People v. Cash

• Decision Date: 10 December 2009
• Docket Number: No. 2-08-0245.,2-08-0245.
• Citation: 922 N.E.2d 1103
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Brandon J. CASH, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

922 N.E.2d 1103

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Brandon J. CASH, Defendant-Appellee.

No. 2-08-0245.

Appellate Court of Illinois, Second District.

December 10, 2009.

Philip J. Nicolosi, Winnebago County State's Attorney, Rockford, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellant.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Vicki P. Kouros, Office of State Appellate Defender, Elgin, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Brandon J. Cash, was charged with possession with the intent to deliver between 30 and 500 grams of cannabis while within 1,000 feet of a school (720 ILCS 550/5.2(b) (West 2006)). Defendant moved to quash his arrest and suppress the evidence. The circuit court of Winnebago County heard and granted defendant's motion, finding that the brief activation of a police car's emergency lights and siren constituted a seizure of defendant without reasonable suspicion. The State appeals, contending that the trial court did not properly consider the totality of the evidence and that no evidence was adduced indicating that defendant submitted to the officers' show of authority. We affirm.

The following facts are taken from the record and the testimony of Special Agent Greg Brotan of the Drug Enforcement Agency (DEA) at the hearing on defendant's motion to quash and suppress. Brotan testified that, on April 17, 2007, he and other agents were in Rockford, keeping a house belonging to Nicholas Castronovo under surveillance. Brotan testified that the surveillance was pursuant to a warrant to search the Castronovo house. The warrant had not been executed yet because Brotan had received information that Castronovo possessed an AK-47 assault rifle and other firearms in the house. In consideration of the firearm information, the agents did not want to chance a forced entry into the house; instead, they decided to wait until Castronovo left the house, at which time he could be more safely approached. Brotan explained that this was why they were keeping the house under surveillance.

At some point that day, Castronovo left the house, alone, apparently unarmed, and drove a maroon Lincoln Town Car. Brotan and two other officers followed Castronovo's car. Brotan testified that he did not have either a search warrant for Castronovo's car or an arrest warrant for Castronovo or defendant. Brotan testified that, as he followed Castronovo's car, he did not see Castronovo commit any traffic violations. Castronovo stopped and parked his car in the 2200 block of Edgebrook Drive.

Brotan testified that there were other cars parked along Edgebrook Drive. Castronovo parked his car behind another Lincoln Town Car. Brotan did not clearly recall the color of the second Lincoln, but believed it may have been silver. Brotan testified that both cars were legally parked. Brotan testified that he was in an unmarked vehicle, as was each of the other two officers, Special Agent Hilgers of the DEA and Officer Mott.

Brotan testified that, shortly after Castronovo had parked, Hilgers and Mott pulled in behind the Castronovo vehicle. By that time, defendant had joined Castronovo in the car.

Brotan was initially unable to recall whether Hilgers used his lights and siren. After referring to his report, Brotan testified that Hilgers "hit the lights and siren real quick." Brotan explained that Hilgers activated the lights and siren to let Castronovo know that he was behind his car.

Brotan testified that, by the time he had arrived and parked his car behind the other two police cars, Hilgers and Mott were already out of their cars and on either side of Castronovo's car. Both defendant and Castronovo were already out of the car. Brotan testified that he did not hear Hilgers or Mott say anything to Castronovo or defendant, but he also testified that the officers had asked Castronovo and defendant to get out of the car. Brotan testified that it was reported to him that, when Castronovo and defendant opened the doors to the car, Hilgers saw a plastic bag on the seat, and both Hilgers and Mott smelled a strong odor of marijuana as soon as the car doors were opened.

Brotan testified that, as he approached Castronovo's car, he also noticed a strong odor of marijuana. Brotan explained that, based on the pungency of the odor, he believed that the marijuana had been grown hydroponically, as that tends to concentrate the THC content and leads to a more pungent smell than observed in marijuana that is not grown hydroponically. Brotan testified that the bag inside Castronovo's car contained a number of clear plastic bags, all of which contained marijuana. The total weight of the marijuana recovered totaled 87.5 grams. Brotan testified that $9,680 in cash was also recovered. According to Brotan, defendant eventually admitted that he was using the money to purchase marijuana from Castronovo.

