*1 ILLINOIS, PAUL T. Plaintiff-Appellee, v. THE OF THE PEOPLE OF STATE RAIBLEY,Defendant-Appellant. District No. 4 — 00—0587 Fourth April 2003. Argued Opinion filed November 2002. *2 MYERSCOUGH,P.J., specially concurring part in dissenting part. Daniel D. Yuhas and Robert (argued), N. Markfield Appel- both of State Office, late Defender’s Springfield, of for appellant. (Norbert Tucker, Alan D. Attorney, State’s Goetten, of Havana J. Robert Biderman, J. Dodegge (argued), Thomas R. Attorneys all of State’s Appel- Office, late counsel), Frosecutor’s of Feople. for the JUSTICE APPLETON delivered the opinion of the court: trial, After a bench the trial defendant, court found Paul T. Raib ley, guilty (720 of two counts of child pornography ILCS 5/11— 20.1(a)(l)(vii) (West 1998)) (720 and two counts of burglary residential (West 1998)). ILCS The court sentenced him to 12 years’ 5/19—3 imprisonment count, for each ordering that the terms run concur rently with each other but consecutively to a 10-year term of imprison ment that the United States District Court for Central District of Illinois imposed, for the conduct, same in United Raibley, States v. No. 98 — CR—40058. Defendant appeals on grounds, several but we need consider only one: that the trial court erred in finding defendant had consented to a taking officer’s the incriminating videotape from pickup truck jail to the county it agree there. We with that contention and therefore reverse the trial court’s judgment as well as the conviction on all four counts.
I. BACKGROUND Attorney against filed six counts the State’s On October I County alleged: circuit court. Count defendant in the Mason County[,] com- [defendant] in Mason September “[0]n *** in that defendant pornography] [child of mitted the offense knowingly [videotaped] *** Doe, Jane a child whom defendant knew to be under the age [18] years, while [the] child was another the unclothed buttocks of object of lewd exhibition of ***.” person [sic] I, alleged it that defendant except II to count
Count was identical setting in a involv- depicted [the] Doe “while child was videotaped Jane genitals [the] unclothed of child.” ing the lewd exhibition of the trial, and the trial court prior count III The State dismissed IV¡ sexual predatory of criminal assault acquitted defendant count 1998)). 14.1(a)(1)(West (720 ILCS 5/12 — alleged: Count V com- County, [defendant] in Mason September “[0]n defendant burglary] [residential
mitted the offense dwelling place authority entered knowingly and without Illinois, Havana, intent to Doe, County, with located Mason John felony pornography child ***.” commit therein a count V verbatim. repeated Count VI II, I, and VI. guilty of counts The trial court found V videotape of suppress motion to pretrial Defendant filed a children, by shrugging, given he had not arguing that John Doe’s *3 hearing At the on videotape. and police permission to seize view testified, significant and no motion, only witnesses for State attorney testimony. Neither emerged from their discrepancies factual in their recitation of the incorrect argued that the witnesses were one should facts, disagreed on the inferences although they historical those facts. draw from Aledo, He testified for Illinois. Lindburg
Eric a officer was dispatched he to Wal-Mart p.m., at 4:13 was that on October entering videotaping employees Aledo, reportedly in a man was where a store Wal-Mart, Lindburg spoke with the store. At exiting and small, short, man in a white a red-haired manager, who described plate of the license number. portion remembered a pickup truck. She hurry in a when and left she man had become nervous She said the testified he also Lindburg videotaping employee. an noticed he was videotaped, 17-year-old a the man had employee whom spoke with man, manager had but the noticed the teenager female. The never lot as she parking her from the guy videotaping a “told her there was dangerous man armed or suggested one was walking in.” No was any way. in lot,
