People v. Musgrave

2019 IL App (4th) 170106

141 N.E.3d 320

435 Ill.Dec. 810

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Taryll MUSGRAVE, Defendant-Appellant.

NO. 4-17-0106

Appellate Court of Illinois, Fourth District.

FILED June 10, 2019

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

¶ 1 In February 2015, defendant, Taryll Musgrave, was pulled over by the police while driving. During the traffic stop, defendant consented to being searched. Later that month, the State charged defendant with (count I) unlawful possession of a controlled substance with intent to deliver and (count II) unlawful possession of a controlled substance. 720 ILCS 570/401(a)(2)(A), 402(a)(2)(A) (West 2014). In September 2015, defendant filed a motion to suppress evidence obtained from the search conducted during the traffic stop. The trial court denied this motion.

¶ 2 In August 2016, the State and defense counsel presented the trial court with a proposed plea agreement in which defendant would plead guilty and be sentenced to 13 years in prison. Defendant rejected this agreement in open court and elected to proceed to trial.

¶ 3 In October 2016, the State dismissed count I and the parties proceeded to a stipulated bench trial on count II. The trial court found defendant guilty of count II (unlawful possession of a controlled substance). In December 2016, the court sentenced defendant to 16 years in prison.

¶ 4 Defendant appeals, arguing (1) the trial court should have granted his motion to suppress because the police prolonged the traffic stop beyond the time necessary to complete the mission of the stop, (2) the trial court's sentence was an abuse of discretion, and (3) the trial court imposed "a trial tax." We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Charges

¶ 7 In February 2015, the State charged defendant with (count I) unlawful possession of a controlled substance with intent to deliver (more than 15 grams but less than 100 grams of a substance containing cocaine) and (count II) unlawful possession of a controlled substance (more than 15 grams but less than 100 grams of a substance containing cocaine). Id. §§ 401(a)(2)(A), 402(a)(2)(A). The State noted that defendant was extended-term eligible for count II due to his prior criminal record. After the trial court initially appointed the public defender's office at defendant's request, he chose to proceed pro se .

¶ 8 B. The Motion To Suppress

¶ 9 In September 2015, defendant pro se filed a motion to suppress evidence obtained from a search conducted during his traffic stop. In his motion, defendant wrote that on February 26, 2015, he "was pull[ed] over for a traffic violation" and that "Officer Jared Johnson asked if I had anything illegal on me. He also ask[ed] for consent to search me. I granted the consent." In pertinent part, defendant essentially argued that his consent was "tainted" because the police prolonged the stop beyond the time necessary to complete the mission of the stop.

¶ 10 In November 2015, the trial court conducted a hearing on defendant's pro se motion to suppress. Defendant first called Officer Tyrel Klein as a witness.

¶ 11 1. Officer Klein

¶ 12 Klein testified that he was a police officer with the Bloomington Police Department. On February 26, 2015 at 2:10 p.m., he pulled over a taxicab that defendant was driving. Klein noted that defendant had a passenger in the back seat of his taxicab. Klein stated that he pulled defendant over because he was speeding, failed to use his turn signal, and made an improper left turn. During the State's cross-examination, Klein testified as follows:

"Q. Now when you made the traffic stop, what did you initially do or say to the defendant?

A. I—like I do with every traffic stop—I introduced myself, and I explained the reason for the stop and I asked for [defendant's] driver's license and proof of insurance.

Q. And so you explained the speeding, as well as the signal and the turn issues?

A. Yes.

Q. Was that at about 14:10:59 [2:10 p.m.]?

A. Yes.

* * *

Q. And did, in fact, did you take his driver's license and insurance card?

A. Yes.

Q. And as part of your routine traffic stop, what do you do with those items?

A. I completed a records check through the Illinois Secretary of State using my in-car computer.

Q. Do you have to walk back to your squad car [to do that]?

A. Yes.

Q. Initially you received the traffic driver's license and insurance card from the defendant at 14:11 and 33 seconds [2:11 p.m.]?

A. Yes.

Q. And did you go back to your car to fill out paperwork?

A. Yes.

Q. And as far as that goes, there is more than one form, correct?

A. Yes.

Q. Did you find out who [the] passenger was?

A. I did.

Q. Did you go on your computer to check to see whether that person was clear or had any active warrants or anything like that?

A. I checked that person as well.

Q. And did you check the defendant?

A. Yes.

Q. And what, if anything, did he as far as him being clear or valid [sic ]?

A. His license was valid.

Q. Does that take a few minutes to run those records through the computer?

A. To type it in and run it, yes.

Q. Likewise, you had to obtain the identification from both individuals prior to that?

A. Yes.

Q. And you did all that, is that right?

A. Yes.

Q. And while you're doing that you also had to deal with paperwork, correct?

A. Correct.

Q. Did you—Officer Jared Johnson arrive[d] while you were dealing with paperwork and these records checks?

A. Yes.

Q. Was that about 14:18 and 36 seconds [2:18 p.m.]?

A. Yes.

Q. And as far as that goes, the paperwork you included, let's specifically talk about that. Did you get out and assist Officer Jared Johnson?

