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January 24, 1994


Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois. No. 92-CF-46. Honorable George C. Hupp, Judge, Presiding.

Released for Publication February 24, 1994. As Corrected February 28, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

This appeal arises out of defendant's conviction for controlled substance trafficking. We reverse and remand.

On January 29, 1992, defendant, Alfonso Amaya, and Charlie Gutierrez were travelling eastbound in an eighteen-wheel semi-tractor trailer on Interstate 80 in LaSalle County when they were pulled over for speeding by Illinois State Police Sergeant Dan Gillette. Gillette approached the driver's side of the cab and noticed that Gutierrez, the driver, and the defendant were not wearing their seat belts. Gillette asked for their drivers' licenses and asked defendant if he was a co-driver of the truck. According to Gillette, defendant responded, "No, I'm just along for the ride." Gillette then asked Gutierrez to produce his vehicle registration, log book and bill of lading. Gillette asked Gutierrez to bring the documents and to come with him to the squad car, leaving defendant in the truck cab.

The documents produced by Gutierrez indicated that he was the owner of the truck and that he leased it to Glory Transport Company of Albuquerque, New Mexico. The bill of lading was signed by Gutierrez and showed that a cargo of potatoes had originated in Monte Vista, Colorado and was destined for Westbury, New York.

Gutierrez appeared nervous to Gillette. He issued Gutierrez written warnings for speeding, following too close and failing to wear a seat belt. Gillette then asked Gutierrez for consent to search the truck, and Gutierrez signed a written consent to a search.

As Gillette was exiting the squad car, he noticed that Illinois State Police Master Sergeant David Spahn had arrived to serve as back-up. Gillette advised Spahn that he had received consent to search the truck and trailer and asked Spahn to "keep an eye" on defendant. Gutierrez remained in the squad car.

Gillette then approached the cab of the truck on the driver's side, opened the driver's door and entered the cab. He advised defendant that Gutierrez had consented to search the truck and asked, "do you have any drugs in the truck?" According to Gillette, defendant smiled and said, "Yes--no, I mean no." Gillette then told defendant to step from the cab and to go with the trooper waiting for him outside of the truck. Defendant stepped from the cab and jumped to the ground next to Spahn.

Spahn noticed that defendant's belt buckle was undone and that his right hand was stuck into his right pants pocket. Spahn asked defendant what he was grabbing and asked whether he had any knives, guns or weapons. Defendant turned his back to Spahn and put his right hand back into his right pocket. Spahn pushed defendant's hand away from the pocket and conducted a pat-down search. Spahn felt a "hard lump * * * the size of a golf ball" in defendant's pants. Spahn removed a baggy from defendant's pocket and found that it contained a white powdery substance that Spahn believed was cocaine, and was later found to contain 3.7 grams of cocaine. Spahn placed defendant under arrest.

Gillette radioed for the "drug interdiction team," including Thor, a drug-sniffing dog, to come to the scene. When the "team" arrived, they conducted a "walk-around" of the truck, and Thor alerted on the trailer. Gillette asked Gutierrez to unlock the padlocks on the trailer. The troopers observed 42,000 pounds of packaged potatoes stacked in bags on wooden pal lets four feet high extending to the rear of the trailer. The troopers and Thor climbed into the trailer and, behind a five foot high piece of cardboard, found three large plastic tool boxes. Thor alerted to the tool boxes.

The troopers forced open the toolboxes and found 193 bundles containing 945 pounds of cocaine. Each bundle was wrapped in a one or two kilogram plastic package, 1/2 to 1/3 of which bore the marking "Reina I". No fingerprints were found on any of the bundles or the tool boxes. Tests on the cocaine revealed that it had a purity level of 87%.

Defendant was indicted for controlled substance trafficking (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401.1(a)) and unlawful possession of less than 15 grams of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c)). Following a jury trial, he was convicted of the charged offenses and sentenced to 50 years imprisonment for the controlled substance trafficking and 3 years for the unlawful ...

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