Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois. No. 92 CF 86. Honorable James J. Wimbiscus, Judge Presiding.
Released for Publication May 25, 1995.
Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Stouder, P. J., and Slater, J., concur.
The opinion of the court was delivered by: Mccuskey
The Honorable Justice McCUSKEY delivered the opinion of the court:
The defendant, George N. Koutsakis, was charged by indictment with the offense of cannabis trafficking (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705.1). Following a hearing, the circuit court of Bureau County granted Koutsakis' motion to suppress evidence and statements. The State appeals from the suppression order.
On appeal, the State contends that the trial court erred in granting Koutsakis' motion. We disagree and affirm.
This is the second time this case has been before this court on appeal. In People v. Koutsakis (1993), 255 Ill. App. 3d 306, 627 N.E.2d 388, 194 Ill. Dec. 272, we affirmed an order of the trial court which imposed sanctions on the State. The sanction order restricted the testimony of Trooper James Lower and Trooper Craig Graham, the State Police officers involved in the stop and search of Koutsakis' vehicle. The sanction order was imposed because the State destroyed a tape recording of various radio transmissions made by the officers during the stop and search of Koutsakis' vehicle. The tape was destroyed after it had been requested by Koutsakis' counsel.
Following remand, a hearing was held regarding Koutsakis' motion to suppress the evidence seized from his vehicle and the statements he made to the State police. At the beginning of the hearing, the prosecutor informed the judge that the parties had agreed that the judge could consider the evidence presented at the two hearings held prior to the first appeal.
Julie Maxeiner, a communications supervisor with the State police, had previously testified concerning written radio logs (logs) of communications involved in the stop of Koutsakis' vehicle. According to Maxeiner, the logs showed that Lower called in the stop of Koutsakis' vehicle just before 5:47 p.m. on November 11, 1992. An additional call was made at 5:51 p.m. indicating that the stop was progressing and Lower was comfortable with the situation. At approximately 6:05 p.m., Lower transmitted an activity code related to narcotics. Maxeiner stated that this code "just means somewhere in the officer's mind this had changed to a drug investigation." Maxeiner noted that this transmission occurred about 18 minutes after the stop. At 6:07 p.m., the logs indicated that Lower requested assistance and a tow truck. Maxeiner noted that the logs were not always correct, and the tape would provide more accurate information regarding the actual time of all radio transmissions.
At the suppression hearing, the sanctions order prohibited Lower and Graham from testifying concerning: (1) the time Lower stopped Koutsakis' vehicle: (2) whether Lower requested information on any other vehicle at the same time; (3) the time Lower began writing the warning ticket he gave Koutsakis for speeding; (4) the time Lower requested assistance from Graham; (5) Graham's location at the time he received Lower's request for assistance; (6) the information Lower transmitted to Graham regarding the need for assistance; and (7) the time Graham arrived at Koutsakis' vehicle with his dog. Nevertheless, the two officers did testify concerning the stop of Koutsakis' vehicle on November 11, 1992.
Trooper Lower said he was running radar on Interstate 80. The posted speed limit at his location was 65 miles per hour. Lower said he clocked Koutsakis' vehicle at 69 miles per hour. Lower then stopped the vehicle. Koutsakis produced a driver's license and a rental agreement for the vehicle. Lower asked Koutsakis to come back to his squad car. Lower then began writing a warning ticket. Lower stated that he was also waiting for Trooper Graham's arrival and for more information on the vehicle and the status of Koutsakis' driver's license. Lower also testified that he spent some time reviewing the rental agreement. Testimony was presented that a warning ticket requires significantly less information than a routine traffic ticket and takes less time to write.
When Trooper Graham arrived, Koutsakis was still seated in Lower's squad car. Graham exited his squad car accompanied by his drug-sniffing dog. Graham walked the dog around Koutsakis' vehicle. The dog alerted, and Graham informed Lower of the alert. Lower then asked Koutsakis if there were any drugs in the vehicle. Koutsakis initially denied knowledge of any drugs. Shortly thereafter, he admitted having a small bag of cannabis. As a result, the vehicle was subsequently searched, and a large amount of cannabis was found.
Koutsakis testified that he signed a completed warning ticket prior to Trooper Graham's arrival. Koutsakis said he was waiting for Lower to return his driver's license so he could leave. Instead of returning the license, ...