Seeing pickup parking Lindburg no in resumed white truck radio, officers to regular patrol. requested his Over the he other truck, keep eye speak an out for the he wanted “to because later, by again; individual.” About an hour he cruised Wal-Mart this parking lot, time the truck was in the but no one was the truck. he the truck Lindburg plate testified ran the license ascertained belonged to defendant. He then into Wal-Mart to ask the went manager talking if she saw the man in the store. While with the out manager, glanced speeding over his shoulder and saw truck that the Lindburg lot. ran to car and radioed parking patrol his west just parking high speed going truck had left the lot at a and was highway. patrol sight on the He truck in his car but lost pursued the speeding park- of it. He did intend to write a citation because a ing illegal. merely lot was not He wanted to talk with defendant hasty departures suspicious because his from the lot were parking Lindburg might stalking teenager. was concerned he have been four-
Lindburg spotted highway truck a mile down the at the way County A deputy intersection center of Aledo. Mercer sheriff, Hast, patrol Sean the truck car 10 stopped angling his Lindburg feet in front of it. Both and Hast had turned on the overhead emergency lights patrol Lindburg “[Defendant] of their cars. testified: window[,] get had his hands out of the him up [Hast] had against [began] “may the vehicle and have pat down.” Hast had his hand on firearm in yet the holster or near it.” Defendant Hast, “[‘][N]o, appeared surprised Lindburg and nervous. told he is ” just not under I speak Lindburg arrest. need to with him.’ then stated, [‘]okay,[’] apologized “[Hast] said and I believe he got [defendant] and in his vehicle and drove off.” arrest, assuring Lindburg After him he not under “asked [defendant] corner[.] if he mind around the speaking [him] with around[,] pull parking [I]f [was] he wanted to his vehicle there a intersection, spot.” Lindburg Lindburg After he and moved out of the might patted again, defendant down but he was uncertain. Defendant “still asked him shaking, Lindburg a little nervous.” why videotaped employee. he had the Wal-Mart Defendant asked if it illegal videotape person parking in a lot. said no but suspicious.” anything it looked “real He “if he had il- asked defendant no, legal [pickup] truck.” When defendant said “asked him if if prosecutor questioned [he] he would mind made sure.” The Lindburg as follows:
“Q. then[,] words[,] ***? [W]hat [were] his on the consent [(the truck)]. just A. He said he didn’t mind if I searched it Q. I he you gesture you testified[.] [D]id note made a there as any gesture you? make as he answered didn’t mind if I did.” shrugged A. I he and said he believe truck, seat, defendant reached under the Lindburg As searched folders, and stuck them in his back pulled out some videocassette him him he “didn’t want to reach under the pocket. Lindburg told again. seat” it. truck, Lindburg marijuana pipe smoking
In
found
and a
for
(Miranda
defendant,
rights
read him his Miranda
He handcuffed
(1966)),
Arizona,
L. Ed. 2d
Q. respond? How did he girlfriend him on there. There tapes A. There were and his may pornography.” be some County Attorney Mercer State’s Baron
Lindburg testified called him, telephone a cellular and asked within earshot Heintz on him he defendant, legally videotapes. if he could view the Heintz told if then could defendant consented. asked defendant —who patrol then in the car with his hands cuffed front of sitting tapes. if took a look at the That is [they] him —“if he minded Lindburg: gave shrug.” Defense counsel asked when he “Q. point? why And were the seized at if he mind if I took a look [defendant] A. Because I asked tape. object. at the He didn’t
Q. say? did he What Nothing, shrugged shoulders.”
A. evidence, Lindburg took defendant to the gathering up After him through sally port and took County jail. Mercer “We entered possession for jailers [and] told them he was under arrest out of Lindburg got Then paraphernalia.” cannabis and A brought jail. county employee helped car and them into the patrol office, dispatcher’s in the up equipment hook some audiovisual jailers booking defendant. next door to the room where the were office, was a booking dispatcher’s room and the there Between the window, Lindburg and others car- through defendant could see which into the office. rying equipment the audiovisual office, videotape, the first dispatcher’s In the viewed pornogra- no footage teenager parking lot but which had phy. Lindburg: Defense counsel asked *5 [(the
“Q. viewing particular tape that any prior [your] At time incriminating footage),] [defendant] did videotape first that had no verbalize, say tape[’?] say the Did he [‘]go ahead and watch anything to indicate consent? [‘]go tapes. [’]”
A. He never ahead and said watch Lindburg further testified: jail. previously already
“A. He had told him We we were them[,] taking videotapes] [the to view however.
