People v. James, 3-05-0172.

• Decision Date: 16 June 2009
• Docket Number: No. 3-05-0172.,3-05-0172.
• Citation: 910 N.E.2d 168,391 Ill. App. 3d 1045
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Orlando M. JAMES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

910 N.E.2d 168

391 Ill. App. 3d 1045

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Orlando M. JAMES, Defendant-Appellant.

No. 3-05-0172.

Appellate Court of Illinois, Third District.

June 16, 2009.

Thomas A. Karalis (argued)(Court Appointed), Office of State Appellate Defender, Ottawa, IL, for Appellant.

Terry A. Mertel, Deputy Director State's Attorneys Appellate Prosector, Gary F. Gnidovec (argued), State's Attorneys Appellate Prosecutor, Ottawa, IL, Terence M. Patton, State's Atty., Cambridge, IL, for Appellee.

Justice SCHMIDT delivered the opinion of the court:

The defendant, Orlando M. James, was charged with unlawful possession of cocaine with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of cocaine (720 ILCS 570/402(a)(2)(B) (West 2002)). The trial court denied his motion to suppress the evidence. In a bench trial, the court found the defendant guilty on both counts. The court ruled that the latter count merged into the former and sentenced him, inter alia, to 17 years of imprisonment and to pay a $3,000 drug assessment fee. On appeal, the defendant argued that: (1) the trial court erred by denying his motion to suppress; and (2) he is entitled to a $5-per-day credit against his drug assessment fee for the days he was in presentence incarceration. In a 2007 order, this court, with one justice dissenting, reversed and remanded on the motion to suppress issue. People v. James, No. 3-05-0172 (2007) (unpublished order under Supreme Court Rule 23). In doing so, the majority relied on the "scope of the stop" prong of People v. Gonzalez, 204 Ill.2d 220, 273 Ill.Dec. 360, 789 N.E.2d 260 (2003). The State sought review of that order in the supreme court.

On November 26, 2008, the Illinois Supreme Court issued a supervisory order directing us to vacate the 2006 order, and to reconsider in light of People v. Cosby, 231 Ill.2d 262, 325 Ill.Dec. 556, 898 N.E.2d 603 (2008). People v. James, 229 Ill.2d 681, 324 Ill.Dec. 841, 896 N.E.2d 1060 (2008). Accordingly, we hereby vacate the 2007 order. Upon reconsideration, we affirm as modified.

I. BACKGROUND

At the hearing on the motion to suppress, Henry County Deputy Sheriff Glenn Hampton testified that, during the early morning hours of November 14, 2002, he observed a car following another vehicle too closely on Interstate 80. Hampton stopped the car, which was driven by Anthony Oliver, and in which the defendant was the only passenger.¹

Hampton said that he approached the driver's side of the vehicle and asked Oliver for his driver's license. Oliver gave Hampton an Illinois state identification card. The officer placed Oliver in the passenger seat of the squad car while he ran a background check on Oliver's card. The dispatcher informed Hampton that Oliver did not have a valid Illinois driver's license.

In response to Hampton's questions, Oliver stated that he had problems with his license because of an error by the Secretary of State's office. Hampton did not arrest Oliver, but instead told him that he needed to resolve the situation with the Secretary of State's office.

At some point while Oliver was in the squad car, Hampton approached the defendant to determine whether he had a valid driver's license. The defendant told Hampton that he did not have his driver's license with him. The defendant provided Hampton with his name and date of birth.

Using this information from the defendant, Hampton ran a background check to determine whether the defendant had a valid driver's license. The dispatcher informed Hampton that the defendant had a valid license and that he was on mandatory supervised release from the Department of Corrections. Hampton was not told why the defendant had been incarcerated. After Hampton received the information regarding Oliver, the vehicle, and the defendant, Hampton returned Oliver's card and informed him that he was free to go, but only if the defendant drove the car.

Then, Hampton asked Oliver if there were any weapons or contraband in the vehicle. Hampton testified that he was suspicious of "a very strong smell of an aroma, of some sort of fragrance, real strong," coming from inside the vehicle. Hampton stated that vehicles transporting illegal drugs sometimes use strong fragrances as masking agents.

Oliver told Hampton that there were no weapons or contraband in the vehicle. In response, Hampton asked Oliver whether he was certain of that. Oliver said that he was certain, but also told Hampton that he could search the vehicle if he wished. Hampton took Oliver's statement as consent to search the vehicle.

