People v. Moorman, 2-04-1212.

• Decision Date: 29 November 2006
• Docket Number: No. 2-04-1212.,2-04-1212.
• Citation: 859 N.E.2d 1105,307 Ill.Dec. 428
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy G. MOORMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

859 N.E.2d 1105

307 Ill.Dec. 428

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Roy G. MOORMAN, Defendant-Appellant.

No. 2-04-1212.

Appellate Court of Illinois, Second District.

November 29, 2006.

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Thomas A. Lilien, Deputy Defender (Court-appointed), Office of State Appellate Defender, Elgin, and Robert O. Ackley(Court-appointed), Law Offices of Robert O. Ackley, Mundelein, for Roy G. Moorman.

Joseph E. Birkett, Du Page County State's Attorney, Lisa A. Hoffman, Assistant State's Attorney, Wheaton, Martin P Moltz, Deputy Director, Diane L. Campbell, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Presiding Justice GROMETERdelivered the opinion of the court:

Defendant, Roy G. Moorman, appeals the judgment of the circuit court of Du Page County finding him guilty of possession of a controlled substance (720 ILCS 570/402(c)(West 2002)).He raises two allegations of error.First, defendant argues that the trial court erred in denying his motion to suppress physical evidence and a statement he made.He also contends that he was not proven guilty beyond a reasonable doubt.For the reasons that follow, we affirm.

Before proceeding further, we remind defendant's appellate counsel of the necessity of complying with the supreme court's rules governing the form and content of appellate briefs.Rule 341(e)(7) requires that the argument section include citation to the portions of the record relied upon.Official Reports Advance SheetNo. 21(October 17, 2001), R. 341(e)(7), eff. October 1, 2001.Additionally, Rule 341(d) provides that "[c]itations shall be made as provided in Rule 6."Official Reports Advance SheetNo. 21(October 17, 2001), R. 341(d), eff. October 1, 2001.Rule 6 states that "[c]itations of cases must be by title, to the page of the volume where the case begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited."145 Ill.2d R. 6.We caution that the failure to comply with these rules can result in sanctions, including deeming an argument waived.SeeChicago Title & Trust Co. v. Weiss,238 Ill.App.3d 921, 927-28, 179 Ill.Dec. 78, 605 N.E.2d 1092(1992)(noting that violation of Supreme Court Rule 341(d), which incorporates Supreme Court Rule 6, can result in waiver of an argument).

I.BACKGROUND

The present appeal arises out of a traffic stop following which defendant admitted to possessing a quantity of cocaine.Du Page County Deputy SheriffChris O'Brochta was assisting undercover detectives from the Addison police department in an operation where the undercover officers conducted surveillance of the Bradford Court Apartments in Addison.The apartment complex is known as a high-crime, high-drug, and high-gang-activity area.The undercover officers would radio to supporting officers, like O'Brochta, and inform them of any vehicles whose occupants met with suspected drug dealers.The supporting officers would then follow the vehicle and look for traffic violations so that the vehicle could be stopped.

On April 14, 2003, Detective Raysby, who did not testify at trial or during the hearing on defendant's motion to suppress, radioed O'Brochta and informed him that a silver Kia had just left the apartment complex.The Kia was defendant's vehicle.O'Brochta followed it, and, upon noting that the license-plate sticker on the vehicle was expired, initiated a traffic stop.O'Brochta approached the vehicle and asked defendant to produce his driver's license.O'Brochta and defendant both testified that, at that time, defendant informed O'Brochta that his license was revoked.They disagree as to whether O'Brochta told defendant why he was stopped.According to defendant, O'Brochta asked him whether there were any drugs in the vehicle.O'Brochta then told defendant to exit the vehicle and directed him to stand at its rear.

Detective Gilhooley, who was also supporting the operation, arrived at this time.He stood with defendant at the rear of the vehicle, and O'Brochta approached the passenger.Gilhooley asked defendant whether there were any drugs in the car.O'Brochta told the passenger that he knew she had just left the Bradford Court Apartments and had met with suspected drug dealers.The passenger mumbled, did not make eye contact, and avoided responding.Upon being asked whether she and defendant had purchased drugs, she nodded affirmatively.O'Brochta asked her to give him the drugs, and she produced a bag of white "rock powder" from her mouth.O'Brochta held up the bag so that Gilhooley could see it.O'Brochta spoke with the passenger for about 30 seconds.According to Gilhooley, who was speaking with defendant while O'Brochta questioned the passenger, defendant admitted that the drugs belonged to him when O'Brochta displayed the bag.Defendant also stated that he had given the drugs to his girlfriend to hide in her mouth while they were being pulled over.Defendant's conviction rests largely on this admission.After speaking with the passenger, O'Brochta went to his squad car to run defendant's driver's license.This confirmed defendant's statement that his license had been revoked, and defendant was placed under arrest.

Defendant's version of events differs somewhat from that of the two police officers.For example, he contends that he was handcuffed and placed in the squad car much earlier than the officers indicate, that he was almost immediately questioned about drugs, and that the encounter lasted much longer than the officers indicate.However, the trial court, following both the suppression hearing and the trial, found defendant's testimony to lack credibility.Given the inconsistencies in defendant's testimony, which the trial court pointed out, we cannot say that this finding was erroneous.We will discuss additional facts and testimony as necessary to resolve the issues defendant raises.

II.ANALYSIS

Defendant raises two issues on appeal.First, he argues that the trial court should have suppressed the narcotics recovered from the passenger, because the police exceeded the scope of a proper Terry stop (seeTerry v. Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)) under the circumstances.He also makes a related argument that the statement he made to Gilhooley should have been suppressed as the fruit of that alleged illegality and also because the statement was coerced.Second, defendant asserts that he was not proven guilty beyond a reasonable doubt.We disagree with both contentions.

A.Motion to Suppress

In reviewing the denial of a motion to suppress, we will accept the factual findings of the trial court so long as they are not contrary to the manifest weight of the evidence.People v. Lewis,363 Ill. App.3d 516, 523, 300 Ill.Dec. 618, 845 N.E.2d 39(2006).The ultimate issue of whether police conduct comported with the strictures of the fourth amendment(U.S. Const., amend.IV) is, however, subject to de novo review.Lewis,363 Ill.App.3d at 523, 300 Ill.Dec. 618, 845 N.E.2d 39.The same two-tiered standard applies to the voluntariness of a confession.In re G.O.,191 Ill.2d 37, 50, 245 Ill.Dec. 269, 727 N.E.2d 1003(2000).As always, questions regarding the credibility of witnesses, the resolution of evidentiary conflicts, and the determination of the amount of weight to which evidence is entitled are primarily the responsibility of the trier of fact, and a court of review typically will not substitute its judgment on such matters.People v. Brooks,187 Ill.2d 91, 132, 240 Ill.Dec. 607, 718 N.E.2d 88(1999).With these standards in mind, we now turn to the substance of defendant's arguments.

We will first consider whether the police exceeded the scope of a proper Terry stop in their handling of defendant.The fourth amendment to the United States Constitution permits only those seizures that are reasonable.People v. Gherna,203 Ill.2d 165, 181, 271 Ill.Dec. 245, 784 N.E.2d 799(2003).Stopping an automobile constitutes a seizure, the permissibility of which is analyzed in accordance with Terry.People v. Mendoza,364 Ill.App.3d 564, 569, 301 Ill.Dec. 207, 846 N.E.2d 169(2006).The analysis consists of two steps: we must first consider whether the stop was justified at its inception and second ascertain whether it was reasonable in scope given the circumstances that justified the stop in the first instance.People v. Moss,217 Ill.2d 511, 527, 299 Ill.Dec. 662, 842 N.E.2d 699(2005).In this case, there is no dispute that the stop was justified at its inception, in that O'Brochta observed an expired license-plate sticker on the vehicle that defendant was operating.Defendant's argument, then, turns on the second portion of the analysis.Determining whether police questioning that occurs during the course of a traffic stop is reasonable in scope requires a three-part analysis.People v. Gonzalez,204 Ill.2d 220, 235, 273 Ill.Dec. 360, 789 N.E.2d 260(2003).First, if the questioning is reasonably related to the purpose of the stop, it is permissible and the inquiry terminates.Gonzalez,204 Ill.2d at 235, 273 Ill.Dec. 360, 789 N.E.2d 260.Second, if the questioning is not reasonably related to the purpose of the stop, we must consider whether a reasonable and articulable suspicion exists to justify it.Gonzalez,204 Ill.2d at 235, 273 Ill.Dec. 360, 789 N.E.2d 260.If no such suspicion exists, we must then consider whether, given the totality of the circumstances, the questioning "impermissibly prolonged the detention or changed the fundamental nature of the stop."Gonzalez,204 Ill.2d at 235, 273 Ill.Dec. 360, 789 N.E.2d 260.

Clearly, questioning defendant about drugs was completely unrelated to the observed violation—an expired license-plate sticker—that provided the basis for the stop.It was also unrelated to defendant's admission that he was driving while his license was revoked.Thus, we must consider whether the police had a...