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03/29/96 PEOPLE STATE ILLINOIS v. RENE OLIVAREZ

March 29, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RENE OLIVAREZ, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 92 CR 27272. THE HONORABLE EARL E. STRAYHORN, JUDGE PRESIDING.

The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: Cousins

The Honorable Justice COUSINS delivered the opinion of the court:

Defendant Rene Olivarez was convicted, following a bench trial, for cannabis trafficking and possession of cannabis with intent to deliver. The trial judge sentenced him to eight years' imprisonment. On appeal, Olivarez argues that: (1) the cause should be remanded for a finding of fact as to whether the encounter between him and the police was consensual; (2) his sentence must be vacated and the cause remanded because both parties did not agree to the sentence and a presentence report was not presented to or considered by the court prior to imposition of sentence; (3) the offense of possession of cannabis with intent to deliver must be vacated because it is a lesser included offense of cannabis trafficking based on the same act of carrying a bag containing cannabis; and (4) the order of sentence and commitment must be amended because the order does not accurately reflect his sentence credit for time spent in custody from the date of arrest to the date of sentencing.

BACKGROUND

On December 7, 1992, Olivarez was charged by indictment with cannabis trafficking and possession of cannabis with intent to deliver. Prior to trial, Olivarez filed motions to quash arrest and to suppress evidence. On March 4, 1993, a hearing was held on the motions. Officer Mostek testified that on November 3, 1992, he was assigned to the DEA task force, conducting narcotics investigations and monitoring Amtrak trains arriving from California and Texas. Mostek was dressed in plain clothes and working with Officers Krok, Gainer and Boertlien. He was looking for couriers of controlled substances who fit the description of "male Hispanics coming from a source city with bags in their hands." At approximately 2:10 p.m., Mostek was standing on the platform, next to an Amtrak train that had just arrived from Texas. He saw two men, Olivarez and Ralavara Valencia, who fit the description of drug couriers. Olivarez was carrying a large green bag and he was walking toward the entrance of the station with Valencia. As Olivarez walked past Mostek, Olivarez looked quickly over his shoulder at Mostek. Mostek and Krok began to follow Olivarez, and Olivarez looked over his shoulder at Mostek at least two more times. Mostek saw Olivarez lean towards Valencia and then both looked over their shoulders at Mostek again. Mostek and Krok continued to follow the men into the train station until Olivarez and Valencia stopped and turned back towards the entrance. The officers approached them. Mostek displayed his badge, identified himself and asked if he could talk to them. Olivarez responded "yes" and Mostek asked them if they were traveling together. Olivarez responded "yes" and Valencia said "no." Mostek further asked Valencia if he knew Olivarez, and Valencia responded "no," he had just met Olivarez on the train. Mostek then asked the men if they had train tickets. Olivarez said "no" and Valencia said "yes." Olivarez stated that Valencia had his ticket because Valencia had purchased and made reservations for both of them.

Valencia asked Mostek if there was any trouble. Mostek responded that there was no trouble and informed Olivarez and Valencia that he was conducting narcotics investigations which involved monitoring trains from Texas and California. Mostek informed them that they were not under arrest, he was not detaining them and thanked them for their cooperation. Olivarez and Valencia did not attempt to leave. Mostek asked to see their identification, and Olivarez produced a social security card. Mostek returned the identification. Olivarez and Valencia consented to Mostek's searching their bags. Officer Krok searched Olivarez' bag and found several large packages he believed to be cannabis. Olivarez was arrested and subsequently charged with cannabis trafficking and possession of cannabis with intent to deliver. Mostek's report identified Officers Gainer and Boertlien as witnesses.

Olivarez testified at the hearing on his own behalf. On November 3, 1992, at approximately 2:15 p.m., he got off a train at Union Station and was walking with Valencia toward the station entrance. As he was walking inside the station, a man approached on his right side. Olivarez was not aware the man was a police officer until the man presented his badge.

The officer began asking Olivarez and Valencia questions. Olivarez noticed two other men standing around, who also showed their badges and identified themselves as police officers. The first officer asked them for their identification and train tickets. The officer did not immediately return Olivarez' identification. The officer continued to ask Olivarez questions and then searched his bag. Olivarez denied that he gave the officer permission to search his green bag. Olivarez stated that no one had given him any packages to place inside his bag. Olivarez further testified that he assumed that Valencia had given the officer permission to search Valencia's bags. He stated that the officer was not visibly armed and the entire questioning took place inside the train station, which was crowded "like any other train station." Olivarez estimated that five minutes elapsed between the time the officer first questioned him and when the officer opened his duffel bag.

At the conclusion of the hearing, the trial judge denied the motion and based his decision upon Olivarez' "lying statements to the police officers concerning the ticket and his knowledge of the [other] individual."

At the bench trial, the parties stipulated that the evidence heard on the motion to suppress would be the same evidence heard at trial. The State called Officer Krok. He testified that on November 3, 1992, he was on duty with Officer Mostek at Chicago's Union Station. Olivarez consented to Krok's searching his bag, and Krok seized bundles wrapped in plastic which he believed to be cannabis.

After both parties stipulated that the chain of custody was proper, the trial judge found Olivarez guilty of both offenses and sentenced him to eight years' imprisonment. Olivarez appealed.

We affirm in part, vacate in part and remand.

I

Olivarez first contends that this case should be remanded for a finding of fact as to whether the encounter between him and the police was consensual or a detention. An order or judgment granting or denying a motion to suppress should state the findings of fact and conclusions of law upon which the order or judgment is based. 725 ILCS 5/114-12(e) (West 1992). This requirement serves the salutary purpose of enlightening the appellate court as to the evidence and reasoning relied upon below, and thereby facilitates review. People v. Hinton, 249 Ill. App. 3d 713, 718, 619 N.E.2d 198, 188 Ill. Dec. 834 (1993). However, findings of fact and conclusions of law do not require reversal if the evidence would sustain the ruling of the trial court. Hinton, 249 Ill. App. 3d at 718. On a motion to suppress evidence, the burden is on the defendant to demonstrate that the particular intrusion was illegal. People v. Lynch, 241 Ill. App. 3d 986, 989, 609 N.E.2d 889, 182 Ill. Dec. 355 (1993); People v. Brink, 174 Ill. App. 3d 804, 529 N.E.2d 1, 124 Ill. Dec. 284 (1988). Further, this court will not disturb the determination of a circuit court on a motion to suppress evidence unless the determination is manifestly erroneous. People v. Williams, 164 Ill. 2d 1, 12, 645 N.E.2d 844, 206 Ill. Dec. 592 (1994).

In this case, during the argument on the motion to suppress, the following colloquy took place:

"MS. ROSENBLUM [Assistant State's Attorney]: In this situation, Officer Bostick [sic] testified that he approached Mr. Olivarez and another individual after observing them for sometime for the purposes of a consensual interview, and the first statement they said and the question they ...


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