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12/30/96 PEOPLE STATE ILLINOIS v. JESSE J. ORSBY

December 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JESSE J. ORSBY, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 95-CF-167. Honorable Henry C. Tonigan III, Judge, Presiding.

Released for Publication February 4, 1997.

The Honorable Justice Rathje delivered the opinion of the court. McLAREN, P.j., and Geiger, J., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Following a jury trial, the defendant, Jessie J. Orsby, Jr., was found guilty of the offenses of unlawful possession of a controlled substance, unlawful possession of a controlled substance with intent to deliver, and armed violence. The trial court imposed concurrent sentences of 20 years' imprisonment on the offense of unlawful possession of a controlled substance with intent to deliver and 10 years' imprisonment on the offense of armed violence. No conviction was entered and no sentence was imposed on the possession offense. The defendant appeals.

On appeal, the defendant raises the following issues: (1) whether the stop and search of his vehicle violated his rights under the fourth amendment; (2) whether the trial court's denial of his motion for production of the informant and an in camera inspection of certain police records pertaining to the defendant and the informant violated his rights under the sixth amendment; (3) whether the defendant was proved guilty of armed violence beyond a reasonable doubt; (4) whether the strip search of the defendant violated his rights under the fourth amendment and article 1 of the Illinois Constitution; (5) whether the defendant was denied the effective assistance of counsel; and (6) whether the defendant's sentence is excessive. The State also raises an issue as to whether the defendant was properly sentenced for the offense of armed violence. We affirm the defendant's convictions but vacate his sentence and remand for a new sentencing hearing.

On January 18, 1995, Trent Robinson and Morris Wade, officers with the narcotics division of the North Chicago police department's anti-crime unit, were on duty, driving an unmarked police vehicle. It is not disputed that the defendant had been a target of an ongoing narcotics investigation being conducted by these officers. Officer Robinson had utilized a confidential informant to execute controlled narcotics buys from the defendant. One such buy had occurred earlier on January 18, 1995.

At approximately 7:15 p.m., Officers Robinson and Wade recognized the defendant driving a green Chevrolet automobile. The officers proceeded to follow the defendant's vehicle. After following the defendant for 2 1/2 blocks, they observed the defendant's vehicle swerve, fail to signal for a turn and that the vehicle had only one headlight. The officers requested assistance from Officer Darcy Brown for the purposes of effecting a traffic stop. Officer Brown effected a traffic stop of the defendant's vehicle. As Officer Brown approached the driver's side of the vehicle, she observed the handle of a small caliber handgun located next to the defendant's right thigh. Officer Brown confiscated the weapon while Officer Robinson secured the defendant and placed him under arrest. At the scene, the defendant's vehicle was searched by a police dog trained in narcotics detection. The dog bit or scratched at an area near the steering column. The officers seized the gun and some ammunition but found no narcotics.

The defendant and the vehicle he was driving were transported to the North Chicago police department. A further search of the vehicle revealed cocaine in a plastic bag in an area behind the dashboard to the right of the steering column. A pat-down search of the defendant revealed cocaine. A further search of the defendant's clothing revealed packaged cocaine in the left side of the defendant's underwear.

According to the defendant, at the time of the stop, he told the officers that he was taking his handgun to the practice range for target shooting. He denied having possessed or sold narcotics. The defendant further testified that he had been harassed by Officer Robinson over a long period of time.

The defendant contends, first, that the stop of his vehicle and his subsequent arrest were a pretext to search his vehicle and his person and violated his rights against unreasonable search and seizure pursuant to the fourth amendment of the United States Constitution. The defendant argues that where the purpose of a traffic stop is a pretext for a search or detention rather than a traffic violation, such a search or detention is improper. People v. Mendoza, 234 Ill. App. 3d 826, 837, 175 Ill. Dec. 361, 599 N.E.2d 1375 (1992). He further argues that evidence discovered and seized by means of a search subsequent to a pretextual arrest is inadmissible, excluded in order to deter police misconduct and prevent law enforcement officers from being rewarded for their subterfuge. People v. Alvarez, 243 Ill. App. 3d 933, 937, 184 Ill. Dec. 263, 613 N.E.2d 290 (1993).