Hampton next approached the passenger side of the vehicle and asked the defendant to exit the vehicle. Hampton told the defendant that Oliver had consented to a search of the vehicle and also asked the defendant for consent to search. According to Hampton, the defendant consented.

Next, Hampton told Oliver to stand at the front of the car he had been driving. The officer also told the defendant to stand at the front of the squad car, which was situated behind the vehicle in which he had been the passenger. Hampton then searched the interior of the car. The only item Hampton found in the passenger compartment was a liquor bottle containing the fragrance that was emanating from the vehicle.

Hampton then asked both the defendant and Oliver for their consent to search the trunk. At this point, both Oliver and the defendant were still at the respective locations where they previously had been told to stand by Hampton. Both the defendant and Oliver gave their consent to search the trunk. During this search, Hampton found a plastic baggie containing cocaine in a wheel well of the trunk.

Oliver later gave a voluntary written statement to Hampton, stating that he was taking the cocaine to a party, but that he did not intend to sell the cocaine. He also stated that he was "ready to leave the streets" and to give up using drugs.

Oliver testified that he was driving the car on Interstate 80 on the morning in question. The defendant was in the passenger's seat. The vehicle belonged to the defendant's wife. Oliver stated that he was in the left lane, passing a truck that was in the right lane. Hampton's squad car was turning around in a U-turn area on the interstate. Oliver passed Hampton, and Hampton began to follow the vehicle. Hampton then pulled the car over.

Hampton approached the driver's side and asked Oliver for his license. Oliver responded that he only had a state identification card because someone in Connecticut had been using his name. Hampton then placed Oliver in the squad car.

Hampton ran a background check on Oliver's card, which came back as suspended. Hampton exited the squad car and approached the defendant, who gave Hampton his information orally because he did not have his driver's license with him. Hampton returned to the squad car and ran a background check on the defendant's information. Hampton then returned Oliver's card and told him that he was free to go. Oliver stated that he felt free to go at that point.

Hampton next informed Oliver that he was going to search the vehicle, and that, if there was nothing illegal in the vehicle, the defendant would have to drive. Hampton then asked Oliver if there were guns or drugs in the vehicle. Oliver said Hampton never asked him whether he could search the vehicle. Oliver stated that his door was locked and that he no longer felt free to leave after Hampton said he was going to search the vehicle.

Hampton exited the squad car and approached the defendant, whom he asked to exit the vehicle. Hampton returned and asked Oliver to exit the squad car. Hampton placed Oliver at the front of the vehicle and the defendant at the rear. Hampton then began to search the vehicle.

After Hampton searched the passenger compartment, he opened the trunk and began to search it. Oliver stated that Hampton did not ask him for consent to search the trunk and that he did not hear Hampton ask the defendant for consent to search the trunk.

During his search of the trunk, Hampton rose up with his gun drawn and told Oliver to "freeze" and to put his hands on his head. Hampton then made Oliver walk around to the back of the vehicle, where he cuffed Oliver and the defendant.

Oliver stated that his written statement was untrue. He stated that Hampton told him what to write because he wished to "impress the State" in order to get the intent charge dropped. Additionally, Oliver stated that Hampton encouraged him to talk to the defendant regarding the incident to ensure they had the same version of what happened. In rebuttal, Hampton denied telling Oliver what to write and denied encouraging Oliver to talk to the defendant regarding the incident.

The defendant testified that, on the morning in question, he was the passenger in his wife's vehicle. Oliver was driving. Hampton pulled them over and approached the driver's side of the vehicle. Oliver rolled the window down, and Hampton said he pulled the car over for following another vehicle too closely.

Oliver gave Hampton a state identification card, and Hampton took Oliver back to the squad car while he ran the check on Oliver's card. About 10 minutes later, Hampton approached the defendant and asked him for his driver's license. The defendant said that he had a license, but that he did not have it on him. The defendant then gave Hampton his personal information, and Hampton returned to the squad car.

Hampton returned about 10 minutes later with Oliver walking slightly behind him. Hampton asked the defendant to exit the vehicle and told Oliver to go to the front of the vehicle. Hampton then asked the defendant if he had any contraband on him, to which the defendant said, "No." Hampton asked for and received the defendant's consent to search his person. Hampton then placed the defendant at the rear of the vehicle.

Next, Hampton began searching the vehicle's interior. The defendant stated...