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People v. Varnauskas

Court of Appeals of Illinois, Third District

July 25, 2018

STEVEN J. VARNAUSKAS, Defendant-Appellant.

          Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 14-CF-334 Honorable Terence M. Patton, Judge, presiding.

          PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Schmidt concurred in the judgment and opinion. Justice McDade dissented, with opinion.



         ¶ 1 Following a jury trial, defendant, Steven J. Varnauskas, was convicted of two counts of controlled substance trafficking (720 ILCS 570/401.1(a) (West 2014)) and sentenced to two concurrent 40-year terms of imprisonment. On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence. We affirm.

         ¶ 2 FACTS

         ¶ 3 On November 14, 2014, at 11 p.m., Illinois State Police Trooper Sean Veryzer was in his squad car in the center median of Interstate 80 (I-80) when defendant's vehicle passed him traveling eastbound. Veryzer noticed that defendant's rear license plate was obscured by an empty bicycle rack attached to the car. Based on the fact that the license place was obscured by the bicycle rack, Veryzer executed a traffic stop of defendant's vehicle for a suspected violation of section 3-413(b) of the Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)). At the time, section 3-413(b) provided:

"Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than 5 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate. *** Registration stickers issued as evidence of renewed annual registration shall be attached to registration plates as required by the Secretary of State, and be clearly visible at all times." (Emphasis added.) Id.

         ¶ 4 During the traffic stop, Veryzer's canine partner (a drug detection dog) gave a positive alert for the presence of drugs in defendant's vehicle. Based on the dog's alert, Veryzer and another police trooper searched defendant's vehicle on the side of the road. Due to the weather being below freezing at 20 degrees Fahrenheit and due to safety issues regarding oncoming traffic and low visibility because it was dark outside, the troopers decided to relocate defendant's vehicle to a nearby police station in order to continue the search. At the police station, Veryzer located two kilograms of suspected heroin and a kilogram of suspected cocaine wrapped in black material, in a void area of defendant's vehicle located by the engine and below the car's windshield. Preliminary field tests of the suspected drugs tested positive for heroin and cocaine. Defendant was arrested and charged with two counts of controlled substance trafficking (720 ILCS 570/ 401.1(a) (West 2014)), possession with the intent to deliver heroin (id. § 401(a)(1)(D)), possession with the intent to deliver cocaine (id. § 401(a)(2)(D)), unlawful possession of a controlled substance (heroin) (id. § 402(a)(1)(D)), and unlawful possession of a controlled substance (cocaine) (id. § 402(a)(2)(D)).

         ¶ 5 Prior to trial, defendant filed a motion to suppress the evidence found during the search of his vehicle, arguing the traffic stop was initiated without probable cause or reasonable suspicion because the bicycle rack was not a violation of section 3-413(b) of the Vehicle Code because it was not attached to the license plate. In support of his motion to suppress, defendant cited People v. Gaytan, 2013 IL App (4th) 120217, ¶¶ 44-45, in which the Fourth District Appellate Court held that a trailer ball hitch on a vehicle did not violate the version of section 3-413(b) of the Vehicle Code in effect at that time, which required license plates to be "free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers" (625 ILCS 5/3-413(b) (West 2010)). The Gaytan court reasoned that the trailer ball hitch did not violate section 3-413(b) of the Vehicle Code because the trailer ball hitch was not attached to the license plate and the example violations provided by the statute (license plate covers) were items attached to the license plate. Id. ¶ 44.

         ¶ 6 In this case, on March 26, 2015, the trial court denied defendant's motion to suppress, noting that the Fourth District's decision in Gaytan was pending an appeal in the Illinois Supreme Court; although the appellate court in Gaytan held that the version of section 3-413(b) applicable in that case only encompassed obstructions attached to the license plate itself, the statute had since been changed to remove the language referencing license plate covers; and the bicycle rack in this case was a distinguishable obstruction from the ball hitch obstruction in Gaytan because the ball hitch only slightly obstructed the license plate from certain angles, whereas the bicycle rack straps in this case went down vertically over the license plate to completely cover portions of the license plate.

         ¶ 7 On May 25, 2015, the trial court noted that the Illinois Supreme Court had issued its ruling in Gaytan (People v. Gaytan, 2015 IL 116223) and asked whether defendant's attorney needed additional time to review the Gaytan decision to decide whether the decision impacted defendant's earlier motion to suppress. The defendant's attorney noted that although the Illinois Supreme Court indicated the applicable version of section 3-413(b) could be read as only encompassing obstructions physically attached to the license plate, the Illinois Supreme Court also noted section 3-413(b) was ambiguous so that the officers in that case had an objectively reasonable belief that the trailer hitch violated section 3-413(b). The defendant's attorney indicated that Gaytan, therefore, was not supportive of defendant's motion to suppress.

         ¶ 8 On June 4, 2015, defendant's jury trial began. Veryzer testified that he executed a traffic stop of defendant's vehicle on November 14, 2014, after he observed that defendant's rear license plate was obstructed and that only two digits of the license plate could be read. Photographs entered into evidence showed that defendant's license plate was obstructed by the straps of an empty bicycle rack. A video of the traffic stop entered into evidence showed that straps of the bicycle rack remained secured over the license plate, did not move as the car traveled on the highway, and obscured at least two digits of the license plate from every angle.

