People v. Cosby
| Decision Date | 18 September 2008 |
| Docket Number | No. 100681.,No. 102584.,100681.,102584. |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. Michael P. COSBY, Appellee. The People of the State of Illinois, Appellant, v. Hugo Mendoza, Appellee. |
| Court | Illinois Supreme Court |
Lisa Madigan, Attorney General, Springfield, James W. Glasgow, State's Attorney, Joliet (Gary S. Feinerman, Solicitor General, Michael M. Glick, Assistant Attorney General, Chicago, Norbert J. Goetten, Lawrence M. Bauer, Joe Mikula, Office of the State's Attorneys Appellate Prosecutor, Ottawa, of counsel), for the People in No. 100681.
Michael J. Pelletier, State Appellate Defender, Robert Agostinelli, Deputy Defender, Verlin R. Meinz, Thomas A. Karalis, Assistant Deputy Defenders, Office of the State Appellate Defender, Ottawa, for appellee in No. 100681.
Lisa Madigan, Attorney General, Springfield, John A. Barsanti, State's Attorney, St. Charles (Gary S. Feinerman, Solicitor General, Michael M. Glick, Assistant Attorney General, Chicago, Norbert J. Goetten, Martin P. Moltz, Gregory L. Slovacek, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the People in No. 102584.
No appearance for appellee in No. 102584.
These consolidated cases involve unrelated traffic stops of vehicles driven by defendants Cosby and Mendoza.
The State initially charged Cosby with unlawful possession of drug paraphernalia (720 ILCS 600/3.5 (West 2000)) and unlawful possession of cocaine (720 ILCS 570/402(c) (West 2000)), resulting from a search of Cosby's vehicle and of a cigarette pack belonging to Cosby. The drug paraphernalia charge was later nol-prossed by the State. Cosby filed a motion to suppress evidence. Trial counsel and the State stipulated to the admission of the police report written by Officer Steven Kaus and then presented arguments to the circuit court of Will County. The police report is not in the record on appeal. However, the appellate court stated the stipulation provided that Kaus would testify that he stopped Cosby for not having a proper rear registration light. Cosby provided valid insurance information and a speeding ticket in lieu of a driver's license. Kaus returned to his squad car and called for backup. He verified that Cosby had a valid driver's license and that there were no outstanding warrants for his arrest. When the backup officer arrived, Kaus approached Cosby's car, returned his speeding ticket and insurance card to him, and gave Cosby a warning for the rear light violation. Kaus then asked for consent to search Cosby's car. Cosby consented. Kaus found drug paraphernalia in the console of the car and he arrested Cosby.
The trial court denied the motion to suppress, but did not explain its reasoning.
At Cosby's trial, Kaus testified that at approximately 1:30 a.m. on July 12, 2001, he stopped Cosby's car for having no rear license plate light. Cosby handed him a speeding ticket and an insurance card. Kaus went back to his squad car, where he called for backup in anticipation of requesting Cosby's consent to search his car. About five minutes later, the backup officer arrived. Kaus went back to Cosby's car, returned the speeding ticket and insurance card, and gave Cosby a written warning about the rear registration light. Kaus then asked Cosby for consent to search his car, which Cosby gave. Prior to searching the car, Kaus asked for and received consent from Cosby to search his person. Cosby removed all items from his pockets, Kaus inspected them, and Cosby replaced the items in his pockets. Kaus then proceeded to search Cosby's car. Kaus found a crack pipe in the car's center console. He placed Cosby under arrest and took him to the police station. There, Cosby emptied his pockets and placed his property on a tray, including a package of cigarettes. Cosby called his wife to come to the jail and post bond. As Kaus was giving Cosby back his property, he discovered four rocks of crack cocaine hidden within the cigarette packaging.
The jury convicted Cosby of the possession charge and, following a sentencing hearing, the trial court sentenced Cosby to 24 months of probation, six months in the county jail, and payment of fines. Trial counsel filed a motion to reconsider sentence, which was denied. Counsel did not file a posttrial motion.
