People v. Ortiz

• Citation: 738 N.E.2d 1011,250 Ill.Dec. 542,317 Ill.App.3d 212
• Decision Date: 01 November 2000
• Docket Number: No. 4-00-0187.,4-00-0187.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Joel ORTIZ, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

738 N.E.2d 1011

317 Ill.App.3d 212

250 Ill.Dec. 542

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Joel ORTIZ, Defendant-Appellee.

No. 4-00-0187.

Appellate Court of Illinois, Fourth District.

November 1, 2000.

John P. Schmidt, State's Attorney, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, James C. Majors, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Joel Ortiz, Aurora, Pro Se.

Justice GARMAN delivered the opinion of the court:

In November 1999, the State charged defendant, Joel Ortiz, with possession of more than 5,000 grams of a substance containing cannabis and with the knowing intent to deliver the same. 720 ILCS 550/4(g), 5(g) (West 1998). Defendant filed a motion to quash the arrest and suppress the cannabis that served as the basis for the charge. The trial court granted defendant's motion. The State filed this interlocutory appeal pursuant to Supreme Court Rule 604(a)(1) (145 Ill.2d R. 604(a)(1)). On appeal, the State argues that the trial court's order granting defendant's motion to quash the arrest and suppress the evidence was manifestly erroneous. We affirm.

I. BACKGROUND

At the hearing on defendant's motion to suppress, Officer Michael Jennings testified that he has been with the Illinois State Police for 10 years. He is a drug interdiction instructor and a member of the District 9 Drug Interdiction Team, a program sponsored by the Drug Enforcement Agency (DEA). The program, designated the Valkyrie program, has assigned four teams within the Department of State Police to four highways designated by authorities as the most commonly used drug thoroughfares. Jennings has learned through training and the program certain indicators of drug trafficking, including certain types of vehicles, hidden compartments, and body language, and the law pertaining to search and seizure.

On November 26, 1999, Jennings was patrolling Interstate 55 (I-55), a "major drug thoroughfare," and had two members of an international drug interaction unit from Oman and Costa Rica with him.

As Jennings was traveling northbound in the right lane, he noticed a Chevy pickup pass on the left. Jennings testified that he routinely sets his cruise control at 54 miles per hour and had done so that day. When the truck passed him, he noticed that the truck slowed down a little, the driver looked at him, there were mattresses on top of a tarp in the bed of the pickup, and it had a "D" license plate. Jennings stated that it was "odd" to him that the license had a "D" since most trucks are registered as "B" plates; however, the "D" plate was not illegal. Jennings further testified that he had made seizures in the past where furniture and mattresses were used to secure contraband, but there was nothing illegal or unusual about carrying mattresses in and of itself.

Jennings then called in the license plate and learned that the vehicle was registered to an Aldofo Ferrer of Aurora, Illinois. Jennings testified he found that "interesting" because most "D" plates are registered to a commercial business rather than an individual. The "D" plate, the mattresses, and the Aurora registration "tweaked" his interest. He testified that "it was a vehicle that would be interesting to stop and see if [he] could find out more information on it." After pacing the vehicle for 1½ miles, Jennings decided to stop the truck for speeding.

The officer exited his squad car and approached the passenger side of the truck. Jennings informed defendant, the driver, that he had been stopped for speeding. Defendant replied that he was only going 70 miles per hour and had been moving with the flow of traffic. Jennings informed him that he "wasn't going to write him a ticket but he needed to slow down." He then asked defendant for his driver's license and insurance information, which defendant provided. The officer then asked defendant where he was headed, to which defendant replied he was coming from St. Louis, was having troubles with his girlfriend, had gone to pick up furniture, and was moving back to Aurora. Jennings also asked if he owned the vehicle. Defendant replied the truck belonged to a friend. When asked the name of the friend, defendant reached for a document and read the owner's name from it. According to Jennings, the above facts were significant to him because in the past 18 months to 2 years, there have been many major drug seizures where the point of destination was reported as Aurora and 95% of interdictions are made on third-party vehicles where the owner is not present.

