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People v. West

Court of Appeals of Illinois, Third District

March 23, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOHN F. WEST, Defendant-Appellant.

         Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Appeal No. 3-13-0802 Circuit No. 13-CF-78 Honorable Ted J. Hamer, Judge, Presiding.

          SCHMIDT JUSTICE delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice McDade dissented, with opinion.

          OPINION

          SCHMIDT JUSTICE

         ¶ 1 The State charged defendant, John F. West, with cannabis trafficking (720 ILCS 550/5.1(a) (West 2012)), unlawful possession with intent to deliver cannabis (720 ILCS 550/5(g) (West 2012)), and unlawful possession of cannabis (720 ILCS 550/4(g) (West 2012)). Before trial, defendant filed a motion to suppress evidence. He alleged, inter alia, that the traffic stop, which led to police finding the evidence used against him, was unreasonably prolonged and his subsequent consent to search was involuntary. The trial court denied defendant's motion and found him guilty of all charges. The trial court sentenced defendant to 12 years' imprisonment and imposed a $3000 drug assessment and an $87, 000 street-value fine. Defendant appeals the trial court's ruling on his motion to suppress and the amount of the street-value fine. He further argues he is entitled to credit for time spent in presentence custody against his fines. We affirm the trial court's ruling on defendant's motion to suppress and find that defendant forfeited his street-value fine argument. We remand this case to the trial court, however, to amend defendant's sentencing order to account for his credit earned during the time he spent in presentence custody.

         ¶ 2 FACTS

         ¶ 3 Illinois State Trooper Jarrod Johnson stopped defendant for speeding (625 ILCS 5/11- 601(b) (West 2012)) and not wearing a seat belt (625 ILCS 5/12-603.1(a) (West 2012)) while he was traveling eastbound on Interstate 80. Johnson recorded the traffic stop with the video system in his squad car. He noticed defendant had an Arizona driver's license and asked numerous questions unrelated to the traffic offenses during the encounter. Defendant told Johnson he was driving from Arizona to Flint, Michigan, to visit friends. He said he planned to stay until the end of the week and indicated that he did not know his friends' address in Michigan. Johnson later testified that illegal narcotics suppliers sometimes hold back the precise drop-off location to prevent drivers from cooperating with police in the event they are stopped before delivering the drugs.

         ¶ 4 Johnson saw that defendant had a suitcase in the backseat, a mechanic's shirt hanging inside the car, and a camera in the rear window. When Johnson asked defendant about the shirt, defendant said he was a mechanic, that business was not going well, and that the trip had already cost him $600. Johnson repeated some of his questions about defendant's travel plans, seeking further clarification. Defendant stated he planned to stay in Flint for three days, leaving on Saturday. They were talking on a Thursday evening at approximately 5:37 p.m.

         ¶ 5 Johnson asked defendant to sit in his squad car with him while he checked his documents and wrote him a warning ticket. As they walked back to the squad car, Johnson requested a canine officer. After the dispatcher said there were no canine officers available, he requested a backup officer. Johnson later testified that he was suspicious of defendant's inconsistent statements about his travel plans, the fact that his luggage was in the backseat of his vehicle instead of in the trunk, and the mechanic's shirt. He said narcotics smugglers sometimes keep luggage in the backseat of their cars so they can carry contraband in the trunk and hang shirts inside their cars to blend in with average motorists. Johnson further stated he found it odd that defendant said his business was not going well but he was taking a costly trip to visit friends.

         ¶ 6 While defendant and Johnson were seated in the front seat of the squad car, defendant asked Johnson how long he had been a state trooper and told him about one of his relatives in law enforcement. He also asked Johnson about the local ethanol plant. During this conversation, Johnson checked the validity of defendant's documents and wrote him a warning ticket. Defendant volunteered that he knew from crossing the border into Mexico to visit his deported ex-wife that there was another John West with an arrest warrant. Johnson confirmed that defendant was not the John West described in the arrest warrant. He later testified that he became more suspicious of defendant at this point.

