IL: Telling defendant he was free to go but his car was staying on I-80 for a dog sniff was a seizure of the person without RS

Defendant was seized when the officer who stopped him on I-80 said he was free to go but the car was staying for a dog sniff. The officer lacked RS at the time. People v. Davenport, 392 Ill. App. 3d 19, 910 N.E.2d 134, 331 Ill. Dec. 61 (2009), Rehearing denied 910 N.E.2d 134, 2009 Ill. App. LEXIS 674, 331 Ill. Dec. 61 (Ill. App. Ct. 3d Dist., June 29, 2009):

While the four Mendenhall factors are absent from this case, we believe [Off.] Thulen engaged in coercive conduct similar to the conduct contained in the Mendenhall factors. Initially, we note that Thulen’s numerous statements to the defendant and the other travelers that they were free to go are not dispositive. People v. Goeking, 335 Ill. App. 3d 321, 780 N.E.2d 829, 269 Ill. Dec. 357 (2002). In fact, Thulen’s actions suggested otherwise. After convincing Cagle to wait in the squad car, Thulen ordered the defendant to put her shoes on and exit her vehicle. When the defendant complied, Thulen asked her for consent to search and conduct a canine sniff of the vehicle. The defendant refused. In response, Thulen told the defendant and the other travelers that they were free to go, but he was detaining the vehicle until he could perform the canine sniff. Thulen told them they could walk away, hop the fence, or have Thulen call someone for a ride. However, these were not viable options for people traveling on an interstate highway between Colorado and Michigan. We hold that a reasonable person in this situation would not have felt free to leave. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25. Inasmuch as the defendant was an out-of-state traveler on an interstate highway with no mode of transportation, Thulen’s show of authority subjected the defendant to a seizure. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25.

[I had this issue years ago. Since walking on the highway or hitchhiking on an Interstate highway were offenses, it naturally follows that the driver cannot be told “you’re on your own, but all your car and your stuff is staying here” when you are, to you, in the middle of nowhere in a different state. This is no different that the seizure of the plane tickets in Mendenhall.]

Indiana recognizes that the emergency doctrine can apply to animal welfare entries where the evidence of animal maltreatment was really ugly and the neighbors had already entered the defendants’ yard to feed the dogs and saw that they were starving and some were dying. The entry led to proof that the defendant was involved in promoting dog fighting. Davis v. State, 907 N.E.2d 1043 (Ind. App. 2009) (Note: The facts underlying exigency here are strong. Where the gray area ends remains to be seen.)