Opinion
Appeal No. 3-17-0505
02-20-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT A. KRUCKENBERG, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois,
Circuit No. 15-CF-219
Honorable Dana McReynolds and Jeffrey W. O'Connor, Judges, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Presiding Justice Schmidt dissented.
ORDER
¶ 1 Held: The court erred when it denied defendant's motion to suppress evidence.
¶ 2 Defendant, Brett A. Kruckenberg, appeals from his convictions for cannabis trafficking, unlawful possession with intent to deliver cannabis, and unlawful possession of cannabis. Defendant raises three issues on appeal: (1) the court erred in denying his motion to suppress evidence, (2) the State did not prove his guilt beyond a reasonable doubt, and (3) the court
erroneously imposed a street value fine where the State failed to prove the street value of the cannabis. We vacate defendant's convictions and remand for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 The State charged defendant by information with cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)). Defendant retained private counsel, and counsel filed a motion to suppress evidence. The motion argued Illinois state trooper Sean Veryzer lacked probable cause to stop defendant's vehicle and Veryzer unduly prolonged the traffic stop.
¶ 5 At the hearing, Veryzer testified that he stopped defendant on August 3, 2015, at 4:20 p.m. At the time, defendant was driving eastbound on Interstate 80 in a white Chevrolet pickup truck with Nevada license plates. Veryzer stopped defendant for driving 73 miles per hour in a 70 miles per hour zone. Veryzer approached defendant's truck and informed defendant of the speed limit violation. For the next few minutes, defendant adamantly denied speeding and explained to Veryzer that he had his cruise control set at 70 miles per hour. Defendant told Veryzer that he was driving from Reno, Nevada, to Harvard, Illinois, to see family. Defendant also intended to stop in Oak Lawn, Illinois, to visit a friend. Veryzer told defendant that he was going to issue a written warning for the speed limit violation and asked for defendant's driver's license, vehicle registration, and proof of insurance. After defendant provided the documentation, Veryzer directed defendant to exit the truck and sit with him in his patrol vehicle while he prepared the written warning. Veryzer explained that he asks the drivers that he stops to exit their vehicle and sit in his patrol vehicle because it prevents them from falling asleep, and permits him to evaluate the driver for drug or alcohol impairment. Defendant exhibited no signs of drug or alcohol consumption.
¶ 6 Before Veryzer and defendant entered Veryzer's patrol vehicle, Veryzer radioed for "routine assistance" from a second trooper. During his radio call, Veryzer mentioned that he might conduct a free-air sniff. Illinois state trooper Ryan Shannahan responded that he was en route and was approximately six miles from Veryzer's location.
¶ 7 Once in Veryzer's patrol vehicle, Veryzer and defendant conversed about the location of defendant's home, defendant's destination and lodging arrangements. Veryzer explained that this conversation was not intended to be a drug interdiction tool but encouraged a positive police interaction and alleviated the prevailing negative view of law enforcement. However, Veryzer later acknowledged that having an individual speak with him in his patrol vehicle "can always have something to do with other things," and in this case, some of Veryzer's questions were related to "criminal interdiction." Veryzer acknowledged that his questions were not specifically related to the underlying speeding offense, but he spoke with defendant about the impact that the written warning could have on defendant's commercial driver's license.
¶ 8 While sitting with defendant in the patrol vehicle, Veryzer radioed the dispatcher for a driver's license check. The dispatcher responded, almost immediately, that defendant's driver's license was valid. After Veryzer received the response, he began preparing the written warning. Veryzer completed the top portion of the warning while he conversed with defendant. This portion included the date, location, and traffic infraction. Veryzer said it took him slightly less than one minute to fill in this information. After completing the top half of the warning, Shannahan arrived. Veryzer asked Shannahan to finish the bottom portion of the warning. This included filling in the time of the offense, vehicle make, license plate, driver's license number, and defendant's address. Veryzer said the process for writing the entire warning takes approximately five minutes. While Shannahan completed the warning, Veryzer conducted a free
air sniff of defendant's truck. During the sniff, Veryzer's canine alerted to the presence of narcotics.