         ¶ 7 Johnson thought defendant might have been confused. He asked defendant, again, about his travel plans and why he did not fly instead. Johnson later testified that he was asking the travel-related questions to determine if driving to Flint from Arizona made financial sense. While they were still in the patrol car, Johnson asked about the camera in the rear window of defendant's vehicle. Defendant told him the camera belonged to a friend who must have inadvertently left it in the car. He assured Johnson that the camera was not hooked up to anything in the car or operating.

         ¶ 8 Approximately 14 minutes after Johnson initiated the stop, he issued defendant a written warning, returned his documents, and told defendant he was "free to go." Defendant exited the squad car. Johnson exited the squad car in quick succession. Roughly 15 to 20 seconds later, Johnson asked defendant if he could ask him a few more questions. Defendant agreed, and Johnson told him to stand by the passenger side of their vehicles, away from passing traffic where he was standing when their conversation began. Defendant responded to Johnson's renewed questions about the camera, his travel plans, and his destination. Johnson also asked defendant whether there was contraband in the vehicle. Defendant said there was none.

         ¶ 9 Approximately three minutes after Johnson told defendant he was free to leave, he asked defendant for his consent to search the vehicle. Defendant said "yes" and waved his arm toward his vehicle. At this time, a backup officer arrived. Johnson explained the situation to the officer, and defendant confirmed his consent to search. Johnson directed defendant to stand with the backup officer. Several minutes into the search, Johnson noticed duct tape on an interior seam of the front passenger door. Defendant said it was there to keep water out of the vehicle. Johnson read defendant his Miranda rights, placed him in the backseat of his squad car, and continued searching the vehicle. After locating bundles of a substance he suspected was cannabis inside the vehicle door, Johnson handcuffed defendant.

         ¶ 10 In total, Johnson located 12, 204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant's vehicle doors. Johnson used a field test to positively identify one of the bundles as cannabis. Eight bundles were later tested by the crime laboratory and confirmed to be cannabis. The remaining eight bundles were not tested.

         ¶ 11 The State brought all three charges against defendant. Defendant filed a motion to suppress evidence. At the hearing on defendant's motion, the trial court viewed Johnson's video of the traffic stop, and Johnson testified to the events leading to defendant's arrest. Johnson stated that he did not delay the traffic stop-including writing defendant's warning ticket and verifying his documentation-to engage defendant in conversation. Defense counsel argued the stop was impermissibly prolonged by "drug interdiction" questions unrelated to the purpose of the stop, that Johnson did not have reasonable, articulable suspicion to ask those questions, and that defendant's consent to search his car was merely acquiescence to Johnson's show of authority. Ultimately, the trial court denied defendant's motion. The court found that the traffic stop was not unreasonably prolonged; it ended when defendant was told he was free to leave, and the ensuing encounter was consensual, not coerced.

         ¶ 12 Defendant elected to proceed with a bench trial. The parties stipulated that, when asked by Johnson about the presence of duct tape in the vehicle, defendant claimed it was there to deflect water; Johnson found 16 duct-taped bundles inside defendant's vehicle doors; Johnson positively identified the substance in one of the bundles as cannabis in a field test; a crime laboratory confirmed that eight of the bundles (5468 grams) contained cannabis; the laboratory did not analyze the contents in the remaining eight bundles (an additional 6736 grams); defendant had a glass pipe in his jacket, which the crime lab later confirmed contained methamphetamine; and defendant made several phone calls from jail indicating he knowingly transported the cannabis at issue for other people. Admitted at trial were the crime lab reports, recordings of defendant's phone calls in jail, and the video recording of the traffic stop. Defense counsel objected to the admission of the phone recordings, the contraband, and the portion of the traffic stop video after Johnson told defendant he was free to leave. The trial court overruled defendant's objections and found him guilty on all three counts.

         ¶ 13 Defendant moved for a new trial, challenging the trial court's denial of his motion to suppress evidence and the admission of the contraband and phone recordings into evidence. The trial court denied defendant's motion before sentencing. Defendant's presentence investigation report disclosed that he had no history of criminal activity and no prior charges or convictions. The court agreed with the recommendations of the prosecutor and defense attorney and imposed the minimum sentence on defendant allowed, 12 years' imprisonment-reduced by 221 days spent in presentence custody. The trial court also imposed on defendant a $3000 drug assessment and an $87, 000 street-value fine for the cannabis.

