People v. Davis, 1-16-0408

• Court: United States Appellate Court of Illinois
• Writing for the Court: JUSTICE HYMAN delivered the judgment of the court, with opinion.
• Citation: 439 Ill.Dec. 36,2019 IL App (1st) 160408,147 N.E.3d 711
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Parrish DAVIS, Defendant-Appellant.
• Docket Number: No. 1-16-0408,1-16-0408
• Decision Date: 23 September 2019

2019 IL App (1st) 160408
147 N.E.3d 711
439 Ill.Dec. 36

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Parrish DAVIS, Defendant-Appellant.

No. 1-16-0408

Appellate Court of Illinois, First District, First Division.

Opinion filed September 23, 2019
Modified on denial of rehearing October 28, 2019

James E. Chadd, Patricia Mysza, and Heidi Linn Lambros, of State Appellate Defender's Office, of Chicago, for appellee.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Connors, and Noah Montague, Assistant State's Attorneys, of counsel), for the People.

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

439 Ill.Dec. 41

¶ 1 The State charged Parrish Davis with possessing more than 900 grams of cocaine found in a compartment secreted near where he sat in the backseat of a car. Before trial, Davis moved to suppress this evidence, arguing that the search leading to its discovery was unreasonable. The trial court denied the motion. In addition to the cocaine, officers found three guns and multiple rounds of ammunition. The State moved in limine to admit the gun evidence along with an admission to police that he possessed the drugs and guns. The trial court granted both in limine motions. A jury convicted Davis of one count of possession with intent to deliver more than 900 grams of cocaine. The trial court sentenced Davis to 25 years in prison.

¶ 2 On appeal, Davis raises four arguments: (i) the trial court erred in denying his motion to suppress evidence, (ii) the trial court erred in admitting evidence of the guns, (iii) the State violated the trial court's in limine ruling by introducing evidence of the statement not covered by that ruling, and (iv) his sentence is excessive. At oral argument, Davis withdrew his third contention. We disagree with Davis's remaining arguments and affirm his conviction and sentence.

¶ 3 Background

¶ 4 At about 3 p.m. on October 24, 2011, Yakov Witherspoon picked up a woman he knew, Franchon Jenkins, so she could get her paycheck at Navy Pier. He drove a silver two-door Honda. Parrish Davis accompanied them, sitting in the backseat. When they arrived at Navy Pier, Witherspoon let Jenkins out and then dropped Davis off at the Louis Vuitton store on Michigan Avenue. Witherspoon went back to Navy Pier, picked up Jenkins, and returned to the Louis Vuitton store for Davis. As they drove back to Jenkins's home, Jenkins lay back and closed her eyes. She woke up when Witherspoon parked the Honda in a Marshall's lot.

¶ 5 Witherspoon backed into the parking space. Davis opened his door, and a man in the driver's seat of a van next to them handed a white bag into the backseat. Witherspoon could not see what was in the bag and had no knowledge about what was in it. Jenkins also saw "a white bag being hand[ed] towards the back." After the other man passed the bag into the car, Witherspoon "pulled off."

147 N.E.3d 717

439 Ill.Dec. 42

¶ 6 While the three went about their day, Chicago police officers were deep into a narcotics investigation, working as part of a task force with the federal Drug Enforcement Administration (DEA). Undercover Chicago police officer Edison Cevallos phoned a man named Jorge Urbina—the target of the investigation—at about 2:40 p.m. Cevallos ordered 2.5 ounces of cocaine from Urbina, an order similar to five or six others he had made. Cevallos arranged with Urbina to buy the cocaine around 5 p.m. that day. He relayed the information about the planned drug buy to the other members of his team.

¶ 7 Chicago police officer Robert Dembski, also part of the DEA task force, was already familiar with Urbina. At 4:11 p.m., Dembski saw Urbina driving a maroon minivan near 59th Street and Richmond Street. He followed, keeping Urbina under constant surveillance until he pulled into a parking spot near a Marshall's in an "outdoor shopping center" at 4:47 p.m. When they arrived at the parking lot, no other cars were near Urbina's van. Other surveillance officers arrived, Dembski passed off primary surveillance responsibilities to Chicago police officer Kenneth Mok.

