“No Talking” Command Was An Order Not A Request

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

25 minute wait for the sniff dog was too long.

The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).

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 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.

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

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. In a short span of time, toward the very beginning of the purportedly consensual portion of the stop, Thulen had thus made a number of demands of Lee. A reasonable person would not believe that he was allowed to leave the scene completely if he was not even allowed to speak to his friend.

In its initial brief, the State ignores Thulen’s command that defendants not speak, only describing Thulen’s tone and language as “respectful, polite, and deferential to [defendants’] wishes as to whether they would remain on the scene.” In its reply brief, the State simply asserts that Thulen’s command “was merely for officer safety.”

To be sure, this court recognizes an officer’s need to protect himself or herself by preventing individuals from communicating in a language that the officer does not understand.

However, Thulen did not calmly ask defendants to speak in English. Instead, he loudly ordered them to stop speaking completely.

Thulen himself testified that he erred in delivering the command that he did, admitting that he should have asked defendants to speak in English. Again, a reasonable person who has been forcefully commanded by an officer to stop speaking would not feel free to enter his vehicle and drive off.