¶ 9 On cross-examination, Veryzer said he radioed for assistance from a second officer because he potentially wanted to conduct a free-air sniff. At the time of his radio transmission, Veryzer had made several observations about the truck that caused him to suspect the truck was carrying contraband. Specifically, the truck had two auxiliary fuel tanks in the bed. One of the fuel tanks was covered in a gritty bed-liner material and was mounted on a metal plate instead of the truck bed. Veryzer said he had not previously seen auxiliary fuel tanks covered in bed liner material. Veryzer noted that, at the time, these were items of interest and nothing more. Veryzer also observed that defendant had minimal clothing or luggage in his truck given the length of his trip. Veryzer said drug-traffickers usually possessed minimal luggage because they do not stay long at their destination. Veryzer found defendant's comment about stopping in Oak Lawn while on a trip to Harvard to be unusual because the two cities were separated by many miles. Veryzer found defendant's use of a heavy-duty truck to travel cross-country to be illogical as there were more economical ways to travel. Veryzer noted that defendant's home in Reno, Nevada, was near the area where a large amount of cannabis seized on Interstate 80 originates. Given these circumstances, Veryzer suspected that something was concealed inside one of the auxiliary fuel tank.
¶ 10 On redirect examination, Veryzer said that he stopped defendant purely for the speed limit violation. Veryzer asked Shannahan to finish writing the warning because it avoided any undue delay in completing the stop. Veryzer also believed that he had reasonable suspicion to conduct the free-air sniff, but Shannahan's arrival before the issuance of the warning rendered this independent reasonable suspicion unnecessary.
¶ 11 During Veryzer's testimony, defense counsel introduced into evidence the video recording from Veryzer's dash camera. The first minute of the recording shows Veryzer's patrol vehicle driving alongside defendant's truck. Near the one minute mark, Veryzer pulls defendant over and approaches the passenger-side window of defendant's truck. At 1 minute and 45 seconds, Veryzer asks to see defendant's driver's license and notifies defendant of the reason for the traffic stop. Shortly thereafter, Veryzer instructs defendant that he is going to issue a written warning to defendant. Starting around 2 minutes and 20 seconds, the following exchange between Veryzer and defendant occurs.
"VERYZER: Where are you headed?
DEFENDANT: Home to visit family.
VERYZER: Where at?
DEFENDANT: Illinois.
VERYZER: Oh, you're from Illinois?
[Inaudible]
VERYZER: What is it?
DEFENDANT: Harvard
VERYZER: I don't even know where that's at.
DEFENDANT: Up north.
VERYZER: Okay.
DEFENDANT: I think I am going to go visit a buddy in Oak Lawn, but I didn't realize I was speeding."
After this exchange, Veryzer asks defendant how long he has lived in Nevada. Defendant replies one to two years. Veryzer then asks for defendant's proof of insurance and vehicle registration.
While waiting for defendant to produce the documents, Veryzer asks defendant how long he has owned the truck. Defendant replies that he bought the truck in Illinois before he moved to Nevada. Veryzer then tells defendant "Okay. So I'm just going to write a warning. I am going have you come out, stretch your legs. Come back sit in my squad and we will get you going." Before defendant exits the truck, Veryzer radios for assistance from a second officer. At 4 minutes and 27 seconds, another trooper responds to Veryzer's radio call and reports that he is near Geneseo. Veryzer responds "10-4, I just need you to write my warning."
