People v. Mendoza, 5-91-0467

• Decision Date: 17 September 1992
• Docket Number: No. 5-91-0467,5-91-0467
• Parties: , 175 Ill.Dec. 361 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jose MENDOZA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1375

599 N.E.2d 1375

234 Ill.App.3d 826, 175 Ill.Dec. 361

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jose MENDOZA, Defendant-Appellee.

No. 5-91-0467.

Appellate Court of Illinois Fifth District.

Sept. 17, 1992.

Paula Phillips, State's Atty., Effingham, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S. Mitchell, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellant.

Daniel M. Kirwan, Deputy Defender, Lawrence J. O'Neill, Asst. Defender, Office of the State Appellate Defender, Vernon, for defendant-appellee.

Justice WELCH delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court of Effingham County, entered June 10, 1991, suppressing evidence consisting of over 15 pounds of cannabis found in the gas tank of defendant's automobile. We reverse the suppression order and remand this cause for prosecution.

On January 24, 1991, defendant, Jose Luis Mendoza, was charged by information with the offenses of unlawful possession of cannabis (Ill.Rev.Stat.1989, ch. 56 1/2, par. 704(e)), unlawful possession with intent to deliver cannabis (Ill.Rev.Stat.1989, ch. 56 1/2, par. 705(e)), unlawful possession of cannabis without cannabis tax (Ill.Rev.Stat.1989, ch. 120, par. 2160), and cannabis trafficking (Ill.Rev.Stat.1989, ch. 56 1/2, par. 705.1).

Hearing on defendant's motion to suppress was held on April 29, 1991. The following evidence was adduced. The defendant, a Mexican, does not understand the English language. An interpreter was appointed to assist him in court. The defendant called as an adverse witness Illinois State Trooper Marla Sapp. She had been on duty from 7 a.m. until 3 p.m. on January 23, 1991. At approximately 9:40 that morning she observed a vehicle owned by defendant. Sapp followed that vehicle for five to seven miles. Defendant was a passenger in the vehicle. The vehicle had Texas license plates.

Sapp stopped the vehicle because the driver's view was obstructed by fuzzy dice and several other items hanging from the rear-view mirror in violation of section 12-503(c) of the Illinois Vehicle Code. (Ill.Rev.Stat.1989, ch. 95 1/2, par. 12-503(c).) The driver of the vehicle was Indelacio Valencia, defendant's cousin. Sapp did not observe the vehicle violate any other traffic laws. Sapp testified that, while the dice did not obstruct the driver from seeing out his rear-view mirror, they could have obstructed his view out the front window. In Sapp's opinion the objects hanging from the rear-view mirror materially obstructed the driver's view. Sapp had made several arrests for obstruction of view during her five years with the Illinois State Police, the last time being a week and a half before the hearing. Sapp issued Valencia a warning ticket for driving with an obstructed view.

Sapp asked Valencia if she could search the vehicle. She was suspicious because there was a map in the car and Valencia and Mendoza seemed nervous. Also, when she asked Valencia whether he had ever been arrested before, Valencia lied and told her he had not. Sapp had already checked Valencia's criminal history over her car radio. Further, defendant's car was being followed by a car owned by Valencia. This other car did not stop when Valencia was pulled over. This also raised Sapp's suspicions. When Sapp asked Valencia for consent to search, Valencia was seated in Sapp's vehicle. Sapp knew that Valencia was not the owner of the vehicle, but that defendant was. Sapp did not speak with defendant because she did not speak Spanish and defendant did not speak English.

Sapp radioed for assistance from Sergeant Oliverio. Troopers are not permitted to search a vehicle without assistance. Sapp had first contacted Trooper Daniels, who arrived but could not stay. Sapp did not contact these other troopers until after she had stopped defendant's vehicle.

Sapp identified the written consent to search form which she had used in this instance. It is written in English on one side and in Spanish on the other side. Valencia consented verbally to the search and also signed the Spanish side of the consent-to-search form.

When Trooper Oliverio arrived, he asked Valencia to translate his English to defendant and translate defendant's Spanish to him. Defendant indicated that he could read and write Spanish, and he was given a written consent-to-search form.

