People v. Pulido

• Decision Date: 16 August 2017
• Docket Number: Appeal No. 3-15-0215.
• Citation: 2017 IL App (3d) 150215,83 N.E.3d 1111
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Javier PULIDO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 150215

83 N.E.3d 1111

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Javier PULIDO, Defendant-Appellant.

Appeal No. 3-15-0215.

Appellate Court of Illinois, Third District.

Opinion filed August 16, 2017

Robert J. Kerr, of Law Offices of Robert Kerr, LLC, of Hinsdale, for appellant.

James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, Lawrence M. Bauer, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 Defendant, Javier Pulido, appeals his conviction, arguing that the trial court erred in denying his motion to suppress evidence recovered from a search of his vehicle. We reverse.

¶ 2 FACTS

¶ 3 The State charged defendant with unlawful possession of methamphetamine with intent to deliver ( 720 ILCS 646/55(a)(1), (a)(2)(F) (West 2012)) after narcotics were found in his vehicle on June 11, 2013.

¶ 4 Defendant filed a motion to suppress the evidence obtained from the traffic stop on the basis that he was illegally detained and the vehicle in which he was driving was illegally searched. Subsequently, the State filed a motion in limine to admit evidence of a transaction between defendant and an undercover Illinois State trooper six days before the traffic stop. Although the motions were handled in a different order, for clarity, we discuss the evidence adduced from the hearing on the State's motion in limine first.

¶ 5 I. Motion in limine June 5, 2013, Transaction

¶ 6 Sergeant Gil Gutierrez, an Illinois state trooper, testified that he was undercover and met defendant near the Illinois-Iowa border on June 5, 2013. The purpose of the meeting was to purchase methamphetamines from defendant. According to Gutierrez, he received information from a confidential informant and was given defendant's telephone number.

¶ 7 Gutierrez contacted defendant by telephone and arranged to meet with him. Defendant arrived in a 1998 tan Dodge minivan with Washington plates. When Gutierrez first observed defendant, the hood of the minivan was up and defendant was standing at the front of the vehicle. The two met in person and exchanged greetings. Defendant told Gutierrez to take a small tube of methamphetamine located "on the hood" of the minivan. Gutierrez did not see defendant remove the tube from any part of the minivan before placing it on the hood of the vehicle. No money was exchanged, and Gutierrez left the area with the drugs. Defendant was not detained.

¶ 8 Gutierrez later provided information of the transaction to Detective Mike Coppolillo but could not recall whether he provided Coppolillo with defendant's name or just the description of the vehicle.

¶ 9 Defendant objected to the admission of the June 5, 2013, transaction on the basis that it was other-crimes evidence. Defendant argued that the transaction occurred six days before defendant's eventual arrest. The trial court admitted the evidence, acknowledging it was prejudicial but finding that its probative value outweighed any prejudice.

¶ 10 II. June 11, 2013, Traffic Stop and Search

¶ 11 Detective Coppolillo testified that he was assigned to a multi-jurisdictional task force, NARCINT. On June 11, 2013, Coppolillo was contacted by Sergeant Gutierrez, who relayed information that defendant would be traveling to Illinois with a large quantity of narcotics. Coppolillo was told the vehicle was a tan Dodge minivan with a Washington registration. On cross-examination, Coppolillo testified that he was mistaken when he said that he had information on defendant. Coppolillo only had information on the vehicle description and the plates. Coppolillo did not know who was driving the vehicle, where the suspected drugs may have been located, or when the suspected narcotics were placed in the vehicle. Coppolillo forwarded this information to Trooper Degraff about 30 minutes prior to the traffic stop.

¶ 12 Degraff testified that he communicated with NARCINT agents on June 11, 2013. Degraff met with the agents at a truck stop near I-80. The agents provided Degraff with information about a vehicle, its license plate, and the type of drugs suspected to be inside the vehicle. Degraff forwarded this information to Illinois state trooper Josh Korando (who was working on I-80) and asked him to stop the vehicle.

¶ 13 Korando testified that around 7 p.m. on June 11, 2013, he was informed by Degraff that a tan Dodge minivan with Washington plates was carrying illegal narcotics. Korando did not have a warrant for defendant's arrest. Korando also did not have any information about the driver of the vehicle. Korando did not know what type of drugs were potentially involved or where inside the vehicle the suspected narcotics were located.