         ¶ 14 Defendant appeals.

         ¶ 15 ANALYSIS

         ¶ 16 Defendant argues (1) the trial court improperly denied his motion to suppress evidence, (2) his street value fine should be reduced, and (3) his sentencing order should be amended. For the reasons that follow, we reject defendant's first two arguments but remand this matter to the trial court to amend defendant's sentencing order.

         ¶ 17 I. Defendant's Motion to Suppress

         ¶ 18 First, defendant argues that the trial court erred in denying his motion to suppress evidence. Specifically, defendant claims the traffic stop was unreasonably prolonged due to numerous "drug interdiction" questions and that his subsequent consent to search was involuntary. He emphasizes that there was no reasonable suspicion or probable cause for his continued detention, resulting in his unlawful seizure before he gave consent to search his car.

         ¶ 19 We review a trial court's ruling on a motion to suppress evidence for clear error, giving due weight to any inferences drawn from those facts by the fact finder. People v. Harris, 228 Ill.2d 222, 230 (2008); People v. Cosby, 231 Ill.2d 262, 271 (2008). The ultimate decision of whether the evidence should be suppressed, however, we review de novo. Id. The trial court did not err in denying defendant's motion to suppress evidence.

         ¶ 20 From the outset, we note that we need not address whether Johnson had reasonable, articulable suspicion to detain the defendant. Defendant does not argue Johnson did not have probable cause to initiate the traffic stop. Johnson ultimately decided he did not have reasonable, articulable suspicion sufficient to prolong the traffic stop and ended it. Armed with the knowledge that he was free to leave, defendant twice consented to the trooper's request for permission to search the car. As such, contrary to the defendant's claim, Rodriguez is inapposite. Rodriguez v. United States, 575 U.S.,, 135 S.Ct. 1609, 1613 (2015). The defendant in Rodriguez was held after a traffic stop concluded without reasonable articulable suspicion in spite of the fact that he refused to consent to a search. Id. Reasonable, articulable suspicion has no place in an analysis of this case.

         ¶ 21 Defendant presented no evidence at trial that the traffic stop was prolonged. Johnson's testimony and the video footage of the traffic stop established the opposite. He did not cease working on the traffic stop while engaging defendant in conversation. The defendant points to nothing in the record suggesting otherwise. Even assuming, for sake of argument, the traffic stop was unreasonably prolonged by Johnson's questions, the defendant's point is irrelevant.

         ¶ 22 The traffic stop ended before defendant consented to a search of his vehicle. The State need only prove defendant's consent to search was voluntary by a preponderance of the evidence. People v. Casazza, 144 Ill.2d 414, 417 (1991); People v. Branham, 137 Ill.App.3d 896, 900 (1985). The trial court's determination of the voluntariness of consent to search will be accepted on review unless plainly unreasonable. People v. DeMorrow, 59 Ill.2d 352, 358 (1974).

         ¶ 23 Johnson concluded the traffic stop by returning documents to the defendant, along with a written warning, and telling him he was free to leave. He told defendant to have a "nice trip, " they shook hands, and they remarked that it was nice meeting each other. Defendant exited Johnson's squad car with his paperwork and began walking back to his car. Before defendant got back into his car, Johnson asked defendant if he could talk with him further. Defendant agreed to do so. Thereafter, he voluntarily remained outside of his car and engaged Johnson in conversation.

         ¶ 24 "Generally, a [valid] traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved." People v. Leach, 2011 IL App (4th) 100542, ¶ 12 (citing Cosby, 231 Ill.2d at 276). There is no seizure if the motorist understands that he or she is free to leave and voluntarily prolongs the contact. See Florida v. Bostick, 501 U.S. 429, 434 (1991); Cosby, 231 Ill.2d at 283-85.

         ¶ 25 The evidence at issue was discovered during a consensual encounter preceded by a traffic stop. Defendant was unequivocally told he was free to leave. He remained on the side of the road and ...


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