The opinion of the court was delivered by: Justice Freeman
Docket No. 88833-Agenda 13-September 2000.
Following a bench trial in the circuit court of Bureau County, defendant Edwin Ortiz was convicted of drug trafficking (720 ILCS 570/401.1 (West 1994)) and sentenced to 35 years' imprisonment. Defendant appealed, and in December 1995 the appellate court filed with its court clerk a document which purported to reverse defendant's conviction on the grounds of insufficiency of the evidence. The State's petition for rehearing was denied, and we denied leave to appeal in June 1996. Subsequently, in August 1997, the State moved for a writ of mandamus or a supervisory order, directing the appellate court to vacate its December 1995 order and issue a "valid opinion." We issued a supervisory order to that effect, and denied defendant's motion for reconsideration. Defendant's subsequent petition for a writ of certiorari in the United States Supreme Court was also denied. In January 1999, the appellate court issued a document in the form of an opinion to be published, which denied defendant's motion to have that court declare its December 1995 filing a final order. In December 1999, the appellate court affirmed defendant's conviction. No. 3-95-0261 (unpublished order under Supreme Court Rule 23).
We thereafter granted defendant's petition for leave to appeal (155 Ill. 2d R. 315) from the appellate court's December 1999 order affirming his conviction. For the reasons that follow, we reverse.
Defendant's conviction arose out of the events of December 9, 1994. On that date, pursuant to a consensual search after a traffic stop, police discovered 100 kilograms of cocaine inside a secret compartment in the truck tractor semi-trailer which defendant was driving.
At defendant's trial, the following evidence was adduced during the State's case in chief. The State's first witness was Illinois State Trooper John Balma, who testified as follows. On December 9, 1994, Balma observed a blue tractor trailer traveling eastbound on Illinois Route 80. The vehicle was moving at a speed of 63 miles per hour, which was 8 miles per hour in excess of the posted speed limit. Balma stopped the truck to issue a traffic citation.
Defendant was driving the truck, and there was a female passenger in the cab with him. Upon Balma's request, defendant produced his license and registrations. Balma testified that defendant produced his driver's license from his pocket; he did not remember where the registrations had been kept. Defendant's New Jersey driver's license was valid and the registrations for the tractor and the trailer matched the VIN numbers for the vehicles. The vehicles were registered to a Danny Estrella, which Balma confirmed by radio. Balma testified that even though this paperwork was in order, defendant seemed "extremely nervous," more so than was in his experience ordinary for a traffic stop.
Defendant told Balma that he was hauling oranges from Fillmore, California, to New Jersey, and produced a bill of lading. The bill of lading indicated that the truck contained 630 cases of oranges, which were owned by Star Produce. "Star Produce" was written on the side of the truck, as well.
Balma requested defendant's log books, in which were kept the records of every stop made by the truck. The books indicated that defendant's trip had actually begun in Tennessee, not California. When Balma asked defendant why he had begun driving in Tennessee, defendant told him that he and a codriver, Juan Colon, had driven together from New Jersey to California; Colon had driven from New Jersey to Tennessee and defendant began driving in Tennessee. Balma also determined from the log books that this was the second cross-country trip defendant had made in the recent past, and on the other trip Colon was with him the entire way as a codriver. Defendant told Balma he was paid $900 to $1,000 for each trip, even though he had a codriver on the previous trip.
Balma testified that this was an abnormal pay arrangement. Balma had been a truck driver for approximately 15 years before becoming a law enforcement officer. Based on his prior experience, he believed driving pay was based either on mileage or an hourly rate, but in either event the total amount of money was split between the drivers if there was more than one. For a driver to receive the same pay regardless of whether he had a codriver was "very unusual." However, Balma admitted that time was sometimes of the essence in delivery and that a truck would be able to make better time more safely with two drivers sleeping in shifts than with a single driver.
Balma further noted from his review of the log books that after defendant and Colon had driven to California they had stayed there approximately a week before beginning the return trip to New Jersey. When he asked defendant why he had been there so long, defendant stated that he was "waiting for them to pick their oranges." When Balma asked if his trailer was full, defendant stated that it was only half-full, which Balma also found very unusual, because it was not cost-effective to transport half-loads of products across the country. Balma stated that defendant said that Colon had loaded first and filled his trailer, and defendant just took what was left of the load. Balma admitted that during his years in the industry he had sometimes thought that an employer was not making the best use of his truck or his time, but he still did what his employer asked because that was what he was being paid for.
When Balma asked about the female passenger in the vehicle defendant said that she was his wife. He said that she had not driven out with him to California from New Jersey. Balma testified that defendant told him that the truck owner, Estrella, had flown her out from New Jersey to California to be with him. At this point Balma observed that defendant "was becoming extremely nervous." Defendant was "constantly rubbing his hair," tapping his foot, and "wiggling" his leg. Balma admitted that he did not know defendant and had no idea of his general demeanor.
Balma inspected the truck and issued defendant a written warning. Shortly before Balma gave defendant the warning, defendant volunteered that it had been "a bad trip, he got stuck in California. He was searched three times in Utah. And now this." After giving defendant the warning and returning his documents, Balma advised him that he was free to go. However, Balma then asked defendant if he had anything illegal in his vehicle. Balma testified that defendant turned his head away and replied, "No, do you want to look?" Balma told defendant that he would like to, and produced a voluntary consent form, which defendant signed.
