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06/16/97 PEOPLE STATE ILLINOIS v. MIGUEL PEREZ

June 16, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MIGUEL PEREZ, DEFENDANT-APPELLANT. THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE, V. CARLOS J. DIAZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois. No. 96--CF--16. Honorable James J. Wimbiscus, Judge Presiding. Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois. No. 96--CF--17. Honorable James J. Wimbiscus, Judge Presiding.

Rehearing Denied July 14, 1997. Released for Publication July 14, 1997.

Present - Honorable Tom M. Lytton, Presiding Justice, Honorable Michael P. McCUSKEY, Justice, Honorable Kent Slater, Justice. Justice McCUSKEY delivered the opinion of the court. Lytton, 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:

Following a stipulated bench trial, the defendants, Miguel Perez and Carlos J. Diaz, were convicted of controlled substance trafficking (720 ILCS 570/401.1 (West 1994)). Pursuant to an agreement, both defendants were sentenced to a term of 40 years in the Department of Corrections. The defendants each filed a timely notice of appeal. The appeals were consolidated by this court.

On appeal, both defendants argue that the trial court erred when it found: (1) the initial stop of Perez's truck was lawful; (2) the police officer did not illegally detain the defendants; and (3) that Perez gave a valid oral consent to search and dismantle the truck. In addition, Diaz argues: (1) the trial court erred when it found Diaz did not have standing to challenge the search; and (2) that his sentence is excessive. Following our careful review of the record, we affirm the trial court's judgment in both cases.

FACTS

At 8:13 a.m. on February 19, 1996, John Balma, a sergeant with the Illinois State police, stopped a Chevy truck on I-80 near Princeton. Perez was driving the truck, and Diaz was a passenger in the vehicle. At the suppression hearing, Trooper Balma testified that he saw the truck move partially over the center line from the right lane into the left lane. Balma stated that this happened several times and, at one point, almost half of the truck was in the left lane. Balma said the truck did not signal a lane change. At the time of the stop, Balma activated the video camera installed in his State police car. He was also wearing a battery operated microphone which transmitted the sound to the camera. The videotape (tape) of the stop was played at the suppression hearing. The tape clearly shows Balma approached the truck and told Perez that he saw him weave over the center line several times.

Balma testified that, when he pulled in behind the vehicle to effect a stop, he noticed the spare tire underneath the truck was much lower than usual. Balma was very familiar with trucks because of his experience as a State trooper for eight years. In addition, he said that he worked as a trucker for 15 years before he joined the Illinois State police. Based upon his experience and knowledge, Balma believed that the rear portion of the truck had been modified in some way.

Balma said he asked both Perez and Diaz for a driver's license. Perez told Balma that he had a temporary registration for the vehicle. Balma thought this response was odd because the truck had license plates. At 8:15 a.m., Perez went with Balma to the squad car and sat in the passenger seat. Balma radioed in a request for a driver's license check on both licenses. He also requested a criminal history background check and a warrant check. Balma talked continually to Perez while he was seated in the squad car. Most of the conversation can be clearly heard on the tape. It appears from the tape that Perez did not understand some of Balma's questions. However, when the questions were rephrased, Perez gave responsive answers. Perez told Balma that he was an auto mechanic in New York and had driven to California to purchase auto parts. Balma said he was checking the ownership papers on the vehicle while he talked to Perez.

At about 8:19 a.m., Balma started writing a written warning. He finished the warning at about 8:21 a.m. Balma then opened the door of his squad car, intending to go back to the truck to return Diaz's driver's license and check the temporary registration. At that point, a radio report came in which said that Perez's license was valid and he had no warrants or criminal history. The report on Diaz said that he had a 1985 controlled substance conviction in Pennsylvania. However, Diaz was 22 years old at the time of the stop and would have been only 11 years old in 1985. In fact, Diaz was later found to have no prior convictions.

At 8:22 a.m., Balma called in to request a canine unit. Balma then walked to the truck, spoke to Diaz and gave him his driver's license. Balma also checked and found the temporary registration on the window of the truck matched the vehicle identification number.

At 8:25 a.m., Balma returned to his squad car. He asked Perez to sign the warning, which Perez did. Balma testified that he then gave Perez his driver's license and a copy of the warning. At 8:26 a.m., Balma stated, "that's all there is to the stop and you're free to go." After a very brief pause, Balma asked Perez if he had anything illegal in the truck. Perez said, "no." Balma responded, "okay if I look?" and Perez clearly answered, "yeah." Balma said, "is it okay?" and Perez again answered, "yeah." Balma then prepared a consent to search form which was written in Spanish. At 8:27 a.m., Perez signed the form. Testimony was presented at the suppression hearing which indicated that the Spanish form was not written in the clearest language. Also, it appears from the record that Perez did not read the form when it was presented to him.

Balma then went to the truck with Perez and had Perez remove the tarp from the back of the vehicle. Balma looked at the items in the bed of the truck, which did include some auto parts. At 8:29 a.m., Balma looked closely at the underside of the vehicle. He testified that this look confirmed his suspicion that a compartment was built onto the underside of the truck. He told Perez that he was waiting for the other officer to arrive. At no time did Perez object to the length of his detention or tell Balma to stop searching the vehicle.

At 8:38 a.m., Trooper Craig Graham finally arrived with his dog. The parties stipulated that the State would not present any evidence regarding the actions of the dog in order to establish probable cause for the search. In fact, the tape shows no discernable alert by Graham's dog. At 8:41 a.m., Graham looked underneath the truck. Balma told him that the bumper had previously been removed. At 8:42 a.m., Graham did a patdown search of Diaz for weapons, and Balma conducted a patdown search of Perez. At 8:45 a.m., Graham began removing the truck's bumper. At 8:48 a.m., Graham could see packages in an enclosed area under the truck that, in his experience, were "common packaging for narcotics." At that point, both defendants ...


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