In Whren v. United States, 517 U.S. , 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), the United States Supreme Court rejected the argument that traffic offenders may challenge probable cause stops generated by hidden reasons unrelated to enforcing the rules of the road. Whren, 517 U.S. at , 135 L. Ed. 2d at 101, 116 S. Ct. at 1777. Ulterior motives do not invalidate police conduct that is justified on the basis of probable cause to believe that a violation of the law has occurred. Whren, 517 U.S. at , 135 L. Ed. 2d at 98, 116 S. Ct. at 1774; People v. Thompson, 283 Ill. App. 3d 796, 798, 219 Ill. Dec. 241, 670 N.E.2d 1129 (1996). The constitutional reasonableness of a traffic stop does not depend on the actual motivations of the police officers involved. Whren, 517 U.S. at , 135 L. Ed. 2d at 98, 116 S. Ct. at 1774; Thompson, 283 Ill. App. 3d at 798.

In the case before us, Officers Robinson and Wade observed that defendant's vehicle swerved, failed to signal for a turn, and had only one headlight. Minor violations to be sure but violations sufficient enough to give the officers probable cause to believe that traffic laws of this State were being violated. See Thompson, 283 Ill. App. 3d at 798.

A similar situation occurred in Thompson. In that case, the police effected a stop of the Thompsons' van for a defective rear brake light. As the reviewing court acknowledged, the stop was not motivated by a desire to enforce the rules of the road but rather by an anonymous tip that the van contained alcohol and drugs. On the basis of the decision in Whren, the Thompson court held as follows:

"Even though the traffic offense masked other reasons for the stop unsupported by probable cause, ulterior motives cannot make otherwise lawful conduct illegal. The pretextual nature of the stop did not invalidate it. The police had probable cause for the stop. The inquiry ends there." Thompson, 283 Ill. App. 3d at 798-99.

The defendant responds that this case differs from Whren in that in Whren the officers stopped the vehicle in which Whren was a passenger for a traffic violation and then discovered the presence of contraband in plain view. Thus, in Whren, the sole motivation for the stop was the traffic violation, whereas in the present case the officers' motivation in stopping the defendant's vehicle was the information they had received regarding the defendant's drug-related activities. However, the reasonableness of the traffic stop does not depend on the actual motivations of the individual officers involved. Whren, 517 U.S. , 135 L. Ed. 2d 89, 116 S. Ct. 1769.

Since Officers Robinson and Wade had probable cause to effect a traffic stop of the defendant's vehicle, the defendant's rights under the fourth amendment were not violated.

Next, the defendant contends that the trial court erred in denying his motion for production of the informant and for an in camera inspection of the police records of the investigation of the defendant and prior transactions involving the confidential informant. The defendant argues that the denial of the production request impaired his ability to present a defense. Specifically, the defendant argues that production of the confidential informant would have given the defendant an opportunity to impeach the officers' testimony that there was an independent basis for stopping and searching the defendant's vehicle, as well as showing the extreme bias and prejudice of the officers against the defendant. The defendant also argues that such information would have enabled him to rebut testimony as to previous controlled drug buys involving him.

It is well settled that strong public policy reasons favoring the nondisclosure of an informant must be balanced against a defendant's need for the disclosure in order to prepare his defense or where the disclosure is essential for a fair determination of a cause. People v. McBee, 228 Ill. App. 3d 769, 773, 170 Ill. Dec. 685, 593 N.E.2d 574 (1992). However, if the issue is one of probable cause, and guilt or innocence is not at stake, the nondisclosure of an informer's identity is not error. McBee, 228 ...


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