Despite the apparent latitude the Illinois Supreme Court gave police with their decision in People v. Hackett, DUI defense lawyers can still look to the safeguards provided by the 4th Amendment. While Hackett facially appears to give law enforcement the ability to stop a car for even a momentary lane crossing (albeit when it happens twice), it in no way changed the requirements for prolonging an initial stop. (See previous post for detail analysis of Hackett) Prolonging a traffic stop beyond the time required to perform the initial purpose is still violative of the 4th amendment unless the officer can point to observations warranting the continuation of the stop, like drugs, guns, or obvious and extreme alcohol impairment. In particular, note that a seizure which is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”* Caballes, 543 U.S. at 407, 125 S.Ct. at 837, 160 L.Ed.2d at 846, cited byPeople v. Baldwin, 388 Ill. App. 3d 1028, 1033, 904 N.E.2d 1193, 1198 (3rd Dist. 2009).
Defense lawyers should still be wary of situations in which police attempt to create additional opportunities to observe a driver possibly under the influence without necessarily extending the length of the stop. Now it is well established that an officer can ask a driver out of his vehicle following a lawful traffic stop. Gonzalez, 184 Ill.2d at 413-14, cited by People v. Sorensen 196 Ill. 2d 425, 433 (Ill. S.Ct. 2001). The question then becomes, say in the situation of issuing a warning ticket, what can the officer do after pulling a driver out of the car without unconstitutionally prolonging the stop? Can he take additional steps to try to observe a DUI without extending the length of the seizure?
A traffic stop constitutes a seizure under the 4th amendment and is analyzed by whether the initial stop is prolonged beyond the time reasonably required to effectuate the purpose of the stop. People v. Harris, 228 Ill.2d 222,244, 886 N.E.2d 947, 961 (2008). Focusing here on situations where a traffic stop and warning ticket may turn into a DUI, defense attorneys should be critical of an officer’s actions in determining if they unreasonably and unnecessarily prolonged a traffic stop under the circumstances.
Lets take the example of an officer pulling over a driver for crossing the center line at 11:00pm at night. The officer approaches the vehicle, talks to the driver, and discovers the driver innocently dropped something in his lap, causing him to slightly swerve. The officer decides to issue a warning ticket. Thinking like a police officer, what are the benefits of asking the driver back to your squad car?
It may allow for quicker transfer of the ticket to the driver. More importantly however, it allows for observation of the driver as he steps out of the car. It allows the officer to watch the driver walk for 25-30 feet back to the officer’s cruiser. It brings the suspect’s face closer to the officer, possibly allowing for the officer to discover any scent of alcohol. It gives the officer an opportunity to ask questions of the driver while simultaneously preparing the warning ticket. Presumably the officer has already asked for the driver’s license and registration, giving him all the information he may need to process the ticket. Why is the driver sitting in the patrol car? It seems much more likely the officer’s request to walk back to the squad car is more related to an attempt to observe a driver under the influence as opposed to the limit convenience of handing the driver his warning ticket.
In People v. Ortiz, 317 Ill.App.3d 212 (Ill. App. Ct. 2000) a case with slightly different facts to the above situation, the Court found the officer had unreasonably prolonged the length of the traffic stop in violation of the 4th amendment. In that case, after issuing a warning ticket to Ortiz, the officer asked Ortiz if he would answer some questions. Ortiz agreed, but refused to consent to a search of the vehicle. After refusing, the officer asked Ortiz to sit in his patrol car while another officer did a walk around with a canine unit. The court found the questioning to be consensual, but the extension of the stop by the canine walk around unreasonably extended the length of the stop in violation of the 4th amendment.
Is there truly a difference when an officer attempts to effectuate questioning and of a driver contemporaneously with writing the ticket? The officer may feel that any questioning that occurs while requiring a ticket is consensual, but is that what a reasonable person would believe? Certainly the driver sitting in the rear of a squad car may feel more inclined to answer any questions than if he were in his own vehicle, not sitting in the back of the officer’s vehicle. This case is clearly not identical to the hypothetical situation above, but raises questions about what constitutes reasonable conduct of an officer in warning ticket situations under the criminal law.
Effective Illinois DUI defense lawyers must observe situations in which police attempt to create additional opportunities to observe a driver possibly under the influence by extending the length of the stop beyond what was necessary to effect the initial purpose of the stop; and to challenge alleged observations of the officer which he may think justified the prolonging of the stop.