Appeal from Circuit Court of Mason County No. 98CF94 Honorable Thomas L. Brownfield, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
After a bench trial, the trial court found defendant, Paul T. Raibley, guilty of two counts of child pornography (720 ILCS 5/ 11-20.1(a)(1)(vii) (West 1998)) and two counts of residential burglary (720 ILCS 5/19-3 (West 1998)). The court sentenced him to 12 years' imprisonment for each count, ordering that the terms run concurrently with each other but consecutively to a 10-year term of imprisonment that the United States District Court for the Central District of Illinois imposed, for the same conduct, in United States v. Raibley, No. 98-CR-40058. Defendant appeals on several grounds, but we need consider only one: that the trial court erred in finding defendant had consented to a police officer's taking the incriminating videotape from his pickup truck to the county jail and viewing it there. We agree with that contention and therefore reverse the trial court's judgment as well as the conviction on all four counts.
On October 14, 1998, the State's Attorney filed six - 2 -counts against defendant in the Mason County circuit court. Count I alleged:
"[O]n September 13, 1998, in Mason County[,] [defendant] committed the offense of [child pornography] in that *** defendant knowingly [videotaped] Jane Doe, a child whom *** defendant knew to be under the age  years, while [the] child was the object of lewd exhibition of the unclothed buttocks of another person [sic] ***."
Count II was identical to count I, except it alleged that defendant videotaped Jane Doe "while [the] child was depicted in a setting involving the lewd exhibition of the unclothed genitals of [the] child."
The State dismissed count III prior to trial, and the trial court acquitted defendant of count IV, predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 1998)).
"[O]n September 13, 1998, in Mason County, [defendant] committed the offense of [residential burglary] in that *** defendant knowingly and without authority entered the dwelling place of John Doe, located in Havana, Mason County, Illinois, with intent to commit therein a felony of child pornography ***."
Count VI repeated count V verbatim.
The trial court found defendant guilty of counts I, II, V, and VI.
Defendant filed a pretrial motion to suppress the videotape of John Doe's children, arguing that by shrugging, he had not given the police permission to seize and view the videotape. At the hearing on the motion, only witnesses for the State testified, and no significant factual discrepancies emerged from their testimony. Neither attorney argued that the witnesses were incorrect in their recitation of the historical facts, although they disagreed on the inferences one should draw from those facts.
Eric Lindburg was a police officer for Aledo, Illinois. He testified that on October 10, 1998, at 4:13 p.m., he was dispatched to Wal-Mart in Aledo, where a man was reportedly videotaping employees entering and exiting the store. At Wal-Mart, Lindburg spoke with a store manager, who described a short, red-haired man in a small, white pickup truck. She remembered a portion of the license-plate number. She said the man had become nervous and left in a hurry when she noticed he was videotaping an employee. Lindburg testified he also spoke with the employee whom the man had videotaped, a 17-year-old female. The teenager never noticed the man, but the manager had "told her there was a guy videotaping her from the parking lot as she was walking in." No one suggested the man was armed or dangerous in any way.
Seeing no white pickup truck in the parking lot, Lindburg resumed his regular patrol. Over the radio, he requested other police officers to keep an eye out for the truck, because he wanted "to speak to the individual." About an hour later, he cruised by Wal-Mart again; this time the truck was in the parking lot, but no one was in the truck. Lindburg testified he ran the license plate and ascertained the truck belonged to defendant. He then went into Wal-Mart to ask the manager if she saw the man in the store. While talking with the manager, he glanced over his shoulder and saw the truck speeding out of the parking lot. Lindburg ran to his patrol car and radioed that the truck had just left the parking lot at a high speed and was going west on the highway. He pursued the truck in his patrol car but lost sight of it. He did not intend to write a citation because speeding in a parking lot was not illegal. He merely wanted to talk with defendant because his hasty departures from the parking lot were suspicious and Lindburg was concerned he might have been stalking the teenager.
Lindburg spotted the truck a mile down the highway at the four-way intersection in the center of Aledo. A Mercer County deputy sheriff, Sean Hast, had stopped the truck by angling his patrol car 10 feet in front of it. Both Lindburg and Hast had turned on the overhead emergency lights of their patrol cars. Lindburg testified: "[Defendant] had his hands out of the window[,] *** and [Hast] had him get up against the vehicle and [began] to pat him down." Hast "may have had his hand on his firearm in the holster yet or near it." Defendant appeared surprised and nervous. Lindburg told Hast, "['][N]o, he is not under arrest. I just need to speak with him.'" Lindburg then stated, "[Hast] said [']okay,['] and I believe he apologized to [defendant] and got in his vehicle and drove off."
After assuring him he was not under arrest, Lindburg "asked [defendant] if he would mind speaking with [him] around the corner[.] [I]f he wanted to pull his vehicle around[,] there [was] a parking spot." After he and Lindburg moved out of the intersection, Lindburg might have patted defendant down again, but he was uncertain. Defendant was "still shaking, a little nervous." Lindburg asked him why he had videotaped the Wal-Mart employee. Defendant asked if it was illegal to videotape a person in a parking lot. Lindburg said no but it looked "real suspicious." He asked defendant "if he had anything illegal in his [pickup] truck." When defendant said no, Lindburg "asked him if he would mind if [he] made sure." The prosecutor questioned Lindburg as follows:
"Q: [W]hat [were] his words[,] then[,] on the consent ***?
A: He just said he didn't mind if I searched it [(the truck)].
Q: I note you made a gesture there as you testified[.] [D]id he make any gesture as he answered you?
A: I believe he shrugged and said he didn't mind if I did."
As Lindburg searched the truck, defendant reached under the seat, pulled out some videocassette folders, and stuck them in his back pocket. Lindburg told him he "didn't want him to reach under the seat" again.
In the truck, Lindburg found marijuana and a pipe for smoking it. He handcuffed defendant, read him his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), and put him in the front seat of the patrol car. By then, Hast had returned and was assisting in the search. Under the seat, they found two videotapes. Defense counsel asked Lindburg the following:
"Q: At the location of the search, did you have any conversation with *** [d]efendant about the tapes?
A: Yes, I asked him if anything illegal [was on them], pornography or child pornography.
A: There were tapes of him and his girlfriend on there. There may be some pornography."
Lindburg testified he called Mercer County State's Attorney Baron Heintz on a cellular telephone and asked him, within earshot of defendant, if he could legally view the videotapes. Heintz told him he could if defendant consented. Lindburg then asked defendant--who was then sitting in the patrol car with his hands cuffed in front of him--"if he minded if [they] took a look at the tapes. *** That is when he gave the shrug." Defense counsel asked Lindburg:
"Q: And why were the videotapes seized at that point?
A: Because I asked [defendant] if he would mind if I took a look at the ...