Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. 

Garrity v. New Jersey Establishes Special Rules When An Officer Becomes The Target Of An Investigation

In This Episode…

We discuss the following case:

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).

Gist of the Case

The Supreme Court of New Jersey caught wind of some ticket fixing going in their court system.

They formed an investigation with the Attorney General.  This investigation interrogated other officers.

Coerced Officers

The officers under investigation were warned by the Attorney General

(1) that anything he said might be used against him in any state criminal proceeding;(2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but(3) that if he refused to answer he would be subject to removal from office. Appellants answered the questions.

No immunity was granted.

When the officer’s statements were used against them in the subsequent prosecution they claimed the statements were coerced out of them. Their statements were coerced by reason of the fact that, if they refused to answer, they could lose their positions with the police department.   

SCOTUS Said

The Supreme Court of the United States said that the officers were not really given a choice to talk to investigators.

The fear of being discharged under for refusal to answer on the one hand and the fear of self-incrimination on the other was “a choice between the rock and the whirlpool” which made the statements products of coercion in violation of the Fourteenth Amendment.

The choice between self-incrimination or job forfeiture is no choice at all.

The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice is likely to exert such pressure upon an individual as to disable him from making a free and rational choice.

Ain’t Police Work Just Like Any Other Job?

The court noted that ordinary citizens don’t have constitution rights to their jobs.

To a certain degree everyone accepts employment with restrictions. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract.

The servant cannot complain, as he takes the employment on the terms which are offered him. Similarly, police officers don’t have a constitutional right to be police officers.

This may be true, but…

The Issue Here

The issue here is whether the State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

What’s different here is that the employer is the police department.

The police can’t force an incriminating statement from a fellow officer no more than they can coerce...

People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08)

Sloppy drafting of a warrant means all the murder evidence is out.

Gist

The victim was beat with a broom and died in the hospital. Defendant was her husband and their 7 year old granddaughter was living with them and she saw the beating and told police.

Problem With The Warrant

For some reason police used a drug warrant to get into the house and take evidence of the murder. This created all kinds of search and seizure problems for the police.

The complaint was mainly a drug complaint but did include some items germaine to the murder. The warrant’s description of the items to be seized was identical to the complaint’s description of items that would be relevant to the investigation of a drug offense. However, the warrant did not include the following items listed in the complaint that were germane to the investigation of the victim’s death:

“broom handles, bludgeons, wooden handles, extension cords, ropes, belts, [and] any binding agents.”

The Warrant Application

The entire search-warrant paperwork consisted of five pages: a one-page complaint for a search warrant, a three-page affidavit accompanying the complaint, and a one-page search warrant. The affidavit had the 7 year old’s story, but the warrant was asking to confiscate drug paraphernalia.

The Complaint

The one-page complaint for a search warrant began by listing certain items to be seized that would be pertinent to a narcotics investigation but not relevant to the murder investigation that Detective Schroder was conducting.

In the middle of this list of narcotics evidence were the items that pertained to the murder investigation:

“broom handles, bludgeons, wooden handles, extension cords, ropes, [and] belts.”

After listing those six items, the list of items common to drug dealing resumed, and the complaint then referred to “the premises located at 2204 Van Wie Avenue, Rockford, Illinois.” (Emphasis in original.)

The complaint concluded with the language:

“That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein.”

The Search Warrant

The one-page search warrant provided the correct address. The list of items to be seized was identical to the list on the complaint for a search warrant, except that it did not contain the six items related to the murder investigation. The search warrant also contained language incorporating the complaint for a search warrant:

“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place.”

The Affidavit

The three-page affidavit accompanying the complaint and the search warrant clearly set forth the details that supported probable cause to search the premises, including the following:

…that police were called to Rockford Memorial Hospital regarding a deceased woman whom the fire department transported from her residence (2204 Van Wie Avenue, Rockford) to the hospital, that the seven-year-old granddaughter of the victim and defendant had witnessed defendant beating the victim with a broomstick and throwing her into the walls, that the victim had multiple abrasions and bruises about her body, that family members said that there had been “a lot of domestic violence” between the defendant and the victim, that the victim had been deceased for about eight hours, and that the coroner’s office had conducted an autopsy of the victim and had “declared this incident a Murder.

People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)

In this Illinois DUI prosecution, Defendant loses his SSS hearing because he didn’t establish the Walgreen’s parking lot was privately maintained.