¶ 8 About 30 minutes later, Mok watched as "a silver-colored, two-door Honda arrive[d] at the location and backed into the space next to the minivan." The Honda and the minivan parked so that the driver's sides faced each other. Mok saw the driver door of the Honda and the minivan open at the same time and saw Urbina "lean outward * * * down a little bit and [saw] a white object being transferred from the minivan to the Honda." From Mok's vantage point, the object looked like the "corner of a white bag, possibly." The drivers closed their doors, and the Honda and the van "swiftly left the location." Mok believed he had seen a drug transaction.

¶ 9 The van and the Honda travelled in separate directions. Mok instructed his team to follow the Honda, which drove to the Dan Ryan Expressway and got off at 59th Street. From there, Mok watched as Witherspoon "did not use his turn signal to make a southbound turn onto Prairie." Witherspoon, on the other hand, recalled using his turn signal for every turn. Witherspoon pulled over near 60th Street and Prairie Avenue to let Jenkins out. Mok "asked all [his] teammates to converge," and Witherspoon and Jenkins recalled that "the police cars just pulled up behind [them]" without activated lights or sirens.

¶ 10 Mok asked Witherspoon for his driver's license, which he gave. Mok asked all three occupants if they owned the car, and they all said they did not. After learning that, Mok had other officers take Jenkins and Davis out of the car. Witherspoon is paralyzed from the waist down; Mok allowed him to stay in the car.

¶ 11 Mok asked Witherspoon if any drugs were in the car. Witherspoon said, "There's no drugs in the car, go ahead and search it, it's not mine." At this point, Mok helped Witherspoon out. Mok then started to search the car. Witherspoon denied being asked about drugs and denied giving consent to search, saying that officers "[p]retty much just start[ed] tearing the car up" from front to back right when they got to the car.

¶ 12 Mok started his search "from the front passenger side and worked [his] way towards the back compartment." He did not find any drugs or contraband in the front area. He overheard a sergeant talking to Witherspoon, "trying to convince Mr. Witherspoon to tell [them] where the drug location was." At that point, Mok said that Witherspoon made either a "gesture" or an "eye movement" to "make some sort of indication to [Mok] that, without being too specific, that there [was], you know,

147 N.E.3d 718

439 Ill.Dec. 43

the contraband in the back seat [sic ]." According to Mok, Witherspoon was "nodding his head towards the side of the—the rear side of the vehicle with eye movement as well as, you know, whispering that it's over there."

¶ 13 Inspired by his communication with Witherspoon, Mok shifted his search to "the rear behind the driver's side." Mok noticed "a vinyl panel about the armrest," which he "pried open with [his] hand." Once he opened the panel, Mok could see that "there's a hidden compartment, you know, inside that location." Mok reached in and took out a white bag with an object "wrapped in black electrical tape." Mok believed the object was a kilogram of cocaine. The compartment also had three semiautomatic guns and an electronic scale. Then Mok opened another panel on the rear passenger side. He found another compartment with a green bag containing 9-millimeter and .45-caliber rounds of ammunition.

¶ 14 Before trial, Davis filed a motion to suppress all the evidence found in the Honda. He argued that there was no basis for the stop, it was illegal, and that any consent Witherspoon gave was tainted by the stop's illegality. Davis's counsel also argued that, even if it was not an illegal stop, the search exceeded the scope of the stop's purpose. The trial court pressed the State on the consent issue, and the State argued (among other points) "that this was a consent, a valid consent stop, and the stop itself is supported by the observations and experience of the officer." The trial court denied the motion, finding that the officers conducted a valid Terry stop (see Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ) based on their observations of the interaction between Witherspoon and Urbina. As to consent, the trial court denied the motion, finding: "I believe the police officer. I believe that Mr. Witherspoon gave consent to the officer to search the vehicle. The officer searched the vehicle and recovered the contraband."

¶ 15 Also before trial, the State moved "[t]o allow the People to introduce the three handguns that were recovered at the same time as the kilogram of cocaine." The State sought admission of the gun evidence on the ground that it was relevant to prove Davis's intent to deliver the drugs. The State also contended that the evidence was not cumulative of Davis's statement because Davis would deny making the statement and the gun evidence helped prove up the statement, which also contained an admission about the guns. Defense counsel argued that the gun evidence would be "overkill" as...