Balma called for backup and Troopers Kathy Miroux and Michael Ketter responded. Defendant retrieved a key for a padlock on the trailer portion of the truck and opened it. Balma proceeded to search the truck while defendant sat in Balma's patrol car in the custody of the other troopers.
The truck was approximately half-full of boxes, which were labeled as containing oranges. The entire load was towards the front half of the trailer. Balma climbed on top of the boxes and crawled approximately 20 to 25 feet over the top of them to the front of the trailer. When he shone his flashlight down he saw a sheet of aluminum "diamond plate" affixed to the front wall of the trailer which appeared to be fairly new. He testified that it was obvious as soon as he saw it that the plate was not part of the original makeup of the trailer, but admitted that the plate was not visible from the rear of the truck.
When Balma shone his flashlight between the plate and the front wall of the trailer he saw a yellow wrapped package. Further observation revealed that there was more than one package. He punctured one of the packages and the material inside appeared to be cocaine. Balma exited the vehicle and placed defendant under arrest, telling him that there was cocaine in the vehicle. According to Balma, defendant "just basically submitted to the arrest. He didn't ask why or where or who or anything. He just showed very little emotion."
Balma testified that after arresting defendant he seized $561 from defendant's person. Balma also identified two pagers which were found on the visor above the driver's seat in the cab of the truck. He stayed with the truck while it was towed to a location where the oranges could be unloaded and then watched as the plate at the front of the truck was removed. Behind the plate were 61 packages of cocaine, containing what was stipulated to be 100 kilograms of 76.9% pure cocaine, with an estimated street value of $30,760,000.
Trooper Balma also testified over objection that on September 28, 1994, he had arrested two men, Pedro Then and Orlando Fernandez, when he found 67 kilograms of 88.1% pure cocaine in a Ryder truck in which they were traveling eastbound on I-80.
Balma admitted on cross-examination that when he was a driver he had hooked his tractor to preloaded trailers without observing the loading process. He stated that although he would look inside the trailer before leaving, the inspection was limited to making sure that the load was secure. If things appeared to be loaded correctly he did nothing further. He also testified that at some point during the stop, defendant had told him that Colon was in another truck and was also hauling oranges and was somewhere behind him.
Illinois State Trooper Kathy Miroux verified Balma's testimony that after she and Trooper Ketter arrived on the scene they took custody of defendant while Balma entered the trailer and conducted the search. She testified that defendant looked very nervous while Balma was in the truck and that he mostly watched the rear of the truck during the six- or seven-minute search.
The State next called Ottawa Police Officer John Malone, who was assigned to the District 17 State Police Drug Task Force at the time of defendant's arrest. He interviewed defendant after his arrest. Defendant was advised of his constitutional rights and waived them. Malone testified that defendant was very calm during the interview. He told Malone that all he knew was that he was hauling oranges from the west coast. He stated that when he picked up his load at the Sunkist Corporation in Fillmore, California, the trailer was already loaded. He merely hooked up the tractor and headed out.
Defendant told Malone that Danny Estrella owned the tractor trailer he was driving. He had met Estrella only once, at a restaurant in New York. Juan Colon, a codriver and a friend of his, had introduced them, and defendant had agreed to drive for Estrella. Defendant told Malone that Colon was also driving a tractor-trailer containing oranges to New Jersey, but the last time defendant had seen him was near the Iowa border, because Colon's truck had broken down.
Malone testified that he found a photograph in the cab of defendant's truck. The photograph showed defendant and Colon standing in front of two trucks. Colon had what appeared to be a large gun tucked into the waistband of his pants. Malone also found several truck parking receipts from Ship-side Service, Inc., in Elizabeth, New Jersey. Each one listed the name of the driver who had picked up a truck on a particular date. The most recent receipt, dated November 24, 1994, listed defendant as the driver. An earlier receipt listed Colon, while two others listed the driver simply as "Pedro" and another receipt was issued to "Danny." Malone testified that the receipts had been found in the cab of the truck defendant was driving, but he did not know where specifically, whether on the floor of the cab or among defendant's belongings. He admitted that it would make sense that whoever had picked up the truck would simply drop the receipt in the cab.
Additionally, Malone found a bill from a New Jersey truck stop in the name of Orlando Fernandez in a blue binder or folder holding the registrations for the tractor and trailer in the cab of the truck defendant was driving. Malone admitted that it would make sense that the folder belonged with the truck, rather than defendant, since the registration had to be kept with the vehicle.
Malone was also permitted to testify that he had found a receipt for a repair bill signed by Pedro Then among Colon's belongings in the truck Colon was driving when he was arrested later that day.
Malone admitted that defendant answered all of the questions which were posed to him. However, when Malone asked defendant to "cooperate with [the police] in terms of bringing the truck to New Jersey and following through," defendant refused, telling Malone that Colon got the job for him. Malone understood defendant to be saying that Colon knew Estrella better than defendant did.
Illinois State Trooper Larry Thomas made a traffic stop of Colon later that day. After a consensual search of his truck, police discovered 285 kilograms of 88.4% pure cocaine, a shipment with a street value of over $100 million. Thomas testified that he had been specifically advised to look for the trailer Colon was driving as a result of Malone's interrogation of defendant.
At the conclusion of the State's case in chief, the defense moved for a directed verdict, which the circuit court ...