         ¶ 9 Upon stopping defendant's vehicle, Veryzer obtained defendant's passport because defendant did not have his driver's license with him. Veryzer also obtained a rental agreement for the vehicle. Defendant's name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later, on November 16, 2014. Veryzer asked defendant to sit in the front passenger seat of his squad car so that Veryzer could speak with defendant and determine if defendant was authorized to drive the vehicle. At the same time, Veryzer checked for defendant's driver's license information via his telecommunications system. Veryzer received information that defendant had a valid driver's license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, Daniel Melendez, in Los Angeles, California. Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California. Defendant told Veryzer that there was no bicycle on the bicycle rack because he had sold it in Colorado. Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant's vehicle.

         ¶ 10 Veryzer testified regarding the procedure for walking the canine around a vehicle, which Veryzer had performed on defendant's vehicle. Veryzer indicated that he attaches a six-foot lead to one of the canine's two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. Veryzer would then give the canine the command to "seek, find dope," which is the canine's trained command to look for odors of narcotics that he was trained to alert on-cocaine, heroin, methamphetamines, crack cocaine, and cannabis. Veryzer would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. Veryzer testified that on the second rotation of walking his canine partner around defendant's vehicle, his canine partner came to a sudden stop at the trunk area of defendant's vehicle. Veryzer described the canine alerting to having found narcotics as when the canine has "slowed his process, snapped his head and body back to the left, and began taking short, quick breaths." After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.

         ¶ 11 After his canine positively alerted to the presence of drugs in defendant's vehicle, Veryzer then informed defendant that the canine had alerted on his vehicle and a probable cause search would be conducted. For approximately 20 minutes, Veryzer and Johnson searched defendant's vehicle. Veryzer testified that he and Trooper Johnson conducted a cursory search of defendant's vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the trunk of defendant's vehicle, the interior, under the seats, under the dashboard, and inside the doors by Veryzer sticking a wedge into the doors to be able to see into the doors.

         ¶ 12 The troopers then decided to relocate the search to a location where there would be more light to better see into various areas of the vehicle and where it would be safer and warmer because they could not see due to the darkness. Veryzer also indicated that it was dangerous on the side of the road and the temperature was about 20 degrees outside. They relocated defendant's vehicle to the Geneseo Police Department and, after searching the vehicle for 10 or 15 minutes, they found the drugs under the hood in the engine compartment in an area covered by a black piece of metal or plastic.

         ¶ 13 During the search of the vehicle, receipts for fast food, gas, and a hotel room were found. The rental agreement and receipts showed that the vehicle was rented on November 9, 2014, at 7:59 p.m. at the Los Angeles airport and stops were made in Los Angeles, at 6:32 a.m. on November 12, 2014; in Las Vegas, Nevada, on November 12, 2014; in St. George, Utah, at 6:38 a.m. on November 13, 2014; overnight at a hotel located in the middle of Colorado (Frisco, Colorado); in Frisco, Colorado, at approximately 7 a.m. on November 14, 2014; in the northeast part of Colorado (Atwood, Colorado) on November 14, 2014; in Elm Creek, Nebraska, at 2:21 p.m. on November 14, 2014; in Shelby, Iowa, on November 14, 2014; and in Walcott, Iowa, at 9:51 p.m. on November 14, 2014. All purchases were made in cash. Defendant was stopped by Veryzer, in Illinois, at 10:59 p.m. on November 14, 2014.

         ¶ 14 Veryzer testified that he had been employed as a certified canine handler with the Illinois State Police for four years and had been a trooper with the Illinois State Police for seven years. Veryzer had taken a 10-week certification course with his canine partner. He also completed over 305 hours of criminal patrol training for the interdiction of terrorists and stolen vehicles and the seizure of narcotics, guns, and currency from trafficking of illegal narcotics, guns, and stolen vehicles. Veryzer had personally seized approximately 46 large loads of narcotics and was on scene with other officers during drug seizures, and he was able to see where different narcotics were hidden in the various vehicles.

         ¶ 15 Veryzer testified, based upon his experience and training, that the cocaine and heroin drug trafficking flow originates on the west coast and travels toward the east coast via interstate highways, including I-80, and the currency for those drug transactions returns from the east to the west. Veryzer testified that it was common for people transporting the narcotics to be in third-party rental vehicles to allow the transporters to plausibly deny knowledge of the narcotics being in the vehicle. Veryzer also testified that it was common for narcotic transporters to pay for expenses using cash and to keep receipts to prove their expenses.

         ¶ 16 Veryzer testified that once he began searching defendant's vehicle at the police station, it took 10 to 15 minutes to find the drugs in the empty space located under the hood of the car and near the base of the windshield. He explained that finding the drugs took as long as it did because, once an "in-depth" search was undertaken, everything was done in "a methodical manner." Once Veryzer had searched defendant's luggage and other places in or around the vehicle where he had discovered drugs in other vehicle searches in the past, Veryzer continued searching other locations of the vehicle. He was not able to see the black packages of narcotics in the void compartment area under the windshield on the roadside by just shining a flashlight because a flat piece of plastic or metal covered it. That piece of metal or plastic could easily be removed by removing some clips that covered the compartment, which was part of the vehicle from the factory, was not modified, and could be easily accessed. Veryzer had never encountered a drug seizure with drugs hidden in that particular location of a vehicle.

         ¶ 17 At the close of the State's evidence, defendant made a motion for a directed verdict, arguing that the State was unable to prove defendant had knowledge of the drugs in the vehicle. The trial court denied the motion, finding that taking all reasonable inferences from the evidence in the light most favorable to the State, a rational fact finder could find the defendant guilty. Defendant chose not to testify. The jury found defendant guilty on all charged counts. Defendant was ...

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