¶ 14 About an hour after receiving this information, Korando initiated a traffic stop of defendant's vehicle for speeding along I-80. Korando testified that he had tested and verified that his light detection and ranging device (LIDAR) was working properly at the start of his shift. The LIDAR showed that defendant was traveling seven miles per hour above the posted speed limit. Korando asked defendant about his travel plans and defendant told Korando that he was driving from Washington to New York. Korando asked for and received defendant's driver's license. According to Korando, defendant was sweating, but he did not observe any furtive movements. Korando also did not notice any unusual odors coming from defendant's vehicle. He could see inside defendant's vehicle, but did not observe any contraband. Korando then asked defendant to accompany him into his squad car.

¶ 15 While defendant and Korando spoke inside the squad car, Degraff arrived on the scene (about two minutes after the stop was initiated) with his canine, Rico. Degraff testified that he had training in canine recognition of narcotics and narcotics interdiction. Degraff had been partnered with Rico since February 2012. Rico trained at the Illinois State Police Academy from February to May 2012 to detect the odor of narcotics. Rico had participated in about 50 "real world" narcotics investigations. Rico is a passive alert dog and will alert by a change in body posture and breathing rate. Rico will give a final confirmation by sitting, laying, or standing staring. Rico was certified as a narcotics investigation canine in May 2012. The certification was valid for one year, but had expired May 2013, right before the June 11, 2013, search.

¶ 16 According to Degraff, he and Rico trained twice a month for 10 hours each day at different locations and diverse environments. Rico had broken his leg in October 2012, and did not train again until January 2013. Degraff did not keep records on Rico's accuracy in the field. Degraff stated that Rico had never alerted to a training blank (a room or vehicle that has never contained drugs).

¶ 17 While Korando and defendant were sitting inside Korando's squad car, Degraff deployed Rico and performed a free-air sniff of defendant's vehicle. Rico alerted on the driver's side door of the vehicle. Degraff interpreted this to mean there was an odor of narcotics.

¶ 18 As Degraff performed the free-air sniff, Korando ran defendant's information through Law Enforcement Agencies Data System (LEADS) and determined that defendant had a valid driver's license and no outstanding warrants. Korando then issued a speeding warning to defendant for driving seven miles per hour over the speed limit. The warning was not presented at the motion to suppress.

¶ 19 When Rico alerted on defendant's vehicle, Korando asked defendant if he had illegal drugs in his vehicle, and defendant said that he did not. Korando noticed that defendant began sweating profusely and his carotid artery pulsed noticeably. Korando asked defendant if he could search his vehicle. According to Korando, defendant consented to a search.

¶ 20 A video recording of defendant's conversation with Korando was admitted into evidence. The video appears to malfunction at the time defendant gave his alleged consent to search his vehicle. The video does not conclusively show defendant gave consent to search his vehicle. However, Korando testified that defendant gave him verbal consent.

¶ 21 Korando then gave Degraff a "thumbs up." Both Korando and Degraff (who had worked together previously) testified that they interpreted a "thumbs up" to mean that the driver had consented to the search. Although Degraff never confirmed with Korando that defendant consented to the search beyond seeing the "thumbs up," Degraff began searching the vehicle. Korando also assisted in the search. Both troopers searched the inside of the vehicle, as well as the engine compartment, but did not find any narcotics. Neither trooper observed anything unusual about the engine compartment. The search lasted around 15 minutes. Approximately 27 minutes and 17 seconds elapsed from the time Korando initiated the stop until the end of the search. Throughout the free-air sniff and the search, defendant remained seated inside Korando's squad car.

¶ 22 According to Degraff, when he and Korando completed a search of the vehicle, he contacted NARCINT agents and informed them of the search results. Although the officers failed to find any narcotics, Degraff believed narcotics could be hidden in the vehicle. According to Degraff, a NARCINT agent then made the decision to relocate the vehicle to the Channahon police department for a further search.

¶ 23 Coppolillo testified that he was near the scene waiting in his vehicle while Korando and Degraff searched defendant's vehicle. He made the decision to relocate defendant and the minivan to the Channahon police department as it had begun raining and due to safety concerns. Despite the troopers' failure to recover any narcotics from the search, defendant and his vehicle were transported to the Channahon police department. About 35 minutes elapsed from the time defendant was pulled over and the...