¶ 12 At 4 minutes and 33 seconds, defendant exits his truck, and Veryzer comments "[c]ool, two tanks, huh?" Defendant explains that he powers his truck with vegetable oil and the tanks contain the oil. At 4 minutes and 47 seconds, Veryzer directs defendant to sit in the front seat of his patrol vehicle. Defendant asks if he can sit in his truck, but Veryzer says he does not want defendant to stand in the roadway and risk getting hurt. Veryzer also tells defendant that he "always asks everybody" to sit in his patrol vehicle. At five minutes, Veryzer and defendant get into Veryzer's patrol vehicle and Veryzer says "I'll tell you a little bit about—tell you a little bit about here." Inside the patrol vehicle, Veryzer's canine begins to bark and defendant asks if he may pet the canine. Veryzer tells defendant not to touch the canine and explains that the canine is only friendly with him, his family, and other officers. While sitting in Veryzer's patrol vehicle, defendant bemoans the fact that he was less than 200 miles from his destination. Veryzer then inquires about the length of defendant's trip and how long defendant intends to stay in Harvard. Defendant responds that he left on Thursday night (Veryzer stopped defendant on a Monday) and he intends to stay for approximately 10 days. During this conversation, the audio records the sounds of Veryzer entering defendant's information into his computer.
¶ 13 Approximately 6 minutes and 45 seconds into the recording, Veryzer radios defendant's information to the dispatcher. The dispatcher responds, almost immediately, that defendant's driver's license is valid. After the dispatch, Veryzer asks defendant where Harvard is located. From 7 minutes and 18 seconds to 11 minutes, Veryzer and defendant converse about defendant's destination, Illinois road construction on Interstates 80 and 88, defendant's work in Nevada as a truck driver, and the reason why defendant moved from Illinois. As defendant begins to wonder aloud if the size of the tires on his truck impacted the accuracy of his speedometer, Veryzer ends their conversation and announces that he is going to walk his canine around defendant's truck. Around 11 minutes and 49 seconds, the canine alerts near the bed of the truck. Veryzer then returns the canine to his patrol vehicle and conducts a visual inspection of the bed of the truck and the auxiliary fuel tanks. At 13 minutes and 45 seconds, Veryzer tells defendant that the canine alerted in the area of the auxiliary fuel tanks. Veryzer asks if defendant has any narcotics in the fuel tanks. Defendant responds that there is only vegetable oil in the fuel tanks. At 14 minutes and 27 seconds, Veryzer instructs defendant that he is being detained and reads him the Miranda warning. Thereafter, Veryzer and two additional troopers search defendant's truck. Around the 58 minute mark, the roadside search ends and the troopers move defendant and the truck to an off-highway location. The video concludes after 1 hour and 9 minutes elapsed. At that time, Veryzer pulls into a parking lot behind defendant's truck.
¶ 14 Shannahan testified that he responded to Veryzer's call for assistance around 4:20 p.m. Shannahan reached Veryzer's location four to five minutes after the call. Veryzer asked Shannahan to finish writing the warning. Shannahan worked on the bottom portion of the warning while Veryzer conducted a free-air sniff. Veryzer's canine alerted before Shannahan
finished writing the warning. Shannahan said it usually took him five minutes to fill out a warning ticket.
¶ 15 Defendant testified that he lived in Reno, Nevada. On August 3, 2015, at 4:20 p.m., he was traveling east on Interstate 80. At the time, he had his cruise control set at 70 miles per hour. Nevertheless, Veryzer initiated a traffic stop and informed defendant that he had exceeded the 70 miles per hour speed limit. Defendant denied exceeding the speed limit.
¶ 16 The circuit court found that Veryzer had stopped defendant for driving 73 miles per hour in a 70 miles per hour zone. Veryzer told defendant that he intended to issue a written warning. Based on Veryzer's observations about the truck and defendant's stated belief that he was not speeding, Veryzer radioed for assistance from a second officer. Veryzer then directed defendant to accompany him to his patrol vehicle. Veryzer began writing the warning while sitting with defendant. When Shannahan arrived, Veryzer handed over the warning writing duties to Shannahan and conducted a free-air sniff. The court concluded that the video recording of the stop clearly indicated that the stop did not take longer than was normally required to issue a warning for a speed limit violation and denied defendant's motion to suppress evidence.
