People v. Stewart

• Decision Date: 18 March 1993
• Docket Number: 5-91-0102,Nos. 5-91-0101,s. 5-91-0101
• Citation: 182 Ill.Dec. 773,242 Ill.App.3d 599,610 N.E.2d 197
• Parties: , 182 Ill.Dec. 773 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeffrey A. STEWART, Defendant-Appellee
• Court: United States Appellate Court of Illinois

Page 197

610 N.E.2d 197

242 Ill.App.3d 599, 182 Ill.Dec. 773

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Jeffrey A. STEWART, Defendant-Appellee.

Nos. 5-91-0101, 5-91-0102.

Appellate Court of Illinois Fifth District

March 18, 1993.

Paul H. Hillis, Jr., State's Atty., Salem, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Rebecca Sanders, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon (Douglas B. McKechan, Trenton, of counsel), for plaintiff-appellant.

Daniel M. Kirwan, Deputy Defender, Janet Gandy Fowler, Asst. Defender, Office of the State Appellate Defender, Fifth Judicial District, Mt. Vernon, for defendant-appellee.

Justice RARICK delivered the opinion of the court:

The People of the State of Illinois appeal (134 Ill.2d R. 604(a)(1)) from an order of the circuit court of Marion County, entered January 30, 1991, in Nos. 90-CF-80 and 90-CF-137 suppressing evidence consisting of illegal drugs and inculpatory statements. We affirm the suppression order in No. 90-CF-137 and reverse the suppression order in No. 90-CF-80 and remand for further proceedings.

On June 6, 1990, the circuit court of Marion County, in case No. 90-CF-80, sentenced the defendant, Jeffrey A. Stewart, to two years' probation following his plea of guilty to unlawful possession of cannabis and unlawful possession of a controlled substance. A little over a month later, on July 9, 1990, the defendant was charged by information with unlawful possession of a controlled substance (less than 15 grams of lysergic acid diethylamide (LSD)) in violation of section 402(b) of the Illinois Controlled Substances Act (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1402(b)) in cause No. 90-CF-137. In addition, a petition to revoke probation in cause No. 90-CF-80 was also filed on July 9, 1990, alleging that the defendant violated his probation by knowingly and unlawfully possessing 15 grams of a substance containing LSD.

On August 3, 1990, defendant filed in both the substantive criminal proceeding (No. 90-CF-137) and the probation revocation proceeding (No. 90-CF-80) a motion to suppress evidence illegally seized, alleging that the stopping of defendant for a traffic violation did not justify a search of his person and his vehicle.

A hearing on defendant's motion to suppress was held on November 29, 1990. The following evidence was adduced. On July 8, 1990, at approximately 7:21 a.m., Trooper Rog Stockwell of the Illinois State Police, while on general traffic patrol, stopped the defendant for speeding on Interstate 57 in Marion County, Illinois. After he approached the vehicle and asked the driver for his license, Trooper Stockwell recognized the driver (Jeffrey Stewart) from a previous traffic stop he had made earlier in the year. At that time (March 1990), he had arrested the defendant for speeding, driving with an expired license and possession of cannabis and LSD. Although defendant was driving the same car on July 8 that he was driving at the time of his previous arrest, Trooper Stockwell testified that he did not recognize it as such since it had different license plates. Requesting defendant's driver's license, Trooper Stockwell noticed that defendant's hands were trembling as he handed it to him. Defendant also avoided eye contact with the trooper. Trooper Stockwell took defendant back to his squad car and proceeded to write the defendant a traffic ticket. He told defendant he was under arrest for traveling 82 m.p.h. in a 65 m.p.h. zone. As he completed his paperwork on the ticket, Trooper Stockwell asked defendant whether he had "straightened up his life." After defendant indicated he had, Trooper Stockwell suggested that because defendant had straightened up his life, he would have no problem with a search of his car. Defendant replied that he did not want the Trooper to search his car and added that he was in a hurry to go home to feed a pet. After posting $50 bond with the Trooper, defendant asked if he was free to leave. Trooper Stockwell told defendant that "because of [his] actions and [the trooper's] suspicions, he could not leave." By "actions" the trooper was referring to defendant's nervousness: his trembling hands, his failure to make eye contact and the stuttering in his speech. Trooper Stockwell testified that he did not remember defendant telling him he was acting nervous because he was on probation and did not want a speeding ticket.

