People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36)

Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence.

Charges

Following a stipulated bench trial in the circuit court of Boone County, defendant, Ken Heritsch, was convicted of possession of more than 10 grams but not more than 30 grams of a substance containing cannabis (720 ILCS 550/4(c)). Because defendant had a prior conviction of possession of cannabis, the offense was a Class 4 felony.

Defendant was sentenced to a three-year term of probation and 90 days in the Boone County jail.

Gist

Defendant’s conviction was based on the discovery of cannabis in his vehicle following a traffic stop and a dog sniff. The time stamp on the video recording establishes a timeline of events.

Time Line of Events

(7:05:34 p.m.) Zapf testified that he observed the Mercury cross the fog line, after which he pulled the vehicle over.

(7:07:29 p.m.) Zapf approached the driver’s side of the Mercury (7:06:11 p.m.). Zapf asked defendant for his driver’s license and proof of insurance. Zapf then started to walk back to his squad car.

(7:08:12 p.m. to 7:08:20 p.m.) Before reaching the squad car, Zapf spoke briefly with Bogdonas about his observations of defendant’s condition. At the end of the conversation, Zapf asked Bogdonas to try to get defendant’s consent for a search of the Mercury. Zapf then returned to his squad car and ascertained that defendant’s driver’s license was valid and that he had no outstanding warrants. Zapf decided to issue a warning to defendant for crossing the fog line.

(7:09:53 p.m.) Meanwhile, Bogdonas had defendant step out of his vehicle, and she searched his person. Defendant did not consent, however, to a search of his vehicle. Bogdonas approached Zapf and told Zapf that defendant was being an “asshole”. Zapf had been writing a warning to defendant, but after speaking with Bogdonas, Zapf decided to issue defendant a citation for improper lane usage.

(7:10:59 p.m.) At that point, Zapf had written only defendant’s name on the warning. Zapf told Gardner that he had decided to issue a citation to defendant because Bogdonas said that defendant was a “jerk”.

(7:11:02 p.m.) Gardner then told Zapf to summon Officer Grubar, who worked with a drug detection dog, to the scene.

(7:11:07 p.m) Zapf made a radio call to Grubar at.

(7:11:33 p.m to 7:11:55 p.m) Grubar responded and told Zapf that she was unavailable. Zapf ended the call at.

(7:12:29 p.m. through 7:12:47 p.m.) Shortly thereafter, Zapf received a radio communication from Boone County deputy sheriff Kevin Smyth, who indicated that he would bring his drug detection dog, Bosco, to the scene. When Smyth arrived, he had Bosco conducted a free air sniff of the Mercury.

Citation Written While Sniff Was Done

Zapf then searched the vehicle, found cannabis, and placed defendant under arrest. Zapf testified that, while waiting for Smyth to arrive, he was in his vehicle and was working on defendant’s citation. Bosco completed the free air sniff while Zapf was still working on the citation. When Zapf finished writing the citation, he stepped out of his vehicle.

Smyth was questioning defendant.

Zapf testified that he walked to defendant, who was standing in front of Zapf’s vehicle. Smyth was walking back to his own vehicle. We note that the video recording shows that, when Zapf exited his squad car, he walked directly to defendant’s vehicle.

Drug Dog Did Not Delay

Smyth testified that identifying drugs by odor was among the things Bosco was trained to do. When Smyth arrived at the scene,