People v. Ocampo

• Decision Date: 30 October 2007
• Docket Number: No. 2-06-0556.,2-06-0556.
• Citation: 879 N.E.2d 353,377 Ill. App.3d 150
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Tomas OCAMPO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

879 N.E.2d 353

377 Ill. App.3d 150

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Tomas OCAMPO, Defendant-Appellee.

No. 2-06-0556.

Appellate Court of Illinois, Second District.

October 30, 2007.

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Catherine A. Voigt, Glen Ellyn, for the People.

Margaret M. O'Connell, Law Offices of Margaret M. O'Connell, Chicago, for Tomas Ocampo.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Tomas Ocampo, was charged with possession of a controlled substance with intent to deliver, in connection with an alleged incident in which police observed him enter into a drug transaction and subsequently discovered drugs after searching him. On August 29, 2005, defendant filed a motion to suppress asserting that he had been detained without probable cause, reasonable suspicion, or a warrant and that he had been searched without his consent. The State appeals the judgment of the trial court granting that motion. For the reasons that follow, we affirm.

At the hearing on defendant's motion to suppress, defendant first called Detective Robert Toerte of the Du Page County sheriff's office. Toerte testified that, on the afternoon of June 14, 2005, he was in plain clothes and on duty conducting surveillance on a residence when he went to a nearby gas station to refuel his automobile. He parked his car at the last gas pump on the east side of the gas station, and he saw a car park close to a nearby car wash while its driver talked on a cellular phone and looked around. The driver eventually moved the vehicle 15 to 30 feet to the east side of the gas station, so that the car was approximately 50 to 60 feet from Toerte's position at the gas pump. Toerte then saw defendant emerge from behind the gas station, "walk[] around the back side of the [car], tap[] on the trunk and [get] in on the passenger's side." Toerte stated that he did not notice if defendant was carrying a cellular phone.

Toerte then "noticed as [defendant] sat down [defendant and the driver] looked at each other and [defendant] sat back in the seat as though he was trying to remove something from his pants." Toerte did not hear either man say anything because the car windows were up, but the two men were "moving as though they were talking." He could not see anything below the two men's upper arms because his view was blocked by the car door, and, accordingly, he did not see the men exchange anything. When defendant got out of the vehicle after "less than two minutes," he did not have anything in his hands. Defendant walked back behind the gas station. Toerte did not know either defendant or the driver of the automobile and did not know of any outstanding arrest warrants for either man.

Toerte contacted the officers who were helping him on surveillance and asked them to come to the gas station because he suspected that he had just witnessed a narcotics transaction. Toerte approached the driver of the automobile and instructed the other officers to approach defendant. From his vantage point, Toerte could not see the other officers confront defendant. The officers later told Toerte that they had discovered illegal narcotics on defendant's person.

On cross-examination, Toerte stated that he was assigned to the undercover narcotics unit at the Du Page County sheriff's office and had been part of "[h]undreds" of undercover drug transactions inside vehicles. He estimated that drug dealers remove narcotics from their pants pockets approximately "[s]eventy percent of the time." Toerte testified that defendant's leaning back in his seat in the motor vehicle was "the same" as what he had observed in other in-vehicle drug transactions.

Defendant next called Detective Larry Rogers of the Du Page County sheriff's office. He testified that, at approximately 3:45 p.m. on June 14, 2005, after receiving a call from Toerte, he drove to a gas station approximately one-half mile from where he had been parked. As he arrived, Toerte informed him that Toerte suspected that defendant, who was walking away from a car, had taken part in a drug transaction inside the car. Rogers drove his car behind the gas station and parked "about fifty feet ahead of the subject," but he did not position his parked car in such a way that it would have impeded defendant's progress or cut defendant off. Rogers then exited his vehicle and approached defendant. Rogers "had [his] badge out in [his] hand and [he] told [defendant] [he] was a police officer and [he] needed to talk to him." Defendant "started shaking and told [Rogers] he was scared." On cross-examination, Rogers stated that he asked defendant for identification and that defendant produced a Mexican driver's license. Rogers recalled on cross-examination that he identified himself as a police officer in English and that defendant responded in English that he was scared. Rogers stated that defendant never indicated that he did not understand what Rogers was saying during the encounter.