Trooper Stockwell then called for a backup unit and a canine unit. The canine unit (Trooper Middleton) arrived 15 to 20 minutes following the call, and the dog alerted on the right passenger-side door and the trunk. Trooper Stockwell testified that during this time the defendant was very nervous and was not free to leave the scene. After the canine unit performed a walk around of the defendant's vehicle, Troopers Stockwell and Middleton left the scene to try to obtain a search warrant, which they did the following day. Thereafter Trooper Stockwell performed the search of defendant's vehicle, which had been impounded, and found two boxes with cannabis residue in the glove compartment and a small brown plastic bottle with cannabis seeds in the trunk.

Trooper Ledbetter of the Illinois State Police testified that on July 8, 1990, he was patrolling Marion County on Interstate 57 when he received a backup call for assistance. Upon arriving at the scene, he met Trooper Stockwell, who indicated that he had stopped the defendant and issued him a citation for speeding and that a canine unit had been contacted. Trooper Ledbetter testified that he was at the scene of the stop for approximately 20 minutes before the canine unit arrived. After the canine unit arrived, the dog alerted on the passenger door and the trunk area of defendant's vehicle. Following this, Trooper Ledbetter stayed at the scene with the vehicle and the defendant, waiting for a tow truck to arrive. Trooper Ledbetter stated that the defendant then walked towards his vehicle. The trooper followed him to defendant's car and observed the defendant go inside his vehicle, take a paper sack and stuff it in his back pocket. The officer asked the defendant what he had placed in his pocket, to which the defendant stated, "nothing." The officer then removed the bag and found that it contained about 279 hits of LSD. Defendant was placed under arrest. Upon search of the defendant's front pocket the officer also found a bottle containing a liquid substance, which tested positive for LSD. The evidence was transported to the District 12 headquarters, and the defendant was taken to the Marion County Sheriff's Department. At the department the Trooper interviewed the defendant after giving him his Miranda warnings, and the defendant stated that the LSD was already on the paper, as well as in the bottle.

Defendant Jeffrey A. Stewart testified that he was northbound on Interstate 57 approximately one mile north of Salem on July 8, 1990, at 7:30 a.m. when he was stopped for speeding. He stated that Trooper Stockwell wrote him a ticket for speeding. The defendant stated that the trooper asked him whether he had gotten his life straightened out and if he would mind if his car was searched. Defendant answered that he did not want his car searched. He told the trooper that he had been away on a camping trip in southern Illinois and was in a hurry to get home to feed his animals. Thereafter a canine unit was called which took approximately 20 to 25 minutes to arrive. The defendant testified that the dog walked around his vehicle twice, and it took about five to 10 minutes. Trooper Stockwell then left the scene to obtain a search warrant. Defendant testified that he then returned to his car to obtain his driver's license and that Trooper Ledbetter followed him. The officer then searched the defendant, found the alleged contraband and placed defendant under arrest.

Defendant admitted that there was a brown paper bag stuffed in his back pocket. He also stated that to that point no one had attempted to search him. Defendant estimated that 20 minutes elapsed from the time of the stop until the time when the citation for speeding was issued. He testified that he was a little more nervous than usual. Defendant also testified that until the dog was brought to the scene, no one entered or attempted to search his vehicle in any way.

Trooper Jane Middleton of the Illinois State Police testified that she was called to the scene of a traffic stop involving the defendant on July 8, 1990. She testified that the dog walked around the defendant's vehicle once at approximately 7:55 a.m. and that the walk around lasted about two minutes. The dog alerted on the defendant's vehicle. Trooper Middleton testified that the defendant "appeared to be nervous and very slow and methodical and his speech was very slow." She stated that she accompanied Trooper Stockwell to obtain a search warrant for defendant's vehicle, which was done the following day. She further testified that she was present at the time of the search of defendant's vehicle that next day when she found cannabis seeds and cannabis residue.

On January 30, 1991, the trial court entered an order allowing defendant's motion to suppress evidence consisting of illegal drugs, statements by defendant subsequent to his arrest, and items seized in a search of defendant's vehicle pursuant to a warrant obtained after his arrest. The State thereafter filed a notice of appeal on February 15, 1991. On August 9, 1991, this court granted the State's motion to consolidate case No. 5-91-0101 (criminal proceeding) and 5-91-0102 (probation revocation proceeding) under case No. 5-91-0101.

On appeal, the State argues that the trial court erred in granting defendant's motion to suppress evidence in both the underlying criminal offense and the probation revocation proceeding. We turn out attention first to the substantive criminal offense. Specifically, the trial court found...