People V. Al Burei

Journey for Kentucky Cigarettes Beginning in 2003, Makes Second Stop at Illinois Appellate Court in 2010, After Brief Overnight Stay in Illinois Supreme Court in 2008, with its Final Destination Likely to Again be the Illinois Supreme Court, Possibly by the year 2012, Although Others Have their Doubts as to When the Case Will Finally Reach Conclusion, IF EVER.

Why is the trip of our main character, Omar Al Burei, to illegally smuggle one of Kentucky’s cash crops back to Illinois to avoid tax on his cigarettes important enough for me to write about you might ask? Well, because it has to do with 4th Amendment Rights and the expectation of privacy one has as a traveler (in this instance a passenger) in a motor vehicle. No, it’s not a new debate, but lines are continually being drawn and redistricted, and it’s important for both sides to know what the boundaries actually are at any given time.

While the Fist District’s September 30, 2010, opinion does not disclose where Mr. Al Burei’s journey began or what exactly his route was, the van he was in was stopped by Officer Glen Tienstra of the Hickory Hills, Illinois Police Department for an illegal U-turn and a cracked windshield. It is emphasized more than once in the opinion that the traffic stop was effectuated directly across from the police department. This is likely to discredit the State’s argument that officers needed to remove both passengers of the vehicle for officer safety concerns, as this is what the officer claimed was the reason for him removing both occupants. The time between the stop and the defendant exiting the vehicle was approximately five minutes at the most. After both occupants had exited the vehicle, the testimony of law enforcement and Al Burei differ as to whether or not Officer Tienstra was given permission by Al Burei to search the vehicle. The circuit court found that Officer Tienstra asked for and received consent to search the vehicle, but further found that the officer’s questioning of the defendant “was completely unrelated to the initial purpose of the stop”, and suppressed the cigarettes seized as fruits of the poisonous tree. At issue was the reasonableness of the detention of Al Burei and whether or not it violated fundamental principles of the fourth amendment.

As stated in the first district’s opinion, in order for the detention to conform to fourth amendment principles, (1) the officer’s actions must have been justified at its inception, and (2) the detention must be “reasonably related in scope to the circumstances which justified the interference in the first place.”) With both parties conceding the legality of the initial stop, the court was required only to focus on the second part of the inquiry, which is whether or not the continued detention and questioning by Officer Tienstra exceeded the scope of the initial inquiry and whether his continued inquiries “impermissibly prolonged the detention or changed the fundamental nature of the stop.”

While the first district analyzed the facts of this case in light of prior precedence wherein defendants had unsuccessfully argued to the Illinois Supreme Court that the return of their paperwork followed by subsequent requests by officers to search constituted a second seizure violative of fourth amendment principles, the first district distinguished those cases factually from this case in that the initial seizure of the defendant had not been concluded at the time the officer requested to search the vehicle. Al Burei at p. 13. Therefore, the court concluded that there was never a second detention, and that the officers’ actions violated the duration prong by prolonging the traffic stop beyond its lawful purpose. Id. The court opined that once Mr. Ghaban had given a plausible explanation about his nervousness, the conversation should have ended, and the officer should have then proceeded to issue the appropriate traffic citations. Id. The continued detentions of Ghaban and Al Burei, therefore, transformed an otherwise lawful stop to an unlawful one because the officers unnecessarily prolonged it beyond the time reasonably required to complete its purpose, and furthermore, changed its fundamental nature, “because it infringed upon the defendant’s legitimate interest in privacy”. Id. at p. 15, 18.

The issue of prolonged stops is litigated with surprising regularity in the trial courts of Illinois and likely the other 49 states of this country. The fourth amendment issues raised in Al Burei were especially interesting to this author, because just recently such issues were preserved for a client of the Dodds Law Office who is anxiously waiting for his case to be heard by the justices of the fourth district. Preservation is key, and that is why it is so incredibly important to hire an experienced Illinois Criminal Defense Attorney who can identify such issues, argue them in a motion to suppress, and make certain that they are preserved for appellate review. Will the rationale of the first district carry the day for this client? Will Al Burei be upheld if it again reaches the Supreme Court of Illinois or the United States Supreme Court? Your guess is as good as mine, but I think it is fair to say that travelers of our highways and byways shouldn’t be subjected to lengthy interrogations about where they’re going and what they’re doing for simple traffic violations, whether or not the detainee has contraband or is otherwise up to no good. Why you ask? Simply because we would be subjecting the greater majority to invasions of privacy intended to ensnare the indiscretions of a select few; well, that’s the way I see it anyway.

1. http://goo.gl/Tnarb
2. if the Mayan’s calendar proves to be inaccurate after all
3. no, I’m not referring to cannabis, although some may argue that cannabis now rivals tobacco or has even overtaken tobacco as Kentucky’s no. 1 income producing agricultural crop; but, there are plenty of other sites out there in existence taking sides on this debate.
4. While the First District’s Opinion does not disclose which Department Officer Tienstra was employed by, an internet search revealed that Officers Tienstra and Beckwith are or were both employed by the Hickory Hills Police Department
5. Officer Tienstra testified that he was concerned for his safety, because the driver, Majdi Ghaban displayed nervous behavior and kept looking at the defendant, Omar Al Burei, although according to the Officer, Al Burei did not appear nervous
6. citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (U.S. 1968); People v. Gonzalez, 204 Ill.2d 220, 226, 228 789 N.E.2d 260 (Ill. 2003)
7. People v. Cosby, 231 Ill.2d 262, 898 N.E.2d 603 (Ill. 2008), applying the Mendenhall factors as set forth in United States v. Mendenhall, 446 U.S. 544, 64 L.Ed 2d 497 (U.S. 1980). The Mendenhall factors include (1) whether there was a threatening presence by several officers; (2) whether the officer displayed a weapon; (3) whether there was some physical touching by the officer; and (4) whether the language or tone of voice used by the officer indicated that compliance with the officer’s request was compelled.