Gist

Defendant lost his motion to rescind statutory summary suspension.

Facts

Defendant was asleep in the driver’s seat of his vehicle in the parking lot of a Walgreens drug store in Joliet, Will County, Illinois. Defendant was the only person in the vehicle at the time. The keys to the vehicle were in the ignition, and the engine was running.

Police officers approached the vehicle, woke defendant, and subsequently arrested defendant for DUI.

No Fields

After defendant was arrested, he was taken to the police station, where he allegedly refused to submit to some form of chemical testing. Defendant’s driver’s license was later summarily suspended by the Secretary of State.

The Private Parking Lot Rule

Defendant contends further that the State did not present any evidence in this case to show that defendant was observed driving on a public street or that the parking lot in question was publicly owned or was maintained by a government entity as was necessary to establish that the parking lot was a public highway.

Defendant contends that there is a long line of cases, which unequivocally held that the summary suspension statute (also known as the implied consent statute) cannot be applied to an individual who was driving or in actual physical control of a motor vehicle in a private parking lot, rather than on a public highway (referred to hereinafter as the private parking lot rule).

State Says

The State asserts that under the established law, a parking lot on privately owned property may constitute a public highway for purposes of the summary suspension statute and that it was defendant’s burden, therefore, to present evidence to establish that the parking lot in this case was not a public highway, which defendant failed to do.

Specifically, according to the State, defendant failed to present any evidence to show that the parking lot was privately owned and privately maintained, and the mere fact that the parking lot was a Walgreens parking lot, in and of itself, was insufficient to establish that the parking lot was not a public highway.

How’d He Get There?

In addition, the State maintains, the fact that the vehicle was in the Walgreens parking lot and that defendant was the only person in the vehicle gave rise to an inference that defendant had driven the vehicle to that location on the public streets, as did defendant’s statement to the police that he had come back to Joliet in the vehicle from a restaurant in Chicago.

Defendant’s Prima Facie Case

The defendant bears the burden of proof at the hearing to establish a prima facie case for rescission and must present some evidence on every necessary element of the ground asserted.

If the defendant does so, the burden shifts to the State to come forward with evidence to justify the summary suspension.

However, if the defendant fails to establish a prima facie case, a directed finding should be granted for the State on the petition to rescind.

Implied Consent Statute

Under the summary suspension statute (also known as the implied consent statute), any person who drives or is in actual physical control of a motor vehicle on a public highway is deemed to have given his or her consent to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, drugs, intoxicating compounds,

People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10)

Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.

Traffic Stop

Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway.

DUI Investigation

She walked behind a house and came back out. At that moment, defendant reappeared and informed Bond that she pulled into the driveway because her license was suspended and she did not want to be arrested. 

Bond smelled a moderate odor of alcohol on defendant’s breath, and he noticed that her eyes were bloodshot and “droopy.” Defendant displayed no other signs of intoxication.

Defendant told Bond that she had drunk “a couple” of Mike’s Hard Lemonades and a “swig” of Corona.

Borderline

Bond arrested defendant for driving with a suspended license, and she agreed to perform field sobriety tests at the police station. Following defendant’s performance of the field sobriety tests, Bond informed defendant that she was “borderline.”

Breadth Test

Defendant agreed to take a breath test.

Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082.

Machine Calibration

Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079.

According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079.

Bond testified that the machine has a margin of error of plus or minus 0.005.

Issue

Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine’s margin of error.

The Code

Section 11-501.2(a) of the Code provides in relevant part that evidence of the concentration of alcohol in a person’s breath is admissible in a criminal prosecution under section 11-501. 625 ILCS 5/11-501.2(a).

This is a DUI charge.

Section 11-501.2(a) further states that a chemical analysis of a person’s breath is considered valid if it was performed according to standards promulgated by the Department of State Police (Department). 625 ILCS 5/11-501.2(a). To lay a proper foundation for the admission of the result of a breath test, the prosecution must establish that the breath test was performed in accordance with those standards. People v. Olson, 2013 IL App (2d) 121308, ¶ 9.

The Standards 

We, therefore, look to the Department’s standards, as set forth in administrative regulations.

Administrative regulations have the force and effect of law. People v. Clairmont, 2011 IL App (2d) 100924, ¶ 17. Section 1286.200 of Title 20 of the Illinois Administrative Code provides that the following procedures establish the accuracy of breath-testing instruments:

(1) The instrument was approved at the time of the subject test,

(2) The performance of the instrument was within the accuracy tolerance according to the last accuracy check prior to the subject test,

(3) No accuracy check has been performed since the subject test,

Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.