Cosby appealed, arguing that the trial court erred in denying his motion to suppress evidence. The appellate court first addressed Cosby's forfeiture of his argument on appeal, noting that Cosby had failed to preserve the issue in a posttrial motion. However, the appellate court elected to consider the issue, "[b]ased on the constitutional nature and underlying implication of the alleged error." Relying on this court's decision in People v. Gonzalez, 204 Ill.2d 220, 273 Ill.Dec. 360, 789 N.E.2d 260 (2003), the appellate court held that Kaus' questioning of Cosby and his search of Cosby's car were unrelated to the circumstances justifying the stop, that Kaus lacked any reasonable, articulable suspicion that would support his further detention and questioning of Cosby, and that Kaus' actions impermissibly prolonged Cosby's detention and changed the fundamental nature of the stop. Accordingly, the appellate court held that the motion to suppress should have been granted. Cosby, No. 3-03-0681, 355 Ill. App.3d 1200, 319 Ill.Dec. 314, 885 N.E.2d 585 (unpublished order under Supreme Court Rule 23).
Justice Schmidt dissented, arguing that Gonzalez has been implicitly overruled by the United States Supreme Court's decision in Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Relying on other decisions of this court and the Supreme Court, Justice Schmidt would have found the search of Cosby's car legal on the basis of a valid consent.
We granted the State's petition for leave to appeal (210 Ill.2d R. 315(a)).
Mendoza was charged in the circuit court of Kane County with unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002)). Mendoza's trial counsel filed a motion to suppress evidence. A hearing on that motion was held, at which two police officers testified. At about 11 p.m. on May 10, 2004, two Aurora police officers, Inspectors Jeff Wiencek and Joe Weber, observed Mendoza driving his Pontiac Grand Prix sedan. They noted that the car's rear license plate cover was tinted, in violation of Illinois law. They also noticed a red bandana hanging from the rearview mirror of Mendoza's car, which they considered a gang symbol of the Vice Lords. In addition, the officers determined the bandana to be large enough to obstruct Mendoza's view, which was also a violation of Illinois law. The officers pulled Mendoza over. Pursuant to their request, Mendoza handed them his driver's license and proof of insurance.
After determining that the license and insurance card were valid and that Mendoza had no outstanding warrants, the officers decided to ask Mendoza for permission to search his car. In explaining this decision, Wiencek, who had been a gang investigator for seven years, testified that the neighborhood was known for its gang activity. Although Wiencek did not know whether Mendoza was a gang member, he knew from covert surveillance, police reports, and interviewing people that Mendoza was an "affiliate" of the Vice Lords. Mendoza had been seen in the presence of gang members. The bandana hanging from Mendoza's rearview mirror was red, which was one of the colors used by the Vice Lords. Using the bandana was one way of signifying affiliation with the gang. The officers were concerned that Mendoza might have a gun in his car. After checking Mendoza's driver's license and insurance, the officers returned to the car, one on each side. Weber returned Mendoza's license and insurance card, gave him a verbal warning, and asked him if he had anything illegal in the car. Mendoza responded that he did not. Weber then asked Mendoza for permission to search his car. Mendoza refused consent.
Meanwhile, Wiencek, who was standing on the passenger side of the car, shined his flashlight inside the car and saw the butt of a gun sticking out from under the driver's seat between Mendoza's feet. Not wanting to create a hostile situation by drawing his gun on Mendoza, Wiencek tried to surreptitiously signal Weber to the presence of the gun. However, Weber was talking to Mendoza and Wiencek could not get Weber's attention. After Mendoza refused consent to search his car, Weber told him he was free to leave. Mendoza started to drive away and Wiencek told Weber about the gun. Weber yelled at Mendoza to stop, but he did not. The two officers got into their squad car and drove after Mendoza. Wiencek could see Mendoza's head and shoulders moving, but could not tell what he was doing. Weber did not notice any movement. The officers pulled Mendoza over again. They ordered Mendoza to exit the car. They handcuffed him and patted him down. Wiencek searched the car. Although Wiencek did not find a gun under the driver's seat, he found a handgun underneath a plastic tray in the center console of Mendoza's car.
The trial court, relying on Gonzalez, granted Mendoza's motion, concluding that Weber's questions to Mendoza after the traffic stop was concluded were neither related to the traffic stop nor justified by a reasonable suspicion of additional criminal activity. Since the gun was not discovered until the officers had already violated the fourth amendment by their questioning of Mendoza, the trial court found that the gun would not have been discovered absent the violation. The State appealed.
The appellate court rejected the trial court's reliance on Gonzalez. However, the court nonetheless affirmed the trial court's grant of Mendoza's motion to suppress. The court reasoned that Gonzalez only applies to traffic stops that are...
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