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The People of the State of Illinois v. Jose Canizalez-Cardena

November 28, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
JOSE CANIZALEZ-CARDENA,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 10CF1664 Honorable Heidi N. Ladd, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

Carla Bender 4th District Appellate Court, IL

JUSTICE COOK delivered the judgment of the court, with opinion.

Presiding Justice Turner and Justice Pope concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Jose Canizalez-Cardena (hereinafter Cardena) was charged with unlawful possession with intent to deliver methamphetamine, a Class X felony, in that he knowingly and unlawfully possessed with intent to deliver 900 grams or more of a substance containing methamphetamine. 720 ILCS 646/55(a)(1), (2)(F) (West 2010). Cardena was convicted after a stipulated bench trial and sentenced to 25 years in prison on July 25, 2011. His timely motion to reconsider sentence was denied August 10, 2011, and notice of appeal was timely filed August 12, 2011. The appeal argues three issues: that the evidence was insufficient to convict, that a motion to suppress evidence was improperly denied, and that the trial court considered improper factors in sentencing. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Illinois State Police trooper Chris Owen testified at a hearing on a motion to suppress. On September 29, 2011, at about 5 p.m., Owen was sitting near mile post 254 on I-57. With him was his drug-detecting dog, Xocko. Owen had been told that a 2002 silver Toyota Camry would possibly be transporting methamphetamine. Owen saw a car fitting that description in the left southbound lane. Owen clocked the car at 71 miles per hour, which was in excess of the 65 mile-per-hour posted speed limit. As the car approached Owen, it made an "abrupt lane change" into the right lane, following a gray passenger car too closely. The Toyota was proceeding slower than the speed limit at that point.

¶ 4 Owen initiated a traffic stop and approached the car on the passenger side. The driver was Leonel Galaviz-Galaviz (hereinafter Galaviz). Defendant Cardena was the only passenger. Galaviz provided a Mexican driver's license. Galaviz's hands trembled and his carotid artery pulsed, and his heart could be seen pounding. Cardena also provided a Mexican license with trembling hands. His carotid artery pulsed and he stared straight ahead. Owen stated it is not unusual for people to be nervous, but Galaviz was overly so, and Cardena was equally nervous. Owen could smell air fresheners and saw several in the car, which in his experience indicated the possibility of drugs.

¶ 5 Galaviz responded "for the most part" in English to questions. He said he came from Los Angeles. He said he was traveling to "Illinois," and could not say where, but that he was there for construction and demolition work as there was no work in Los Angeles. The insurance for the car was in Galaviz's name, and recently purchased, but the car did not belong to him. As Owen's suspicions were increasing, he went to talk to Cardena in the passenger seat while continuing to fill out the warning tickets. He asked Cardena in Spanish "where" and "work," but got no response. Owen found Cardena to be "exhibiting numerous non-verbal indicators of excessive nervousness and stress," and he asked Cardena in Spanish to get out of the Toyota and stand in the ditch. There was a phone in Cardena's pocket that rang constantly.

¶ 6 At this point, about seven minutes into the stop, Owen opened the rear of the patrol car to release Xocko, a dog trained to detect marijuana, cocaine, methamphetamine, and heroin. As Xocko began to move around the car, Cardena turned his body and appeared to be praying. At the front driver's side door, Xocko indicated by his body language that he detected the odor of narcotics. Xocko then hopped into the car through the open window, and alerted to an area in the rear seat cushion. Owen called for backup. He requested and received verbal and written consent, a Spanish form, from Galaviz to search the interior of the car. Owen found a hidden compartment between the rear tires directly below the front of the trunk. He said that Toyota Camrys commonly have this compartment. He drilled a hole and used a fiber-optic scope to see green cellophane bundles. The car was towed to State Police headquarters. There, Owen found the access plate inside the driver's side rear wheel well. The compartment contained 2,236.1 grams of methamphetamine.

¶ 7 The parties stipulated that Owen would testify consistently with his testimony at the hearing on the motion to suppress. He would be qualified as an expert in narcotics trafficking and interdiction, would testify that 2,236.1 grams of methamphetamine is a quantity indicative of an intent to deliver, and that multiple cell phones, two of which were in Cardena's possession, indicated drug sales. He would testify that the street value of the drugs was $628,764.

¶ 8 The parties stipulated to post-arrest statements made by Galaviz. Galaviz stated he could not find a job in Los Angeles and a friend, Jose Valle, offered him $4,000 to drive a car from Los Angeles to Chicago, and deliver it to a man unknown to Galaviz. Galaviz believed the car belonged to Valle's brother, Francisco. Galaviz never communicated with the recipient of the car, known to him only as "the Cuban." When Cardena and Galaviz arrived at the instructed location, they waited three hours. Jose Valle then called to tell them the Cuban was there. They followed the Cuban for about an hour and a half. Trooper Owen believed Galaviz's story to be implausible as Galaviz was off-route from where he said he was going and could not specify where in Illinois he was coming from. Galaviz and Cardena had known each other for about six months, having met when working construction. Galaviz stated that he and defendant shared the driving duties as they drove across the country. Galaviz did not know Cardena, Jose Valle, or Francisco Valle to be involved in drug trafficking. Galaviz did not know methamphetamine was in the car.

ΒΆ 9 Further investigation revealed that Cardena was actually Bernabe Galaviz-German, and had previously been deported. Registered letters to the owners of the Toyota, sent to addresses in Utah, were returned unclaimed. The parties stipulated ...


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