In This Episode…

We discuss the following cases:

* Birchfield v. North Dakota, 136 S. Ct. 1260 (2016)* Missouri v. McNeely v. 569 U.S. 141 (2013)* People v. Rennie, 2014 IL App (3d) 130014 (May)* People v. Brooks, 2017 IL 121413 (November)* People v. Sykes, 2017 IL App (1st) 150023 (December)* People v. Eubanks, 2017 IL App (1st) 142837 (December)* People v. Turner, 2018 IL App (1st) 170204 (February)* People v. Hayes, 2018 IL App (5th) 140223 (February)

Birchfield v. North Dakota, 136 S. Ct. 1260 (2016)

May the State criminalize the failure to comply with implied consent laws? Birchfield v. North Dakota

Gist

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws. Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Warrantless Blood Draw

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

Issue

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

Analysis

The court applied the search incident to arrest doctrine and noted it is a categorical rule.

Since breath tests do not “implicate significant privacy concerns”,

People v. Meo, 2018 IL App (2d) 170135 (March). Episode 468 (Duration 14:08)

Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.

Gas Attendant Calls It In

At about 8:30 p.m., Scott was dispatched to Casey’s General Store (Casey’s), located at the intersection of Plank Road and Main Street, to investigate a report of a possible drunk driver. It was snowing heavily at the time.

According to Scott, a clerk at Casey’s called dispatch to report a possible drunk driver in the building.

Based on the clerk’s report, dispatch then advised Scott that “the male driver was driving a white Scion. He had driven up to the front of the building, hitting the curb, going over the curb, and the store clerk described it as almost going into the building.”

Officer Arrives

After receiving the call from dispatch, Scott drove to Casey’s, and parked his squad car in a parking lot east of Casey’s so that he would have a better view of the vehicles parked in the Casey’s parking lot.

He saw a white Scion parked in the Casey’s parking lot, and “fairly soon” thereafter he saw a white male, later identified as defendant, enter the vehicle. After following defendant for about 30 seconds and observing defendant commit no traffic violations, Scott activated the lights on his squad car, and defendant stopped his vehicle.

The Traffic Stop

Scott stopped defendant’s vehicle based on the blinking headlights and the original call.

A video recording was made from Scott’s squad car camera from just before the time that defendant’s vehicle passed in front of Scott at Casey’s until the time that Scott arrested defendant for DUI. The video was played for the court and entered into evidence.

Spoke To Driver

Scott testified that, after pulling over defendant’s vehicle, he approached the vehicle and spoke with defendant through the open driver’s-side window. While speaking to defendant, Scott smelled alcohol on defendant’s breath and noted that defendant’s “eyes were glassy and bloodshot, his speech was thick-tongued and slurred.”

Defendant told Scott that he drank three beers about six or seven hours earlier.

Scott asked defendant for his driver’s license and proof of insurance. According to Scott, defendant had a hard time getting his driver’s license out of his wallet and “fumbled his wallet a few times.” Scott testified: “He literally had it in his hands and he dropped it out onto his lap and picked it back up and was kind of using multiple fingers to kind of manipulate the wallet in order to open it correctly.”

Scott testified that the driver’s license was located behind a plastic flap and that it took defendant a few tries to pull the license out of the wallet. Scott stated that defendant also pulled a credit card out of the wallet and handed him the credit card instead of his insurance card.

Field Sobriety Tests

Scott testified that he decided to perform field sobriety tests on defendant and asked him to step out of his vehicle. Because of the heavy snowfall and wind, Scott asked defendant to accompany him to a nearby Jewel pharmacy drive-through pickup area, with an overhang, so that they could be protected from the snow.

Scott testified that, when he asked defendant to exit and lock his vehicle, defendant did so. Scott agreed that he wrote in his police report that defendant swayed and seemed unbalanced as he walked. Scott also agreed, however, that the video showed that defendant had no difficulty walking toward the police car in the deep snow.

The video also showed that defendant, while walking toward the police vehicle, dropped his keys and was able to pick them up without difficulty. Scott transported defendant to Jewel to perform t...

Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses

have more constitutional protection than apartments.

