People v. Banta
| Decision Date | 17 March 2021 |
| Docket Number | 4-18-0761 |
| Citation | 2021 IL App (4th) 180761,185 N.E.3d 333,452 Ill.Dec. 257 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Germal L. BANTA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Chicago, Catherine K. Hart, and Bryan JW McIntyre, of State Appellate Defender's Office, of Springfield, for appellant.
Daniel K. Wright, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Benjamin M. Sardinas, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
¶ 1 In July 2017, defendant Germal L. Banta was charged with four drug-related offenses, including manufacture and delivery of a controlled substance, a Class X felony. In March 2018, after a hearing on defendant's motion to suppress evidence, the trial court denied the motion, finding defendant voluntarily consented to the police search of his person.
¶ 2 In August 2018, defendant was convicted of the Class X felony after a stipulated bench trial, and the trial court set the matter for sentencing in October 2018. At that time, defendant was sentenced to nine years in the Illinois Department of Corrections (DOC).
¶ 3 On appeal, defendant argues (1) the trial court erred by denying his motion to suppress because (a) he did not consent to a search of his person by the police and (b) his illegal detention and subsequent frisk vitiated any later consent; (2) the search was unconstitutionally invasive and exceeded the scope of any implied consent; (3) the trial court's in camera viewing of body camera videos admitted during the motion to suppress constitutes second-prong plain error; (4) the evidence was insufficient to find defendant guilty of delivery—rather than possession—of heroin; and (5) the trial court committed plain error at sentencing by (a) considering factors inherent in the offense, (b) refusing to properly consider mitigating evidence, (c) making disparaging remarks about defendant, and (d) giving undue weight to defendant's criminal history in aggravation.
¶ 5 In July 2017, the State charged defendant in a four-count complaint with two counts of manufacture/delivery of a controlled substance, one a Class X felony involving heroin ( 720 ILCS 570/401(a)(1)(A) (West 2016)) and the other a Class 1 felony involving cocaine ( 720 ILCS 570/401(c)(2) (West 2016)), and two counts of unlawful possession of a controlled substance ( 720 ILCS 570/402(a)(1)(A) (West 2016)), one count a Class 1 felony and the other a Class 4 felony.
¶ 6 In November 2017, defendant moved to suppress evidence, claiming, in part, police had no reasonable suspicion to detain and search defendant and the controlled substance found on defendant's person was illegally obtained since police retrieved it from defendant's person without consent and without first procuring a warrant.
¶ 8 During the March 2018 suppression hearing, the trial court heard testimony from defendant, Illinois State Police Trooper Clayton Chapman, and Springfield police detective Michael Raynolds. The witnesses were in agreement that defendant was a passenger in a car lawfully stopped for speeding on the interstate and the driver did not have a license. While Trooper Chapman spoke to the driver, another trooper arrived and performed a K-9 dog sniff, alerting to the presence of drugs inside the vehicle. Defendant testified the trooper approached and asked him to step out of the vehicle and allow him to perform a "pat down" for weapons. Defendant stated he consented to the "pat down," after which the trooper ordered him to stand in the grass next to other officers (defendant said "like six or seven") while they searched the vehicle.
¶ 9 Defendant testified the police searched the car "for almost an hour" without finding anything. Nothing was found on the driver of the vehicle, and no testimony regarding the driver's statements, if any, was introduced at the hearing. Defendant recalled Trooper Chapman approached him after searching the vehicle and said, "I want to re-search you again." Defendant said he told Chapman,
¶ 10 He claimed one of the officers pulled his Taser and told him to put his hands up, which he did. Trooper Chapman grabbed defendant's hands behind his head and started sliding his hand up and down between his buttocks "like a credit card." Defendant said he "jumped away from him" and said, He asked for someone other than Trooper Chapman to continue searching him because he claimed Chapman continued to stick his hand up defendant's rectum during the search. Defendant testified that "[t]he officer put me in cuffs" and began walking him as if to put him in the squad car and then placed his feet in front of defendant, causing him to fall down. Officers pulled down defendant's pants and held him down while one of the officers pulled the drugs out of his "rectum."
