Appeal from Circuit Court of Livingston County Nos. 10CF249 10TR4336 10TR4337 Honorable Jennifer H. Bauknecht, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
Carla Bender 4th District Appellate Court, IL
JUSTICE POPE delivered the judgment of the court, with opinion.
Justices Appleton and Holder White concurred in the judgment and opinion.
¶ 1 In April 2011, a jury convicted defendant, Stephen G. Wachholtz, of driving without a rear registration light (No. 10-TR-4337) (625 ILCS 5/12-201(c) (West 2010)), driving while his license was revoked (No. 10-TR-4336) (625 ILCS 5/6-303(a) (West 2010)), and unlawful possession of a controlled substance (less than five grams of a substance containing methamphetamine) (No. 10-CF-249) (720 ILCS 646/60(a) (West 2010)). In June 2011, the trial court sentenced him to 24 months' probation with 180 days in jail.
¶ 2 Defendant appeals, arguing the trial court erred in denying his motion to suppress the arresting officer's testimony relating to the stop. We affirm.
¶ 4 On July 13, 2010, Illinois State Police Trooper Scott Ahrens stopped defendant's vehicle for not having a working rear registration (license plate) light. During the stop, Ahrens discovered defendant's driver's license had been revoked and arrested defendant. Ahrens issued defendant citations for the registration-light violation and for driving while his license was revoked. During an inventory search of the vehicle, Ahrens discovered a glass pipe containing burnt residue. The residue was later tested and found to contain methamphetamine. Ahrens' squad car had an operational digital video disc (DVD) recorder, which made a video and audio recording of the traffic stop and arrest.
¶ 5 Defendant failed to appear for his traffic cases on July 29, 2010. On August 3, 2010, the trial court issued a warrant for his arrest.
¶ 6 On September 30, 2010, the State charged defendant with unlawful possession of a controlled substance (less than 15 grams of a substance containing methamphetamine) (720 ILCS 570/402(c) (West 2010)). Thereafter, a warrant issued for defendant's arrest. Defendant was arrested on both warrants in New Mexico on October 19, 2010 (more than 90 days after the traffic stop and seizure of evidence from the vehicle). He was arraigned on November 23, 2010, following a preliminary hearing.
¶ 7 Following the State's December 14, 2010, request to the Illinois State Police for the recording of the traffic stop, the State informed defendant the police had recycled the DVD back into use on November 1, 2010.
¶ 8 On December 15, 2010, defendant filed a motion to suppress Ahrens' testimony relating to the stop, alleging his right of due process was violated. Defendant argued the police violated the recording retention requirement prescribed by section 14-3(h-15) of the Criminal Code of 1961 (Code) (720 ILCS 5/14-3(h-15) (West 2010)) when they destroyed the recording of his traffic stop and arrest. According to defendant's motion, pursuant to the statute, recordings made as part of an arrest may only be destroyed after a final disposition in the case and upon an order from the court.
¶ 9 On December 21, 2010, the State amended the charges to allege unlawful possession of less than five grams of methamphetamine (720 ILCS 646/60(a) (West 2010)).
¶ 10 During the February 10, 2011, hearing on defendant's motion to suppress, Ahrens testified he stopped defendant on July 13, 2010, for not having a rear registration light. Ahrens observed the registration light on defendant's vehicle was not functioning and the rear license plate was "flapping up and down" because it was not securely attached. Ahrens stated he had a functioning video recorder in his squad car, which recorded the stop. Ahrens also testified he had a microphone on his uniform and statements he and defendant made were captured by his squad car's recording device. After he arrested defendant for driving while his license was revoked, Ahrens made an inventory search of defendant's vehicle and discovered a small glass pipe containing burnt residue. Ahrens testified the stop, arrest, and search would have been captured on the video.