Rogers never frisked defendant or pressed defendant against a wall, and, while he was present, neither he nor any other detectives threatened defendant. He did not advise defendant of his rights, and, though Rogers had a sidearm, it was hidden from defendant's view. Rogers could see no bulges in defendant's pants or shirt upon encountering him, and Rogers knew of no outstanding warrants for defendant's arrest.

After two more detectives arrived to question defendant, Rogers walked away to check with Toerte before returning to defendant and the two detectives. All three were "just standing around," and one of the detectives was holding a bag of white powder, which he told Rogers he recovered from the front of defendant's pants.

Defendant next called Detective Anthony Terranova of the Du Page County sheriff's office. He testified that, at approximately 3:45 p.m. on June 14, 2005, he received a call from Toerte while he was working undercover near the gas station described above. When he arrived at the gas station, he got out of his vehicle and walked toward Toerte, who told him that he believed that two other detectives were with defendant at the back of the gas station. Terranova saw the two detectives standing next to defendant, and, as he approached, Rogers told him that defendant was the suspect whom Rogers had stopped. On cross-examination, Terranova recalled that, when he first approached defendant, defendant was "motioning and holding his shirt area * * * where his pants belt buckle would be." Defendant was "just making movements towards that area and holding, just holding, hiding the area." Terranova testified that he believed that defendant was carrying either drugs or a weapon in that area.

After approximately two minutes, and as Rogers stood there, Terranova asked defendant if police could search him, and defendant agreed. On cross-examination, Terranova stated that he asked defendant, and defendant agreed, in both English and Spanish. When another officer, who was wearing a police uniform, searched defendant, a small baggie with four other clear plastic bags, each containing a white powdery substance, fell to the ground. On cross-examination, Terranova agreed that, when he initially approached defendant, the police officers who were with defendant were not threatening or harming defendant in any way.

On redirect examination, Terranova indicated that he did not recall if Rogers was present when Terranova asked for defendant's consent to perform a search.

Defendant next testified on his own behalf. At the outset of his testimony, defendant indicated that he spoke "[a] little bit" of English. (Defendant did not use a translator during his testimony at the hearing.) He testified that, on June 14, 2005, as he was walking behind a gas station, he was encountered by someone who identified himself as a police officer. Three more police officers arrived within a minute. The first officer showed his badge but did not say that he "needed to talk" to defendant. Rather, he asked defendant, "what did you buy and what did you give the other one?" Within two minutes of the first officer showing his badge, defendant was searched without consent, by an officer in plain clothes. On cross-examination, defendant denied that he had been putting his hands by his shirt or belt buckle before the officer searched him. He recalled that the officers spoke to him only in English, despite his telling them that he could not understand them.

After hearing argument from both sides, the trial court stated that it did not think the encounter between police and defendant was consensual, because police asked to talk to defendant and "they made it clear by their display of authority that they needed to talk to him, that he was being stopped for that purpose." The trial court stated that the question became whether police had a reasonable and articulable suspicion to justify the stop, and it held over its ruling on that issue until it was able to review the relevant caselaw. The memorandum opinion the trial court subsequently issued on May 8, 2006, stated as follows, in pertinent part:

"1. Defendant's initial encounter with [Rogers] was a non-consensual encounter. The court held that [Rogers's] display of his badge to the defendant and telling defendant `we need to talk' followed by the immediate arrival of three other officers on the scene would have led a reasonable person to conclude that [he was] not free to ignore the officer and walk away.

2. Based on the credibility of the witnesses the court held that after this encounter defendant did consent to the search of his person resulting in the discovery of the drug evidence now sought to be suppressed.

The question to be decided is whether there existed a basis for a Terry stop of the defendant. The court finds the facts...