Following Brotan's testimony and argument by the parties, the trial court gave the following ruling from the bench:

"We all know the fourth amendment says in essence that all searches must be premised by a search warrant based upon probable cause unless there's some exception.

I understand by the testimony that on April 17th of '07 the officers had with them a search warrant for the address of 4010 Highcrest Road.

The Court understands the reason why officers didn't go in, because they had information that there may be weapons involved and they're concerned about their safety. Rather than entering the residence pursuant to that lawfully issued search warrant, they backed off and observed Mr. Castronovo leaving the scene in a Lincoln Town Car, they followed, and the Town Car pulled into another location.

There were other officers involved besides Officer Brotan, * * * and it's quite clear by the testimony that the vehicle that Mr. Castronovo had been driving was stopped.

One of the exceptions of the warrant requirement of the fourth amendment is search incident to the automobile search, which means, in essence, if the officers have probable cause to believe that evidence is located in a vehicle and that vehicle is moving or about to be moved, they have the authority to stop and search.

The question I have is was there any information in the officers' minds when Castronovo left the home whether or not he had any evidence of crimes or contraband in the vehicle. The officers testified they had no information that there were any weapons present on Mr. Castronovo, nor did they have any other information that any other contraband or illegal substance may be located in that car.

The car was stopped, and the issue now is, one, did the officers have `the right to seize the occupants in the vehicle.'

There's been testimony that there were no traffic violations, no parking violations, and the officers pulled up, two other officers in different squads in addition to officer or Agent Brotan. The question is did the other officers have the opportunity to seize. The issue is seizure.

I think it's quite clear, and the Court is familiar with the cases, once the officer turns on lights, whether the vehicle is stopped by the officer or vehicle stopped, there must be some reason to seize that vehicle. And that's the question before the Court. We know that two other agents approached the vehicle where Mr. Castronovo was the driver, and passenger now would be this defendant. Was the initial seizure, the turning on the lights and tapping the siren, was that justified?

Based on case law submitted to the Court, the Court finds there was a seizure and that the officers—did the officers have any reasonable articulable suspicion at that time that criminal activity was afoot that would even justify a Terry stop? I find that's not present in this case. There's been no testimony regarding the justification regarding the seizure of the vehicle. If the officers had pulled behind and walked up, would be a different story but, as the case law appropriately points out, case of People v. Laake, 347 Ill.App.3d 1122, 348 Ill. App.3d 346, 284 Ill.Dec. 203, 809 N.E.2d 769 (2004) , just to read a portion, `Driver of vehicle that was stopped on shoulder of road was detained for purpose of fourth amendment when officer pulled behind the vehicle and activated emergency overhead lights.'

So at the time the officers activated emergency lights there was seizure. And was that seizure justified? And I find there is no evidence presented that the seizure was lawful.

I'm going to grant the Defendant's Motion to Suppress the Evidence."

About three weeks later, the State filed a motion to reconsider. Nearly three months after the motion was filed, the court heard arguments and made the following ruling:

"We have a unique set of facts in this case, and I point out that the cases that the State has cited are distinguishable regarding the facts of this case. And this is why I'm going to go over my notes again.

And my recollection of the facts, and the transcript bears this out, that on April 17 of '07, the officer was involved with another officer in a search warrant for the address of 4010 High Crest Road. They were conducting surveillance, and there was no testimony presented that while the surveillance was going on, while the car left, that other officers arrived, and the search warrant was executed. I don't know when the search warrant was executed if it was, if sic fact, executed.

And they indicated the address belonged to a Nick Castronovo. The car that left was a maroon Lincoln Town Car. They had no arrest warrant for Mr. Castronovo or the defendant, in this case Brandon Cash.

They followed the vehicle, and the officer testified there were no violations of traffic violations, no other violations, and he gave the address of the 2200 block of Edgebrook.

Then there was a silver Lincoln Town Car parked,

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