¶ 11 With regard to why the recording was destroyed, Ahrens testified it would have been reviewed by a supervisor, kept for 90 days, and then recycled. Specifically, Ahrens testified as follows:
"The supervisor reviews it. Upon their discretion, it's placed back onto the shelf of the DVD storage room per [Illinois State Police] policy. It's recycled after 90 days, placed back into circulation. If there was something of evidentiary value, it would have been placed in the evidence vault and kept and retained."
¶ 12 Defendant argued section 14-3(h-15) of the Code was specifically enacted to prevent police from destroying recordings of traffic stops especially in cases where an arrest is made. According to defendant, where an arrest is made, the plain language of the statute mandates the recording be kept until the case is over. The State argued defendant was not entitled to suppression.
¶ 13 The trial court denied defendant's motion to suppress and found "the legislature did not intend that every time somebody's arrested for driving on a revoked or suspended license that the State Police are to keep the recording. That's not my understanding of the statute." Further, the court found:
"The tape is not evidence like the, like the alleged pipe that was found. The tape is a recording; and it could be used for evidentiary purposes; and if it's deemed evidence, then, and I don't know who deems it evidence, but somebody gets to deem it evidence; and then that person must save it until court ordered; but it's not really clear when a tape is deemed evidence and who has the authority to deem it evidence.
In any event, the remedy is not the suppression of everything because you still have the officer's independent knowledge of the stop, what he observed, what the conversations were, what he found. So I don't think that even if the tape was supposed to be saved according to the statute, which I'm not convinced that it was, but even if it was, I don't think that the officer is prohibited from testifying about what he personally observed from the vehicle, of the driver during the inventory search.
So I don't think the remedy for a violation[,] if there is a violation of the statute[,] would be a suppression of everything that's found. So based upon that, the motion to suppress is denied."
That same day, the court granted the State's motion to consolidate defendant's two traffic cases with his criminal case.
¶ 14 On February 25, 2011, defendant filed a motion to reconsider, which the trial court denied. In denying that motion, the court stated the following:
"The [d]efendant will be given an opportunity to present evidence contrary to what [Ahrens] testifies to, and it would be for the jury to decide who's telling the truth and what factually happened. So it's not a situation where the defense is not being given an opportunity to present its case. *** I don't know that the remedy is to just deny any testimony that would be offered by the officer."
¶ 15 During defendant's April 25, 2011, trial, Ahrens testified he observed defendant's vehicle traveling southbound at approximately 1:22 a.m. on July 13, 2010, on Interstate 55 without an operational rear registration light. Ahrens initiated a traffic stop of the vehicle. When Ahrens asked defendant for his driver's license, defendant gave Ahrens a Missouri identification card. Ahrens ran his name and discovered defendant's license had been revoked in Missouri. As a result, Ahrens arrested defendant and placed him in the squad car. The State introduced into evidence, without objection, a certified copy of defendant's Missouri driving abstract, which showed defendant's license was revoked the date of his arrest.
¶ 16 Ahrens testified he then conducted an inventory search of defendant's vehicle prior to having it towed. During that search, Ahrens lifted up the armrest on the driver's side door and discovered an ashtray and what he described as a "little flap or little leather like pouch" containing a glass pipe. Based on his training and experience, Ahrens recognized the pipe as drug paraphernalia used for smoking crack or methamphetamine. The pipe had "some sort of like white and black burnt residue inside of it." Defendant told Ahrens it was not his pipe and he did not know it was in the car. Defendant also told Ahrens he "didn't even know that flap was there." However, Ahrens testified he never told defendant about the flap and defendant volunteered that detail himself. Although defendant told Ahrens he had just purchased the vehicle, it was already registered to defendant. Ahrens also noted there were regular plates on the vehicle and not temporary ones, which indicated to Ahrens defendant purchased the vehicle "some time" ago.
¶ 17 During cross-examination, the following colloquy took place between defendant's trial counsel and Ahrens:
"Q. [MR. MORGAN (defense attorney):] Now on this day when you are following [defendant] and it's early in the morning, is your car equipped ...