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People v. Bartimo

January 15, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY W. BARTIMO, DEFENDANT-APPELLANT.



[6] Appeal from Circuit Court of Woodford County No. 02CF24 Honorable Charles M. Feeney, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Turner

[8]  In March 2002, the State charged defendant, Anthony W. Bartimo, with unlawful possession of a controlled substance, unlawful use of a weapon, and unlawful possession of cannabis. In July 2002, defendant filed a motion to suppress, which the trial court denied. In January 2003, the trial court found defendant guilty of unlawful use of a weapon and unlawful possession of cannabis. The court denied defendant's posttrial motion and sentenced him to 24 months' probation on each offense.

[9]  On appeal, defendant argues (1) the trial court erred in denying his motion to suppress, (2) he was wrongfully convicted of unlawful use of a weapon, and (3) he received ineffective assistance of counsel. We affirm.

[10]   I. BACKGROUND

[11]   In March 2002, the State charged defendant by information with (1) unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2002)), alleging he knowingly possessed less than 15 grams of a substance containing cocaine; (2) unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 2002)), alleging he knowingly possessed in a vehicle a 9-millimeter handgun; and (3) unlawful possession of cannabis (720 ILCS 550/4(c) (West 2002)), alleging he knowingly possessed more than 10 grams but less than 30 grams of a substance containing cannabis.

[12]   In July 2002, defendant filed a motion to suppress evidence, alleging he was illegally seized by an officer for an expired license plate when the plates were valid as evidenced by a temporary sticker. In August 2002, the State dismissed the unlawful-possession-of-a-substance-containing-cocaine charge. In September 2002, the trial court conducted a hearing on defendant's motion to suppress. Defendant testified he was driving his car on March 11, 2002, at about 11 p.m. He testified his license plates expired on November 30, 2001, but the "yellow 'T' sticker" extended them for 120 days. He received a new set of license plates a "few days prior to being stopped," and they were in the backseat of the car when the officer pulled him over. The State moved for a directed finding on defendant's motion, which the trial court denied.

[13]   The State called Woodford County deputy sheriff Shawn Trent, who testified he observed a black Audi on March 11, 2002, and he ran the registration plate on the vehicle. A dispatcher advised him the registration expired in November 2001. Prior to stopping the vehicle, Deputy Trent observed a November 2001 sticker on the back of the license plate. He then stopped the vehicle to investigate the status of the plates. After shining his spotlight on defendant's vehicle, he noticed a temporary registration sticker. At the time of the stop, he was unaware of how long a "T" sticker was valid. The trial court found Deputy Trent had a "good-faith basis" to stop the vehicle because of the expired plates and denied defendant's motion.

[14]   In January 2003, defendant's bench trial commenced. Deputy Trent testified to the expired license plate and his stop of defendant's vehicle. Upon approaching the vehicle, Trent noticed a "hard-cased shotgun or rifle case protruding from the trunk" and an unzipped soft-sided shotgun or rifle case on the floorboard of the backseat. Trent then asked defendant for identification and he presented a traffic citation in lieu of his license. Trent returned to his squad car and checked defendant's license.

[15]   Upon returning to defendant's car, Trent noticed defendant with his hand "behind the passenger seat," which he later removed. Deputy Trent then asked defendant if he had any weapons in the vehicle. Trent stated defendant appeared "nervous" and advised him that he had a rifle in the trunk. When asked if he had other firearms in his vehicle, defendant responded "No." When Deputy Trent asked for defendant's consent to search the vehicle, defendant "did not respond." Trent again asked defendant if he had any weapons in the vehicle. Appearing nervous, defendant reached toward "the center console passenger seat area like he was going to grab an object." Trent again asked him about any other weapons, and defendant stated "he had a pistol in the laundry basket on the passenger seat next to him." Trent then ordered defendant out of the car to "get him away from the pistol" and for officer safety. Trent began searching defendant, who "reached down towards his waistband consistent with producing a weapon," and Trent handcuffed him. A frisk of defendant for weapons turned up a "wooden dugout," a "one-hitter pipe," and a "[B]aggie of cannabis" in his pants pocket. Trent searched the car and found cannabis and an unloaded 9-millimeter pistol in a nylon holster and "an ammunition pouch in the front of the holster with a loaded magazine" in a laundry basket in the rear seat. Trent also found a rifle in a case protruding from the car's trunk area.

[16]   Defendant testified he uses his 9-millimeter handgun for target shooting, and he had targets and other similar items in his car when he was stopped. He stated he placed the handgun "all the way to the bottom of the [laundry] basket," and it was unloaded and in a closed holster. He testified he could not have accessed the gun from the driver's seat. When the officer returned to his car, defendant had his hand behind the passenger seat looking for his license plates. Defendant stated the holster did not completely cover the gun. He also admitted owning the marijuana on his person and in his car.

[17]   Following closing arguments, the trial court found defendant guilty of unlawful use of a weapon and unlawful possession of cannabis. In February 2003, defendant filed a posttrial motion for a new trial, alleging, inter alia, the State failed to prove him guilty of unlawful use of a weapon beyond a reasonable doubt and he received ineffective assistance of counsel. In March 2003, the trial court denied the motion. Thereafter, the court sentenced defendant to 24 months' probation on each offense along with various fines. This appeal followed.

[18]   II. ANALYSIS

[19]   A. Motion To Suppress

[20]   Defendant argues the trial court erred in denying his motion to suppress. We disagree.