A. When I saw Officer Johnson placing the defendant into custody, I stepped up to assist.

Q. In the interim you were just doing paperwork and not helping [Officer Johnson] relating to his role?

A. Correct.

* * *

Q. Officer Johnson, what was his role?

A. He's a backup officer.

Q. Did he come to back you up?

A. Yes.

Q. As far as that goes, were you in the squad car when he was dealing with the defendant?

A. Yes.

* * *

Q. And did you see Officer Jared Johnson handcuff him?

A. Yes.

* * *

Q. And when he handcuffed him, is it fair to say that was about 14:20 and 25 seconds [2:20 p.m.]?

A. Yes.

Q. You hadn't completed all of your paperwork after doing the records check at that point, had you?

A. I had not.

Q. And, in fact, what paperwork, if any, had you fully completed?

A. I hadn't even fully completed the written warning.

* * *

Q. Did you finish that [written warning] after actually [sic ] the traffic stop occurred?

A. Yes."

¶ 13 2. Officer Johnson

¶ 14 Officer Johnson, during defendant's pro se direct examination, testified as follows:

"Q. * * * Did you have occasion to see [me] parked in a vehicle * * *?

A. Yes.

Q. Was I in the vehicle?

A. Yes.

Q. Was I with anyone?

A. Yes.

Q. Who was I with?

A. A passenger, female. I don't know [her] name.

Q. What type of vehicle was I in?

A. Taxi cab.

Q. Who was driving the vehicle?

A. You were.

* * *

Q. Then you asked [defendant] if you could search him to make sure he had nothing illegal on him?

* * *

A. That sounds accurate.

Q. You * * * asked if there was any reason the K-9 would indicate for the odor of narcotics, correct?

A. At some point, yes.

* * *

Q. What was the situation you wanted to explain to the defendant when you requested him to exit the car?

A. That the K-9 was going to do a free-air sniff of the car, the K-9 was already on scene and by our policy we remove all occupants of the vehicle before the K-9 does a free-air sniff."

¶ 15 During the State's cross-examination, Johnson testified as follows:

"Q. You were the backup officer. Is that right?

A. Yes, sir.

* * *

Q. And when you arrived, when you went up to the car that the defendant was in at about 14:19 [2:19 p.m.] and 18 seconds. Is that right?

A. Correct.

* * *

Q. Did you tell him you were going to have him exit the car?

A. I did.

Q. Was there another officer who arrived by the name of Officer Shively?

A. There was.

Q. And why would you have him get out of the car, because Officer Shively was there?

A. Because Officer Shively is our K-9 officer * * * by our policy for safety reasons, when we have the K-9 conduct a free-air sniff of the vehicle we have all of [the] occupants of the vehicle, with the exception of infants and small children, exit the vehicle.

Q. And so the female [passenger] was taken out of the car?

A. Eventually, yes.

Q. And the defendant got out of the car pretty easily. Is that right?

A. That's correct.

Q. Was he cooperative?

A. He was.

Q. And where did you go? Did you go off to the side of the road?

A. We got out of the lane of traffic and off to the side, yes.

Q. While that's happening, Officer Tyrel Klein, he's in his squad car, correct?

A. That's correct.

Q. What is he doing?

A. Running the driver's information, maybe issuing a citation.

Q. Just so it's clear, he's not helping you?

A. Negative, he's not [helping me].

Q. He's dealing with the traffic citation?

A. Correct.

* * *

Q. So he's doing his paperwork related to the traffic stop, correct?

A. That's correct.

Q. And you're doing dealing [sic ] with the defendant and the free-air sniff?

A. Correct.

Q. And Officer Shively is there as well?

A. That's correct.

Q. In fact, it didn't get to that point [of using the drug dog], though, did it?

A. It did not.

Q. And, in fact, at 14:19:36 [2:19 p.m.] you asked [defendant] if you [could] searched [sic ] him real quick. Is that right?

A. That's correct.

Q. And [defendant] said if you want to. Is that right?

A. Correct.

* * *

Q. So, in fact, did you conduct that search?

A. I did.

Q. And where is Officer Klein at that time?

A. Still in the driver's seat of his squad car.

Q. Doing the paperwork?

A. Correct.

* * *

Q. And then at 14:20 and 25 seconds [2:20 p.m.], that's when you handcuffed the defendant?

A. That sounds correct.

Q. And where was Officer Klein at that time?

A. In his driver's seat.

Q. And, again, he wasn't helping you in any form or fashion dealing with this secondary aspect or [the] K-9 free-air sniff preparation?

A. Correct."

¶ 16 3. The Trial Court's Ruling

¶ 17 Following this...