IL: Directing driver to roll up windows and turn blower on high was not a “search”; a case of first impression [coming out wrong]

In a case of first impression, directing the driver of a vehicle to “perform[ ] a set-up procedure” of rolling up the vehicle’s windows and turning the blower on high for a dog sniff was not any different than “prepping” a suitcase by squeezing the air out of it first. (Over a vigorous dissent.) People v. Bartelt, 241 Ill. 2d 217, 349 Ill. Dec. 949, 948 N.E.2d 52 (2011) (4-3):

After a lawful traffic stop, a police officer performed a set-up procedure, which entailed ordering the driver, defendant, Cheryl L. Bartelt, to roll up her truck’s windows and turn the ventilation system’s blowers on high before a second officer conducted a canine sniff of the exterior of her truck. The dog alerted on both doors of the truck, and a subsequent search of the truck resulted in discovery of drug evidence. Defendant was arrested and charged with unlawful possession of methamphetamine …. She filed a motion to suppress the evidence recovered during the traffic stop. The circuit court of Adams County granted the motion to suppress. The State filed an interlocutory appeal …. A majority of the appellate court reversed the circuit court’s order suppressing the evidence. 384 Ill. App. 3d 1028. This appeal followed.

We are asked to determine whether the officers’ actions in ordering defendant to roll up her windows and turn the blowers on high before conducting a dog sniff of the truck’s exterior constituted an unreasonable search under the fourth amendment. We hold that it did not. Accordingly, we affirm the judgment of the appellate court, reverse the judgment of the circuit court, and remand to the circuit court for further proceedings consistent with this opinion.

. . .

In addition, it is undisputed that the officers had the authority to conduct an exterior dog sniff of defendant’s truck during the traffic stop and that the dog sniff itself was not a search subject to the fourth amendment. See Illinois v. Caballes, 543 U.S. at 408-10 (holding that a suspicionless dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance no individual has any right to possess is not a search subject to the fourth amendment).

Finally, there is no dispute that Officer Tyler ordered defendant to comply with the set-up procedure. As noted, the State conceded in the circuit court that Officer Tyler ordered defendant to perform the procedure and did not give her the option of refusing to comply.

The only issue on appeal is whether the officers’ actions in ordering defendant to roll up her windows and turn the blowers on high before conducting the dog sniff of the truck’s exterior constituted an unreasonable search under the fourth amendment. This seems to be an issue of first impression nationwide because the parties have not cited, nor has our research revealed, any decisions that have addressed the issue.

. . .

The set-up procedure at issue in this case is analogous to the luggage “prepping” procedure approved by the Fifth Circuit in United States v. Viera, 644 F.2d 509 (5th Cir. 1981). In United States v. Viera, Drug Enforcement Administration agents “prepped” the defendants’ suitcases before a dog sniff by pressing them lightly with the hands and slowly circulating the air, the purpose of which was to procure a scent from the bags. Viera, 644 F.2d at 510. The Fifth Circuit rejected the defendants’ argument that the “prepping” procedure was a search in violation of the fourth amendment, holding that a dog sniff is not a search within the meaning of the fourth amendment and that a light press of the hands along the outside of the suitcases was not sufficiently intrusive to require a different result. Id.

Similarly, in the present case, a dog sniff is not a search within the meaning of the fourth amendment, and ordering defendant to roll up her windows and turn the blowers on high before conducting the dog sniff was not sufficiently intrusive to require a different result. See id.

JUSTICE FREEMAN, dissenting:

This appeal squarely presents the question of whether a police officer’s order to a driver, during a routine traffic stop, to perform a “set-up” procedure to facilitate a canine sniff for narcotics, is an unreasonable seizure which violates the fourth amendment. It is my view that it is. Despite the fact that this precise issue was litigated by the parties in the circuit court, and even though the majority’s own recitation of the factual background and procedural history of this cause repeatedly references seizure principles, my colleagues decline to analyze this appeal in the context of whether defendant was subjected to an unreasonable seizure. Instead, they review the propriety of the police action by inquiring whether the “ordering” of defendant to perform the set-up procedure is “an unreasonable search.” Slip op. at 8. Using this inappropriate analytical framework, the majority holds that there is no constitutional violation. As I agree with neither the majority’s analysis nor the result, I respectfully dissent.

[Note: I find United States v. Viera, 644 F.2d 509 (5th Cir. 1981), completely unavailing to the majority. The suitcase there was sitting in front of them. Is sitting on it a search? Not really, although if I were the judge, I say yes, but I’m not. Look at this case at its irreducible minimum: Could the officer have entered the car to do the “set up procedure”? If the answer is no, then how could the driver be ordered to do the “search” for the police? The driver couldn’t. And, just saying Cabelles says a dog sniff isn’t a search is no answer because they would have to enter the car to make it work, and that is where the majority completely fails in its duty here.]