[21]   1. Standard of Review and Burden of Proof

[22]   In reviewing a motion to suppress on appeal, mixed questions of law and fact are presented. People v. Gherna, 203 Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). A trial court's assessment of witness credibility and factual determinations will be reversed only if manifestly erroneous. People v. Anthony, 198 Ill. 2d 194, 200-01, 761 N.E.2d 1188, 1191 (2001). However, the ultimate determination of whether the evidence is suppressed is entitled to de novo review. See People v. Crane, 195 Ill. 2d 42, 51, 743 N.E.2d 555, 562 (2001).

[23]   On a motion to suppress evidence, the defendant has the burden of proving the search and seizure were unlawful (725 ILCS 5/114-12 (West 2002)). "However, once the defendant makes a prima facie showing of an illegal search and seizure, the burden shifts to the State to produce evidence justifying the intrusion." People v. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d 1011, 1018 (2000).

[24]   Defendant argues the trial court misapplied the evidentiary burden. We disagree. Defendant testified in support of his motion to suppress. After defense counsel indicated no further evidence would be presented, the State moved for a directed finding. The trial court denied the motion, and the State went forward with its evidence to establish the officer was justified in his intrusion. Defendant's claim that the trial court incorrectly understood the burden has no support in the record. The court commented on defendant's burden in the context of his motion to suppress evidence and consistent with the burden required of the movant in that instance. Further, defendant's claim that his motion for a directed verdict at the close of his presentation of evidence may have been successful if the court had understood the burden is meritless because it was the State that moved for a directed finding. Thus, we find no error.

[25]   2. The Traffic Stop

[26]   The fourth amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. Similarly, the Illinois Constitution affords citizens with "the right to be secure in their persons, houses, papers[,] and other possessions against unreasonable searches, [and] seizures." Ill. Const. 1970, art. I, §6. Our supreme court has interpreted the search and seizure clause of section 6 in a manner consistent with the United States Supreme Court's fourth amendment jurisprudence. People v. Gonzalez, 204 Ill. 2d 220, 224, 789 N.E.2d 260, 264 (2003).

[27]   When a police officer observes a driver commit a traffic violation, the officer is justified in briefly detaining the driver to investigate the violation. People v. Sorenson, 196 Ill. 2d 425, 433, 752 N.E.2d 1078, 1084 (2001). A temporary detention of an individual during a vehicle stop constitutes a seizure of his person within the fourth amendment, even if the stop is brief and for a limited purpose. Whren v. United States, 517 U.S. 806, 809-10, 135 L. Ed. 2d 89, 95, 116 S. Ct. 1769, 1772 (1996). "An automobile stop is thus subject to the constitutional imperative that it not be 'unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 517 U.S. at 810, 145 L. Ed. 2d at 95, 116 S. Ct. at 1772.

[28]   "Because a traffic stop is more analogous to a Terry investigative stop (see Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) than to a formal arrest, the reasonableness of a traffic stop is analyzed under Terry principles. [Citation.] A Terry analysis involves a dual inquiry: '(1) "whether the officer's action was justified at its inception," and (2) "whether it was reasonably related in scope to the circumstances which justified the interference in the first place."' Gonzalez, 204 Ill. 2d at 228, [789 N.E.2d at 266,] quoting Terry, 392 U.S. at 19-20, 20 L. Ed. 2d at 905, 88 S. Ct. at 1879." People v. Bunch, 207 Ill. 2d 7, 13-14, 796 N.E.2d 1024, 1029 (2003).

[29]   In the case sub judice, defendant acknowledges Deputy Trent had probable cause to initiate the traffic stop. Deputy Trent received the dispatcher's report that the license plates on defendant's car were expired. According to section 3-413(f) of the Illinois Vehicle Code, "[n]o person shall operate a vehicle *** upon which is displayed an Illinois registration plate, plates[,] or registration stickers after the termination of the registration period for which issued or after the expiration date." 625 ILCS 5/3-413(f) (West 2002). Thus, the initial stop of defendant's car was justified.

[30]   3. Defendant's Arrest

[31]   Under the second prong of the Terry analysis, the length of the detention and the manner in which it was carried out are considered. Bunch, 207 Ill. 2d at 14, 796 N.E.2d at 1029. The United States Supreme Court has stated "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238, 103 S. Ct. 1319, 1325 (1983) (plurality opinion). Upon initiating a minor traffic stop, a police officer may briefly detain the driver to request his driver's license and determine its validity and, under certain circumstances, conduct a speedy warrant check. Ortiz, 317 Ill. App. 3d at 220, 738 N.E.2d at 1018. Once a check of a driver's license and any warrant information is completed, "if no further suspicion is aroused, the traffic stop must cease and the individual should no longer be detained." Ortiz, 317 Ill. App. 3d at 220, 738 N.E.2d at 1018. The police officer should then issue a warning ticket or citation and allow the driver to continue on his way. See People v. Koutsakis, 272 Ill. App. 3d 159, 164, 649 N.E.2d 605, 609 (1995).

[32]   In this case, Deputy Trent testified he stopped defendant's car for the expired license plates and did not notice the temporary registration sticker until he shined his spotlight on the car. Defendant argues Deputy Trent's reason for stopping him then no longer existed and further intrusion was unnecessary and unwarranted. We find the circumstances ...


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