In This Episode…

We discuss the following cases:

* Florida v. Jardines, 133 S. Ct. at 1409 (2013)* People v. Burns, 2016 IL 118973 (March)* People v. Bonilla, 2017 IL App (3d) 160457 (June)* People v. Martin, 2017 IL App (1st) 143255 (June) 

Florida v. Jardines

Florida v. Jardines, 133 S. Ct. at 1409 (2013).

“Property based approach” holds that dog brought to the front step of a single family home constitutes a search. 

Gist

The Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.

Facts

Jardines was growing the marijuana in his home.

This case began when police are told he had a growing operation in his home. DEA agent with a sniff dog knock on front door, the dog alerts to presence of drugs, police leave, and comeback with a warrant.

To be clear, the police did not go into the home with the police dog. Before getting the warrant, the officers and the dog remained on the front stoop and only walked on the walkway of the stoop.

Property Rights

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.”

The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.” The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”

Holding

Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment.

The Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that: The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)

Defendant runs over and kills a 7 year old boy, however, the resulting DUI blood draw is out because defendant was never under arrest.

Hits & Kills A Little Boy

Defendant was driving home from the store with two of his children.

One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.

According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.

The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.

No Signs of Intoxication

No Tickets Issued

Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.

Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,

“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”

Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,

“There was no violation, as far as Mr. Hayes.”

To The Hospital

Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.

Chief Murray did so.

He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.

Eventually Charged

Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.

He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).

Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.

Implied Consent

Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever y...

Episode 459 (Duration 54:23) What do police think about the case law? Do they think about the case law?

Matthew Taylor provides some insight.

In This Episode…

“I think that they got it right. It shows that the courts are taking an understanding of what an officer has to do on a daily basis and they are deferring more to the officer’s inherent and unique skill set…” — Matthew Taylor

Retired officer, teacher, lawyer and mentor Matthew Taylor provides unique perspective on the criminal law.

Matthew Taylor

Matthew Taylor is retired from the Palatine Police Department. He served as a school resource officer, general patrol, and instructor to other officers on the law. While he was on the force he obtained his law degree and now practices law full time.

Learn More About Matt Taylor…

* mjtaylorlaw.com* [email protected]* (847) 894-8038

“Can’t Miss” Moments:

✓ All the important details you’ve forgotten about the landmark case Terry v. Ohio and why they matter. (Go to 3:10)

✓ What the court got write in 1968. Terry stops and frisks were happening before the term “reasonable suspicion” entered the lexicon. (Go to 7:50)

✓ The “perception separation” makes it hard to understand what policing was like before computers. (Did you know call boxes were invented in Cleveland?) (Go to 9:55)

✓ The reason why Terry was important to law enforcement officers. What changed for them? What reasonable suspicion really means in the streets. The beautiful words were… (Go to 12:00)

✓ The facts described in this case are a pretty common and typical scenario. How you feel about the outcome depends on how you see things. (Go to 13:38)

✓ A sure fire way to set off alarm bells in a police officer’s head is to do this. “Those alarm bells is what officers call reasonable suspicion.”  -Matthew Taylor (Go to 16:20)

✓ When rolling up your sleeves is the beginning of a bad day.  (Go to 18:44)

✓ “That’s a green light and a Christmas gift all in one for an officer to hear that.” – Matthew Taylor

✓ “Case law is littered with officers who don’t care…that’s the burden of every good officer out there, to overcome those officers by doing it right…” – Matthew Taylor (Go to 27:20)

✓ The right way to conduct a police-citizen encounter. What police and attorneys have in common. Why tone and attitude really matter. (Go to 30:44)

✓ The reason why a police uniform can’t always be seen as an authoritarian symbol. (Go to 32:15)

✓ How a police officer got a law degree, stayed on the force and became an “officer lawyer.” How love for the cases, the law and the constitution turned into a police instructor and scholar. “I’m more of a constitutional enthusiast than I am a scholar but…” – Matthew Taylor  (Go to 43:01)

Cases Mentioned

* Terry v. Ohio, 392 U.S. 1 (1968* People v. Smith,

People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59)

In this search and seizure case 25 minute wait for the sniff dog was too long.

Drug Charges

The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).

The Stop

Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change.

A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives.

Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket.

The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained.

The Video

The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed.

They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run.

Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it.

Issue

Thus, the issue turns upon whether the encounter from that point forward was consensual.

Mendendhall Factors

We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case.

Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 

Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do.

Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen.