Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 12 CR 19327 (03)
Honorable Lawrence E. Flood, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Heidi Linn Lambros, of State Appellate Defender’s
Office, of Chicago, for appellee.
Attorneys for Appellee: Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and
Noah Montague, Assistant State’s Attorneys, of
counsel), for the People.
JUSTICE HYMAN delivered the judgment of the court, with
opinion. Justices Pucinski and Coghlan concurred in the
judgment and opinion.
1 The State charged Parrish Davis with possessing more than
900 grams of cocaine found in a compartment secreted near
where he sat in the backseat of a car. Before trial, Davis
moved to suppress this evidence, arguing that the search
leading to its discovery was unreasonable. The trial court
denied the motion. In addition to the cocaine, officers found
three guns and multiple rounds of ammunition. The State moved
in limine to admit the gun evidence along with an
admission to police that he possessed the drugs and guns. The
trial court granted both in limine motions. A jury
convicted Davis of one count of possession with intent to
deliver more than 900 grams of cocaine. The trial court
sentenced Davis to 25 years in prison.
2 On appeal, Davis raises four arguments: (i) the trial court
erred in denying his motion to suppress evidence, (ii) the
trial court erred in admitting evidence of the guns, (iii)
the State violated the trial court's in limine
ruling by introducing evidence of the statement not covered
by that ruling, and (iv) his sentence is excessive. At oral
argument, Davis withdrew his third contention. We disagree
with Davis's remaining arguments and affirm his
conviction and sentence.
4 At about 3 p.m. on October 24, 2011, Yakov Witherspoon
picked up a woman he knew, Franchon Jenkins, so she could get
her paycheck at Navy Pier. He drove a silver two-door Honda.
Parrish Davis accompanied them, sitting in the backseat. When
they arrived at Navy Pier, Witherspoon let Jenkins out and
then dropped Davis off at the Louis Vuitton store on Michigan
Avenue. Witherspoon went back to Navy Pier, picked up
Jenkins, and returned to the Louis Vuitton store for Davis.
As they drove back to Jenkins's home, Jenkins lay back
and closed her eyes. She woke up when Witherspoon parked the
Honda in a Marshall's lot.
5 Witherspoon backed into the parking space. Davis opened his
door, and a man in the driver's seat of a van next to
them handed a white bag into the backseat. Witherspoon could
not see what was in the bag and had no knowledge about what
was in it. Jenkins also saw "a white bag being hand[ed]
towards the back." After the other man passed the bag
into the car, Witherspoon "pulled off."
6 While the three went about their day, Chicago police
officers were deep into a narcotics investigation, working as
part of a task force with the federal Drug Enforcement
Administration (DEA). Undercover Chicago police officer
Edison Cevallos phoned a man named Jorge Urbina-the target of
the investigation-at about 2:40 p.m. Cevallos ordered 2.5
ounces of cocaine from Urbina, an order similar to five or
six others he had made. Cevallos arranged with Urbina to buy
the cocaine around 5 p.m. that day. He relayed the
information about the planned drug buy to the other members
of his team.
7 Chicago police officer Robert Dembski, also part of the DEA
task force, was already familiar with Urbina. At 4:11 p.m.,
Dembski saw Urbina driving a maroon minivan near 59th Street
and Richmond Street. He followed, keeping Urbina under
constant surveillance until he pulled into a parking spot
near a Marshall's in an "outdoor shopping
center" at 4:47 p.m. When they arrived at the parking
lot, no other cars were near Urbina's van. Other
surveillance officers arrived, Dembski passed off primary
surveillance responsibilities to Chicago police officer
8 About 30 minutes later, Mok watched as "a
silver-colored, two-door Honda arrive[d] at the location and
backed into the space next to the minivan." The Honda
and the minivan parked so that the driver's sides faced
each other. Mok saw the driver door of the Honda and the
minivan open at the same time and saw Urbina "lean
outward *** down a little bit and [saw] a white object being
transferred from the minivan to the Honda." From
Mok's vantage point, the object looked like the
"corner of a white bag, possibly." The drivers
closed their doors, and the Honda and the van "swiftly
left the location." Mok believed he had seen a drug
9 The van and the Honda travelled in separate directions. Mok
instructed his team to follow the Honda, which drove to the
Dan Ryan Expressway and got off at 59th Street. From there,
Mok watched as Witherspoon "did not use his turn signal
to make a southbound turn onto Prairie." Witherspoon, on
the other hand, recalled using his turn signal for every
turn. Witherspoon pulled over near 60th Street and Prairie
Avenue to let Jenkins out. Mok "asked all [his]
teammates to converge, " and Witherspoon and Jenkins
recalled that "the police cars just pulled up behind
[them]" without activated lights or sirens.
10 Mok asked Witherspoon for his driver's license, which
he gave. Mok asked all three occupants if they owned the car,
and they all said they did not. After learning that, Mok had
other officers take Jenkins and Davis out of the car.
Witherspoon is paralyzed from the waist down; Mok allowed him
to stay in the car.
11 Mok asked Witherspoon if any drugs were in the car.
Witherspoon said, "There's no drugs in the car, go
ahead and search it, it's not mine." At this point,
Mok helped Witherspoon out. Mok then started to search the
car. Witherspoon denied being asked about drugs and denied
giving consent to search, saying that officers "[p]retty
much just start[ed] tearing the car up" from front to
back right when they got to the car.
12 Mok started his search "from the front passenger side
and worked [his] way towards the back compartment." He
did not find any drugs or contraband in the front area. He
overheard a sergeant talking to Witherpoon, "trying to
convince Mr. Witherspoon to tell [them] where the drug
location was." At that point, Mok said that Witherspoon
made either a "gesture" or an "eye
movement" to "make some sort of indication to [Mok]
that, without being too specific, that there [was], you know,
the contraband in the back seat [sic]."
According to Mok, Witherspon was "nodding his head
towards the side of the-the rear side of the vehicle with eye
movement as well as, you know, whispering that it's over
13 Inspired by his communication with Witherspoon, Mok
shifted his search to "the rear behind the driver's
side." Mok noticed "a vinyl panel about the
armrest, " which he "pried open with [his]
hand." Once he opened the panel, Mok could see that
"there's a hidden compartment, you know, inside that
location." Mok reached in and took out a white bag with
an object "wrapped in black electrical tape." Mok
believed the object was a kilogram of cocaine. The
compartment also had three semiautomatic guns and an
electronic scale. Then Mok opened another panel on the rear
passenger side. He found another compartment with a green bag
containing 9-millimeter and .45-caliber rounds of ammunition.
14 Before trial, Davis filed a motion to suppress all the
evidence found in the Honda. He argued that there was no
basis for the stop, it was illegal, and that any consent
Witherspoon gave was tainted by the stop's illegality.
Davis's counsel also argued that, even if it was not an
illegal stop, the search exceeded the scope of the stop's
purpose. The trial court pressed the State on the consent
issue, and the State argued (among other points) "that
this was a consent, a valid consent stop, and the stop itself
is supported by the observations and experience of the
officer." The trial court denied the motion, finding
that the officers conducted a valid Terry stop (see
Terry v. Ohio, 392 U.S. 1 (1968)) based on their
observations of the interaction between Witherspoon and
Urbina. As to consent, the trial court denied the motion,
finding: "I believe the police officer. I believe that
Mr. Witherspoon gave consent to the officer to search the
vehicle. The officer searched the vehicle and recovered the
15 Also before trial, the State moved "[t]o allow the
People to introduce the three handguns that were recovered at
the same time as the kilogram of cocaine." The State
sought admission of the gun evidence on the ground that it
was relevant to prove Davis's intent to deliver the
drugs. The State also contended that the evidence was not
cumulative of Davis's statement because Davis would deny
making the statement and the gun evidence helped prove up the
statement, which also contained an admission about the guns.
Defense counsel argued that the gun evidence would be
"overkill" as the statement was already coming in.
16 The trial court partially denied the State's motion to
admit the gun evidence:
"I'm going to deny the motion in limine on
behalf of the State because in light of my ruling as far as
the statement and the purpose for which that's being
admitted, knowledge, lack of mistake and intent, I think that
in looking at the probative value versus the undue prejudice,
I think by allowing that information in regarding the guns
under 403, number one, it may be cumulative, number one; and
number two, I think in light of my ruling on the statement,
it would be unduly prejudicial."
State sought clarification on the scope of the ruling and
this exchange took place:
"THE COURT: Right, but I'm not going to let you
argue the inference that's to be drawn from those weapons
as far as knowledge, intent, or lack of mistake. Do you
ASSISTANT STATE'S ATTORNEY [(ASA)]: So the recovery comes
THE COURT: Yes. That's what the officers recovered.
[ASA]: And then I just stay away from the argument.
THE COURT: Absolutely.
THE COURT: Okay? Don't argue that to the jury about the
recovery of the guns.
[ASA]: I won't but the fact that it comes in will come