People v. Terry, 4-02-0864.

• Decision Date: 26 February 2008
• Docket Number: No. 4-02-0864.,4-02-0864.
• Citation: 883 N.E.2d 716,379 Ill.App.3d 288
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles Sanford TERRY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

883 N.E.2d 716

379 Ill.App.3d 288

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles Sanford TERRY, Defendant-Appellant.

No. 4-02-0864.

Appellate Court of Illinois, Fourth District.

February 26, 2008.

Justice KNECHT delivered the opinion of the court:

On the night of May 20, 2002, defendant, Charles Sanford Terry, was the front-seat passenger in a pickup truck pulled over by police. A search of defendant at the scene led to immediate arrest and a charge for possession of a controlled substance with intent to deliver (1 gram or more but less than 15 grams of a substance containing cocaine) (720 ILCS 570/401(c)(2) (West 2002)). After an August 2002 bench trial, the trial court convicted defendant of the charge. In September 2002, the court sentenced him to six years in prison.

Defendant appeals, arguing the trial court erred by denying his motion to suppress the evidence against him because (1) police officers (a) exceeded the lawful scope of the traffic stop by asking him if he had any illegal weapons or drugs and (b) unconstitutionally extended his detention beyond the time necessary to conduct the traffic stop; and (2) defendant's assuming a typical search position and saying "You have a job to do" did not constitute consent to search him. We disagree with each contention and affirm.

I. BACKGROUND

At the August 2002 hearing on defendant's motion to suppress, Urbana police officer Jay Loschen testified that shortly before 9:30 p.m. on May 20, 2002, he observed a pickup truck in the parking lot of an apartment complex at 808 N. Lincoln in Urbana. In the past, Loschen had made drug arrests at or near 808 N. Lincoln. Loschen parked within sight of the truck and waited for it to leave the parking lot. When he first noticed the truck, its only occupant was the driver, later identified as James Tinnin.

When the truck left the parking lot, defendant was a front-seat passenger. Loschen followed the truck for a half block before pulling it over because the rear registration light was out. Loschen asked Tinnin for his driver's license and proof of insurance. Loschen noticed defendant was not wearing a seat belt and asked defendant for his name and date of birth. Loschen did not see any weapons, drugs, or drug paraphernalia in plain view inside the truck. As Loschen walked back to his squad car to run a computer check on Tinnin and defendant, he called for backup. From the squad car, Loschen saw defendant "ma[k]e several movements in the truck as if he was hiding something." Specifically, Loschen described defendant as "just bouncing around" with "his hands down by his sides."

Urbana police officer Richard Surles arrived within one minute of Loschen's obtaining Tinnin's license. After the computer check was completed, Loschen and Surles returned to the truck, where Loschen told Tinnin his license was valid and handed it back to him. Surles stood on the passenger side of the truck. Loschen then asked Tinnin if he could speak with him outside the truck. Tinnin agreed and got out of the truck. Loschen told Tinnin the police had several problems with drug sales at 808 N. Lincoln and asked Tinnin for consent to search his truck. Tinnin consented.

During Loschen's conversation with Tinnin, defendant got out of the truck and conversed with Surles. When Loschen finished speaking with Tinnin, Surles was getting ready to place handcuffs on defendant. Surles handed Loschen a small plastic bag containing an off-white, chalky substance he had removed from defendant's jacket pocket. The substance later tested positive for cocaine. Loschen and Surles conducted another search of defendant and Loschen found a small plastic bag containing a white, powdery substance, which also tested positive for cocaine. Loschen acknowledged he suspected drugs would be present when he pulled the truck over because it had been parked at 808 N. Lincoln.

Surles testified when he arrived at the scene, Loschen's squad car was parked behind the truck and Loschen told Surles he was going to try to get consent to search the truck. Both officers walked over to the truck and Surles stood approximately five feet to the rear of the passenger-side door while Loschen spoke with Tinnin. Defendant then got out of the truck. Surles did not ask defendant to get out of the truck or speak with him at all before he got out of the truck. Defendant and Surles exchanged a greeting. Surles then asked defendant if he had any knives, guns, drugs, or needles. Defendant said he did not. Surles then asked defendant if he could search him. Defendant did not respond verbally. Instead, he put his hands on the side of the truck bed and kicked his legs back into the position in which one would be searched. Surles again asked defendant if he could search him. Defendant said, "`You got to go ahead and do what you got to do.'" Surles asked again if that meant he could search defendant. Defendant replied, "`you have a job to do'" and "`here[,] let me help you out.'" He then removed some items from his jacket pocket and put them on the edge of the truck, including a cellular phone, a lighter, and some medication. Defendant put his hands back on the truck and Surles began to pat him down. Surles believed he had consent to search defendant at that time based on defendant's statements, body language, demeanor, and the fact he voluntarily removed items from his jacket.