¶ 17 The case proceeded to a bench trial. The evidence at trial established that Trooper Veryzer stopped defendant for exceeding the 70 miles per hour speed limit on Interstate 80. At the time, defendant was traveling eastbound. Defendant's driver's license indicated that he resided in Reno, Nevada. Veryzer identified Nevada as a "source state" for cannabis. During the stop, Veryzer conducted a free-air sniff with his canine. The canine alerted to the presence of narcotics in the area of an auxiliary fuel tank in the bed of defendant's truck. A subsequent search of the truck revealed contraband in a hidden compartment in the fuel tank. The contraband was packaged in 73 one-pound vacuum-sealed bags. A field test identified the substance as
cannabis. Veryzer said the hidden location, packaging, and amount of cannabis indicated intent to distribute the narcotics. According to Veryzer, the cannabis had a street value of approximately $4000 per pound and a total value of $292,000. Veryzer opined that in 2015, cannabis typically traveled from the western states to the east and the cash proceeds traveled from the eastern states to the west. Based on this evidence, the circuit court found defendant guilty of each of the three charged offenses. The court sentenced defendant to 12 years' imprisonment and ordered defendant to pay a street value fine of $292,000. Defendant appeals.
¶ 18 II. ANALYSIS
¶ 19 Defendant argues the circuit court erred when it denied his motion to suppress evidence because Veryzer impermissibly prolonged the duration of the traffic stop when he asked defendant to sit in his patrol vehicle, engaged in conversation, and generally procrastinated while preparing the written warning. Defendant further contends that Veryzer did not have independent reasonable suspicion of criminal activity to justify prolonging the traffic stop to conduct a free-air sniff. We find that the record establishes that Veryzer unlawfully prolonged the traffic stop when he delayed the completion of the warning until Shannahan arrived so that he could conduct a free-air sniff. Further, Veryzer did not have reasonable suspicion to independently justify the free-air sniff.
¶ 20 On review, we afford the circuit court's findings of fact great deference. People v. Cregan, 2014 IL 113600, ¶ 22. We will only reverse those findings if they are against the manifest weight of the evidence. Id. The court's legal ruling on whether the evidence should be suppressed is subject to de novo review. Id.
¶ 21 A. Length of the Stop
¶ 22 Defendant first argues that Veryzer impermissibly prolonged the stop by delaying the completion of the written warning until Shannahan arrived so that he could conduct a free-air-sniff.
¶ 23 A police officer may stop and briefly detain a motorist when the officer observes the motorist commit a traffic violation. People v. Reedy, 2015 IL App (3d) 130955, ¶ 20. An otherwise permissible traffic stop becomes unlawful where the stop is "prolonged beyond the time reasonably required to satisfy its initial purpose." Id. ¶ 25. In Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015), the Supreme Court said "the 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 [citation] and attend to related safety concerns." Id. (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). "Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed." Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. In a routine traffic stop, the officer's mission includes deciding whether to issue a ticket, "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. at ___, 135 S. Ct. at 1615. The officer may not conduct unrelated checks "in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id.
¶ 24 A free-air sniff does not inherently violate the fourth amendment. Id. at ___, 135 S. Ct. at 1612 (citing Caballes, 543 U.S. 405). However, a free-air sniff is not an ordinary incident of a traffic stop, and therefore, it must be conducted in a manner that does not prolong the stop. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1615. Thus, "[t]he critical question*** is not whether the dog sniff occurs before or after the officer issues a ticket, *** but whether conducting the
sniff 'prolongs'—i.e., adds time to—'the stop,' [citation]." Id. at ___, 135 S. Ct. at 1616. Invariably, a free-air sniff will add additional time to a traffic stop. As a result, we have recognized that there is no "bright-line rule to indicate a fixed point at which investigative detentions become unreasonable." People v. Baldwin, 388 Ill. App. 3d 1028, 1034 (2009). Rather, we analyze the duration of the stop under the "totality of the circumstances" approach and consider the brevity of the stop and the diligence of the police officer during the stop. People v. Pulido, 2017 IL App (3d) 150215, ¶ 39.