The troopers then conducted a search of defendant's vehicle. While they did not find any drugs, they did find evidence that the gas tank on the vehicle had been removed. There were fresh scratches on the tank and the dust on the straps which held it to the vehicle had been disturbed. The gas tank was leaking and there was an extra can of gas and some hoses in the vehicle. Trooper Oliverio asked Valencia and defendant if he could conduct a further search of the gas tank. Both Valencia and defendant agreed. Valencia and defendant were free to refuse and leave.

The vehicle was driven to a nearby service station, where it was placed on a hoist or lift. Valencia and defendant remained in the garage area with the vehicle. The gas tank was removed from the car and lowered to the ground. By shining a flashlight inside the gas tank, Sapp could see metal containers inside the tank. The troopers never sought any additional consent specifically to remove the gas tank or look inside it. Sapp testified, however, that Valencia and defendant knew that that was the trooper's intention.

After the troopers viewed the metal containers inside the gas tank, Valencia and defendant were taken to police headquarters. The gas tank was taken to a nearby welding shop, where it was cut open. The metal containers were also cut open and were found to contain marijuana.

State police Sergeant Oliverio was also called as an adverse witness by defendant. He responded to a call for assistance from Trooper Sapp on January 23, 1991. Sapp did not call Oliverio until after she had stopped defendant's vehicle. Oliverio identified the written consent-to-search form used in this instance. The form gives consent to search the entire vehicle including luggage and the contents thereof. Oliverio thinks that the entire vehicle includes the gas tank.

Upon searching the vehicle, Oliverio determined that the gas tank had been removed from the vehicle. Valencia and defendant were free to go even after this search because no contraband had been found. Oliverio advised Valencia that he and defendant were not under arrest. Valencia indicated that he understood that. Oliverio asked Valencia to tell defendant the same thing and to tell defendant that Oliverio was interested in the gas tank specifically. Oliverio believed that Valencia did correctly translate to defendant because defendant's responses were appropriate. Oliverio asked defendant about the gas tank. Oliverio asked if he could inspect the gas tank closer by taking the vehicle to a service station and lifting it. Valencia talked with defendant, received a positive response and agreed to follow Oliverio to the service station. While Oliverio may not have told defendant expressly that he was going to remove the gas tank from the car, that was certainly implied by his explanation that he wanted to look more closely at the gas tank. Defendant knew that Oliverio was looking for contraband. Valencia and defendant followed Oliverio to the service station of their own free will. They were not under arrest. Oliverio was certain that defendant knew he was going to remove the gas tank. Defendant observed while Oliverio removed the gas tank. Neither defendant nor Valencia ever raised any objection to Oliverio removing the gas tank.

After removing the gas tank from the vehicle, Oliverio inserted his expandable baton inside it and felt the metal containers. He knew that they were not factory equipment. Through his experience and training, Oliverio recognized them as a way to smuggle contraband. Oliverio directed that Valencia and defendant be placed under arrest. Oliverio felt at this point that he had probable cause to arrest defendant based on his training and experience.

The gas tank was taken to a welding shop where it was opened. The containers were removed and opened.

On cross-examination by the State, Oliverio testified that he felt Valencia correctly translated to and from defendant because of defendant's responses. When Oliverio asked Valencia and defendant to follow him to a service station, he made it clear that they were free to refuse and leave. Oliverio did not believe that defendant did anything against his will. Valencia and defendant followed Oliverio to the service station.

Oliverio was alerted by the gas tank for several reasons. It had a small leak which had been patched. The dust line on the straps which held it to the car had been disturbed, indicating that the straps had been moved recently. There were some scratches on the bottom of the tank which were not front to rear, but side to side. This is consistent with a gas tank having been removed from the car and placed on the ground to be worked on. The dust was also disturbed around the bolts which held the straps to the car. The nuts themselves had fresh tool marks on them, showing that they had been removed recently. The fact that the vehicle was also carrying a gas can and hoses indicated a possibility that something was concealed in the gas tank. The area of the gas tank which can hold gas is reduced because of the concealed items, so extra gas is carried.

While at the service station, defendant appeared to be very nervous. He was extremely stressed. After lowering the gas tank from the car, but before removing it, Oliverio observed a nonfactory weld on the tank. It appeared that the tank had been cut in half and then welded back together. He had observed the same thing in other contraband concealment cases. The welding was not done for purpose of repair.

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