In defendant's right jacket pocket, Surles found a plastic bag containing a large piece of crack cocaine. Upon the discovery, defendant said, "possession," and Surles handcuffed him. After he was placed under arrest, Surles found a bag of powdered cocaine in a "cargo pocket" of defendant's pants.

Surles acknowledged nothing about the traffic stop made him fear for his safety beyond his usual sense of caution. Loschen did not tell Surles why he wanted to search the truck, what his suspicions were, or what those suspicions were based upon. Surles did not see any weapons, drugs, or paraphernalia in plain view. Nothing about defendant caused Surles to have an "elevated level of caution." His basis for asking defendant for consent to be searched was because Loschen was asking for consent to search the truck. It was not a weapons pat down. It was a search. Surles did not know defendant before this incident.

Although the testimony of defendant's witnesses differed from that of Loschen and Surles, particularly regarding defendant's interaction with Surles, the trial court found the officers' testimony credible, and defendant does not challenge the court's factual findings. We need not include a recitation of defendant's evidence.

At the conclusion of the suppression hearing, the trial court denied defendant's motion to suppress the evidence. Following an August 2002 bench trial, the court convicted defendant of possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2002)) and sentenced him to six years in prison. This appeal followed.

On July 8, 2004, this court issued an order reversing the trial court's judgment based on our conclusion the trial court erred in denying defendant's motion to suppress. People v. Terry, No. 4-02-0864, 348 Ill.App.3d 1107, 311 Ill.Dec. 447, 868 N.E.2d 1108 (July 8, 2004) (unpublished order under Supreme Court Rule 23). On August 12, 2004 the State filed a petition for leave to appeal with the Supreme Court of Illinois. The supreme court issued a supervisory order on denial of the petition for leave to appeal:

"In the exercise of this court's supervisory authority, the Appellate Court, Fourth District, is directed to vacate its judgment in People v. Terry, No. 4-02-0864[, 348 Ill.App.3d 1107, 311 Ill.Dec. 447, 868 N.E.2d 1108] (July 8, 2004). The appellate court is directed to reconsider its judgment in light of Illinois v. Caballes, 543 U.S. 405[, 125 S.Ct. 834, 160 L.Ed.2d 842] (2005), and People v. Caballes, 221 Ill.2d 282[, 303 Ill.Dec. 128, 851 N.E.2d 26] (2006) (opinion on remand)." People v. Terry, 221 Ill.2d 668, 304 Ill.Dec. 864, 853 N.E.2d 1230 (2006) (nonprecedential supervisory order on denial of leave to appeal).

Pursuant to the supreme court's supervisory order, we now reconsider this case in light of those two Caballes decisions.

II. DENIAL OF DEFENDANT'S MOTION TO SUPPRESS

Defendant argues the trial court erred by denying his motion to suppress evidence because his fourth-amendment rights were violated when Surles expanded the scope of the traffic stop by asking defendant if he had any knives, guns, drugs, or needles. We disagree.

A. Standard of Review

Reviewing a trial court's ruling on a motion to suppress involves mixed questions of fact and law. People v. Gherna, 203 Ill.2d 165, 175, 271 Ill.Dec. 245, 784 N.E.2d 799, 805 (2003). On review, we give great deference to the trial court's factual findings and will reverse those findings only if they are against the manifest weight of the evidence. Gherna, 203 Ill.2d at 175, 271 Ill.Dec. 245, 784 N.E.2d at 805. However, we review the trial court's legal determination of whether suppression is warranted under those facts de novo. Gherna, 203 Ill.2d at 175, 271 Ill.Dec. 245, 784 N.E.2d at 805. Defendant does not argue the trial court's factual determinations are against the manifest weight of the evidence. Thus, we accept those determinations and address de novo defendant's legal challenge.

B. The Traffic Stop

Defendant contends the trial court erred by denying his motion to suppress evidence because Surles violated his constitutional right against unreasonable searches and seizures (U.S. Const., amend. IV; Ill. Const.1970, art. I, § 6) when he turned the traffic stop into a drug investigation by asking defendant if he had any knives, guns, drugs, or needles. We disagree.

In People v. Caballes, 207 Ill.2d 504, 506, 280 Ill.Dec. 277, 802 N.E.2d 202, 203 (2003) (hereinafter Caballes I), the defendant was lawfully stopped for speeding. The trooper had no reasonable...