¶ 11 Trooper Chapman, a 14-year veteran with the Illinois State Police, testified he initially spoke with the driver. He eventually determined neither the driver nor defendant had a valid driver's license. On cross-examination, Chapman acknowledged defendant was never free to leave prior to the search he and another officer later conducted of defendant. After learning the K-9 alerted on the vehicle, Chapman and the K-9 handler searched the vehicle, finding no contraband. As a result, the decision was made to search the driver and passenger again. Chapman approached defendant to conduct the search. His testimony then proceeded as follows:
When Chapman began searching defendant, he said he felt an object in between defendant's buttocks, which he "believed to be illegal drugs." Chapman testified defendant "reacted to me and believed that I was rubbing him and felt uncomfortable, and didn't want me to search him anymore."
¶ 12 Detective Raynolds, a detective with the Springfield street crimes unit, testified he assisted the Illinois State Police during the traffic stop. Without providing further explanation, he stated he was "assigned to assist DEA and Illinois State Police in locating a vehicle and possibly stopping it." He was standing next to defendant when he saw Trooper Chapman search him. He heard Chapman say he found something and heard defendant ask to have another officer conduct the search. That other officer, Officer Reidy, then continued with the search and said he found something. Defendant was placed in handcuffs, and Detective Raynolds then began searching and felt a "rock-like substance" in defendant's buttocks, which he believed to be narcotics. Detective Raynolds stated he attempted to retrieve the object but defendant "kept moving and clinching his buttocks." After defendant continued to clench his buttocks, police forced defendant to the ground. Detective Raynolds continued to search defendant, and he pulled the drugs from defendant's buttocks. While defendant was handcuffed, Raynolds testified he heard defendant say "he had a little dope on him." On cross-examination, he confirmed when he arrived, there was no indication defendant had committed any crime, but he agreed with Trooper Chapman that defendant was not free to leave. Raynolds clarified that, contrary to defendant's assertion, the object, which was a baseball-sized plastic Baggie, was not inside defendant's rectum but between his butt cheeks, which is what made it possible for the officers to feel it while conducting the search.
¶ 13 Both parties stipulated to the body camera videos, with defense counsel requesting the court "review it at your leisure after the evidence." The trial court agreed to allow the parties to submit written arguments and continued the case to review the body camera videos and conduct some of its own research before ruling on the motion to suppress.
¶ 15 The body camera video containing the interaction between Trooper Chapman and defendant does not come from Trooper Chapman but from Detective Raynolds. Regrettably, there is no audio on Raynolds's body camera video during this initial encounter to verify if defendant protested the search like he says, or what defendant said.
¶ 16 After defendant exits the car, Trooper Chapman conducts a "pat down" search. Defendant then stands off to the side of the vehicle in a grassy area between two other officers while the troopers search the vehicle. After a search of the vehicle, Trooper Chapman searches the driver and then approaches defendant while two officers stand on either side of him. There is a conversation observed between the two of them, but without audio, there is no record of what was said. As they speak with each other, defendant can be seen making hand gestures. Trooper Chapman makes a motion appearing to direct or order defendant to turn around. Defendant complies, turns around, and puts his hands behind his back like he is waiting to be handcuffed. The trooper does not place handcuffs on him at this time but begins to search defendant starting with the back of his pants, and defendant puts his hands up. Shortly after Trooper Chapman begins searching defendant, Detective Raynolds walks away, and defendant and Trooper Chapman are no longer in view.
¶ 17 Officer Raynolds then approaches defendant and Trooper Chapman and activates the audio on his body camera. Defendant can be heard protesting the invasiveness of Chapman's search and asks that someone else search him. He is eventually handcuffed, and he continues to protest as he starts to physically struggle with the officers. Eventually he is taken to the ground, and the drugs are extracted from his buttocks by one of...
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