¶ 25 The video recording of the stop at issue indicates that from Veryzer's initial approach to Veryzer's notification to defendant that the canine had alerted, the stop lasted approximately 13 minutes. Viewed in isolation, 13 minutes does not represent an inordinate amount of time to complete a traffic stop. See e.g., People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 18 (stop of 10 to 12 minutes to issue a warning ticket was reasonable); People v. Staley, 334 Ill. App. 3d 358, 367 (2002) (18-minute traffic stop that included the issuance of two traffic citations was not unduly prolonged). However, the total length of the traffic stop is not by itself dispositive of the stop prolongation analysis. See Pulido, 2017 IL App (3d) 150215, ¶ 39. We must further examine Veryzer's diligence in completing the stop. Id.
¶ 26 At the beginning of the stop, Veryzer asked to see defendant's driver's license and notified defendant of the observed traffic violation. These actions were consistent with the underlying purpose for the stop. However, shortly after these comments, Veryzer deviated from the traffic stop investigation and asked defendant several questions about his destination, and the length of time that defendant has lived in Nevada and owned the truck. Following these questions, Veryzer radioed for assistance from a second trooper. At that time, Veryzer learned that Shannahan was six miles from his location. Veryzer's response, "10-4, I just need you to
write my warning," indicated for the first time that Veryzer did not intend to complete the written warning himself. By itself, this statement only slightly prolonged the stop, but it gives context to the six minutes of interaction between Veryzer and defendant that follows.
¶ 27 After receiving the radio transmission about Shannahan's location, Veryzer directed defendant to exit the truck. Near the back of the truck, Veryzer engaged defendant in seemingly innocuous conversation about defendant's auxiliary fuel tanks. Inside of Veryzer's patrol vehicle, Veryzer continued to converse with defendant while he processed defendant's information and started writing the warning. During this five minute period, Veryzer asked defendant about the length of defendant's intended stay in Harvard, defendant's work in Nevada, defendant's reason for moving to Nevada, and the road construction on Interstates 80 and 88. While this conversation created a cordial police-suspect interaction, it was unrelated to the purpose of the stop and occasioned multiple delays in the warning writing process. The combination of Veryzer's in-vehicle conversation, protracted warning writing process, knowledge of Shannahan's location, and abrupt termination of his conversation with defendant when Shannahan arrived established a lack of diligence in completing the stop. While Veryzer's testimony indicated that he was trying to avoid prolonging the stop by radioing for a second officer, he fell victim to his own concern by making several deviations from the traffic violation investigation and warning writing process until Shannahan arrived. Therefore, we find that Veryzer impermissibly prolonged the stop, and the circuit court erred in denying defendant's motion to suppress evidence.
¶ 28 B. Reasonable Suspicion
¶ 29 In the alternative, defendant argues that Veryzer's free-air sniff was unsupported by independent reasonable suspicion of criminal activity.
¶ 30 The seizure that is attendant to a traffic stop permits a limited police investigation of the particular traffic violation. Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. A traffic stop may broaden into an investigatory detention if the stopping officer "discovers specific, articulable facts which give rise to a reasonable suspicion that the defendant has committed, or is about to commit, a crime." People v. Ruffin, 315 Ill. App. 3d 744, 748 (2000). However, mere hunches and unparticularized suspicions do not rise to the level of reasonable suspicion. Id.
¶ 31 To determine if an officer had reasonable suspicion to expand a traffic stop, we look to the " 'totality of the circumstances' " to determine if the officer had a " 'particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United Sates v. Cortez, 449 U.S. 411, 417 (1981)). An officer may draw from his own experience and training to make inferences from and deductions about the available information that might elude an untrained person. Ornelas v. United States, 517 U.S. 690, 699 (1996). While reasonable suspicion must derive from more than an officer's hunch that criminal activity is "afoot," it need not rise to the level required for probable cause. Arvizu, 534 U.S. at 274.
¶ 32 Veryzer cited the following factors as providing reasonable suspicion to believe that defendant was engaged in narcotics trafficking: (1) defendant's truck had two auxiliary fuel tanks in the bed, (2) one of the auxiliary fuel tanks was covered in a gritty bed-liner material and was mounted to a metal plate instead of the bed of the truck, (3) defendant had minimal luggage in relation to the length of his trip, (4) defendant's Illinois destinations, Harvard and Oak Lawn, were separated by many miles, (5) defendant's use of a heavy duty truck to drive across the country was one of the least economical ways to travel, and (6) defendant's home in Reno,
Nevada, was located in an area where the majority of the cannabis seized on Interstate 80 originated.
¶ 33 We find the evidence cited by Veryzer lacks the "particularized and objective basis" necessary to suspect legal wrong doing, and therefore, did not amount to reasonable suspicion to justify the free-air sniff. Cortez, 449 U.S. at 417. Specifically, Veryzer's observations about the amount of luggage and use of a pickup truck to travel across the country were derived almost entirely from Veryzer's subjective belief of what was reasonable under the circumstances. The distance between defendant's two Illinois destinations—Harvard and Oak Lawn—yielded no suspicion of criminal activity because an individual traveling thousands of miles through several states could reasonably be expected to visit multiple cities within their destination state, even if those cities were located many miles apart. Stated another way, defendant's Illinois destinations were relatively close to each other as compared to the distance between defendant's home in Reno and either Harvard or Oak Lawn. We further find that defendant's residence in Reno yielded, at best, a very general and unparticularized suspicion of criminal activity. Ultimately, however, this suspicion was too general to justify a free-air sniff. The auxiliary fuel tanks were the most suspicious aspect of defendant's vehicle. However, the fuel tanks did not give rise to particularized suspicion that defendant was engaged in criminal activity as defendant's innocent explanation provided a reasonable basis for the use of the tanks. Therefore, we find that the totality of the circumstances does not give rise to a "particularized and objective basis" to suspect legal wrong doing and independently justify the free-air sniff. Arvizu, 534 U.S. at 273.
¶ 34 Our resolution of the motion to suppress evidence issue requires that we vacate defendant's convictions and remand the cause for further proceedings. This resolution has rendered analysis of defendant's remaining two issues unnecessary.
¶ 35 III. CONCLUSION
¶ 36 The judgment of the circuit court of Henry County is vacated and remanded.
¶ 37 Vacated and remanded.
¶ 38 PRESIDING JUSTICE SCHMIDT, dissenting:
¶ 39 I respectfully dissent from the majority's conclusions that Trooper Veryzer unlawfully prolonged the traffic stop and conducted a free-air sniff without independent reasonable suspicion.
¶ 40 The traffic stop lasted for roughly 13 minutes, an amount of time that even the majority acknowledges is not "inordinate." Infra ¶ 25. Thirteen minutes is, after all, a reasonable amount of time for an officer to address the speeding violation that warranted the stop and attend to the related safety concerns. Caballes, 543 U.S. at 407. Additionally, Veryzer's completion of the free-air sniff before Shannahan issued the warning citation confirms that Veryzer did not prolong the stop to conduct the sniff. Ergo, Veryzer did not need independent reasonable suspicion to justify the free-air sniff, which is not a search. Id. at 409.
¶ 41 Assuming for the sake of argument that Veryzer prolonged the stop, the same was justified by Veryzer's reasonable suspicion that defendant was engaged in criminal activity. During the stop, Veryzer suspected that defendant was engaged in narcotics trafficking because defendant's truck contained two auxiliary fuel tanks, one of the fuel tanks was covered by a bed-liner material and mounted to a metal plate, defendant possessed minimal luggage although he was on a lengthy trip, defendant's destinations were not close together, defendant drove across the country by himself in a heavy duty truck with no obvious large cargo, and defendant was from an area where a large amount of cannabis originated. Independently, any one of these factors does not provide reasonable suspicion of narcotics trafficking, but, together, they paint a
clear picture of an individual who was likely engaged in criminal activity. Enough to establish a reasonable, articulable suspicion to support the very brief time of which the majority complains. This stop was not unlawfully prolonged.
¶ 42 I would affirm.