know the extent of Price's statements and admissions to Borrowdale based on the improperly excluded testimony. However, we find a reasonably cautious officer could believe that defendant also nasally ingested drugs since both Price and defendant, while in the parking lot, exhibited the same motion of bending down and then wiping their nose. Evidence of defendant's probable drug usage was further corroborated by Borrowdale's observations of pupil constriction.
¶ 25 Defendant further argues that the stop was impermissibly prolonged, where Borrowdale stopped defendant for a seat belt violation, then investigated defendant's potential drug usage and possession. A police officer may temporarily detain a person when the officer's observations create a reasonable, articulable suspicion that the person has committed a crime. People v. Goodum, 356 Ill.App.3d 1081, 1085 (2005). "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'-to address the traffic violation that warranted the stop." Rodriguez v. United States, 575 U.S. 348, 354 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). "Authority for the seizure ends when tasks tied to the traffic infraction are-or reasonably should have been-completed." Id. at 349. Unrelated inquiries impermissibly prolong a stop beyond its mission when those inquiries are not occasioned by a reasonable, articulable suspicion of criminal activity. See People v. Cummings, 2016 IL 115769, ¶ 15; Rodriguez, 575 U.S. at 355. Defendant contends that Borrowdale failed to exercise diligence to accomplish the stop's mission and prolonged the stop past the amount of time needed to complete tasks tied to the seat belt infraction where he merely had a hunch that defendant had ingested or possessed drugs. See People v. Ruffin, 315 Ill.App.3d 744, 748 (2000) (mere hunches are insufficient to prolong a stop with inquiries outside the mission of a traffic stop).
¶ 26 Borrowdale's observations in the parking lot provided him with a reasonable, articulable suspicion that defendant had possessed and ingested drugs enabling him to temporarily detain defendant to conduct a narcotics investigation. Defendant's nervousness, constricted pupils, and admissions made by Price after the stop elevated that reasonable suspicion to probable cause allowing him to extend the stop to include a search of the vehicle under the automobile exception. Accordingly, because we have concluded that Borrowdale had probable cause to search defendant's vehicle, we reverse the circuit court's decision and remand for further proceedings on defendant's unlawful possession of a controlled substance charges.
¶ 27 IV. CONCLUSION
¶ 28 The judgment of the circuit court of Will County is reversed and remanded.
¶ 29 Reversed and remanded.