During the conversation, the officer observed another person lying in the rear of the cab with a coat over his head and shoulders. The person (later identified as Davis), eventually sat up. The officer assumed the person had been sleeping and asked him for his driver's license. Jennings then went back to the squad car. The initial approach to defendant's vehicle took about 2½ to 3 minutes.

Jennings ran a criminal history check on defendant and Davis. The inquiries lasted three to five minutes. Jennings learned that defendant had a valid driver's license and no outstanding warrants. Davis had a criminal history consisting of arrests for forgery and possession of controlled substances. Upon learning Davis' criminal history, Jennings decided to obtain a canine unit. He learned that a canine was within three miles and requested its assistance. The canine arrived within 10 minutes of the call—after Jennings completed the written warning, but before he finished explaining the procedures and requirements for a canine "walk around" to the dignitaries riding with him. Jennings testified that he had not received criminal history information on defendant, nor completed his paperwork, when the canine officer arrived. Furthermore, Jennings testified that the traffic stop was not "elongated" or "stalled out" because of his request for the canine.

The officer then walked to the back of the truck and motioned for defendant to exit his vehicle. Jennings did this because he was "a little uncomfortable" about the other person in the truck, and he wanted to speak with the two parties separately.

Jennings issued defendant a warning and returned his license. The officer testified that, at this time, the traffic stop was complete. However, Jennings asked defendant if he would answer some questions before he left. Defendant responded, "Sure." Jennings testified that there was no hesitancy in defendant's voice; defendant was cooperative. Then, Jennings explained to defendant that he was involved in a drug interdiction unit that is working on a major drug thoroughfare. Jennings further explained that because defendant was traveling to Aurora, a "hotbed" for drugs, and the owner of the truck was not present, both common indicators of drug trafficking, he wanted defendant's consent to search the truck. Defendant responded by stating, "It is not my truck." Jennings replied that defendant had authority to give consent because he was in actual physical control of the vehicle. Defendant then asked, "Do I have to? Can I refuse?" Jennings told defendant he had a right to refuse. Defendant then refused.

Jennings turned to the canine officer and told him defendant was refusing consent. He then told defendant the canine officer would walk the police dog around the truck. Jennings testified that, although he had not told defendant he was free to leave, he would have let defendant leave. At the preliminary hearing, the officer acknowledged that he had testified as follows:

"Q. And then you asked him whether you could search the vehicle?

A. Yes.

Q. Did you ask him any other questions besides that?

A. Not that I can remember.

Q. And he refused?

A. Yes.

Q. At which point you indicated that you needed him to wait for a canine?

A. No, there was no waiting. While the canine was present, I told him that I was going to have a canine walk around his vehicle.

Q. But he was detained at that point?

A. Yes, you could call it that."

Jennings asked Davis to exit the vehicle and told him, "We are conducting a walk around search of the vehicle." Jennings proceeded to pat Davis down for weapons and asked him where he was coming from and where he was going. Less than a minute later the canine alerted. The officer obtained the keys for the bed of the truck and discovered 740 pounds of cannabis. Jennings testified that less than a minute elapsed between defendant's refusal to consent and the beginning of the walk around. The walk around itself took less than two minutes.

Joel Ortiz testified that he was stopped for speeding at approximately 10:45 a.m. There was a male passenger sleeping in the backseat of his truck. The officer approached the vehicle and asked him if he had been speeding. Defendant replied that he was going about 70 miles per hour, whereupon Jennings stated that defendant was going 74. The officer then asked defendant for his driver's license and insurance; defendant provided both. Jennings inquired as to whose vehicle it was. Defendant replied that it was his cousin's vehicle, Adolfo Ferrer. His cousin's name was on the insurance papers.

Defendant testified that the officer returned to his squad car and remained there for at least five minutes. Jennings then approached the back of the truck and told defendant to step out. The officer informed defendant that he was going to issue him a warning ticket and he could leave after that, but then stated, "Can I ask you for a couple of questions?" Defendant answered "Sure." Jennings then asked if he could search the truck. Defendant told the officer no because defendant did not own the vehicle. He asked Jennings if he had a right to refuse the search and the officer told him he did. However, Jennings said that, if defendant refused, the officer could bring the canine to walk around the car. Defendant testified that he did not feel free to leave the scene. After the refusal, Jennings told def...