People v. West

2017 IL App (3d) 130802

76 N.E.3d 60

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

v.John F. WEST, Defendant-Appellant.

Appeal No. 3-13-0802

Appellate Court of Illinois, Third District.

Opinion filed March 23, 2017

Michael J. Pelletier and Mark D. Fisher (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

Matthew P. Schutte, State's Attorney, of Cambridge (Thomas D. Arado (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 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 5/11601(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...