* * * Q. You had [‘]we[’] said advised him?
IA. had advised him.” jailer Lindburg videotape, After viewed the first defendant told the jail.” he “in speak wanted with the back of the testified:
“A. I went back there to talk to him.
Q. say? And did he what people viewing tape. A. He said that he didn’t a lot of want If I tape, needed to use his video camcorder to view the he would show me how to do that.
Q. you Did utilize the video camcorder? already A. I told him up only we had had it hooked me and guy up videotape] [would who hooked it view the there because it[,] going looking wasn’t to be a lot people anyway. at Q. say What did he after that? [‘]okay.[’]
HeA. said
Q. you say? And did what got [a] A. We discussion about fact he knew what he was doing wrong help.” and that he needed Lindburg then videotape, viewed second which contained Afterward, child I and II and an pornography counts describe. he investigator defendant, eliciting from him the interviewed admission he incriminating videotape. had made the
In order the trial noted denying suppress, its motion to court old, years college graduate, working “[34] that defendant was as a scientist.” The order further stated: vague “The evidence is as to whether there was an somewhat *** by viewing tapes [defendant
actual verbal consent to the of the car, they It acquiescence. the time were seized from the or mere *** body language, thought is clear that the officer [defendant’s *** that[,] further[,] given consent[ ] [defendant any objection viewing tapes not voice of the time. * * * *** viewing tape containing of child [P]rior evidence an affirmative act indicative of pornography, [defendant took voluntary by offering his video camera for the officers viewing tape, saying to use in he didn’t want others to see it. act, consent, coupled original implied with This even if verbal clearly given, light age, education, consent was of his intel- ligence, setting[,] circumstances, non[ ]coercive and all relevant [c]ourt that he leads conclude consented to the tape.” appeal This followed.
II. ANALYSIS A. Timeliness of the Posttrial Motion (cid:127)1 argues The State that because defendant posttrial filed his mo late, tion he has forfeited the issue of whether he consented to the viewing of the videotape. posttrial issue, His motion discussed but he filed May days the motion on more than 30 after March 2000, when the trial court finding guilty issued its order of child 1(b) (West pornography and burglary. residential See 725 ILCS 5/116— *6 2000); 228, 243, 1275, People Segoviano, v. 189 Ill. 2d 725 N.E.2d 1282 (2000). in
Citing People Gauwitz, 362, our decision v. 80 Ill. 3d App. 400 (1980), argues N.E.2d 92 that because the State never posttrial court, moved to strike the motion in trial the State has waived 27, the 2000, issue of untimeliness. Defendant is correct. On June in hearing motion, the on the posttrial prosecutor argued the never the motion untimely. merely requested He the trial court deny grounds. Gauwitz, the motion on As in substantive we said 80 Ill. 367, 96, 3d at 400 App. “two-way N.E.2d at waiver is a street.” If the State never alerted the trial court to the posttrial untimeliness of the motion but instead attacked the motion, substantive merits of the necessarily State recognized jurisdiction the trial court’s waived Gauwitz, 367, the issue of untimeliness. 80 App. See Ill. 3d at 400 96; People Eddington, 745, 751, N.E.2d at see also v. 129 Ill. 3d App. (1984) 103, (by 473 N.E.2d 108 actively participating, objec without tion, motion, in proceedings posttrial on a late the State revested jurisdiction). trial court with
B. Distinction Between a Search and a Seizure
giving
findings
While
deference to a trial court’s
of historical
facts,
fact and reasonable inferences from those
we review de novo the
and, therefore,
reasonableness of a
or seizure
warrantless
search
applicability
exceptions
requirement
People
to the
of a warrant.
v.
Blair,
373,
(2001),
denied,
321 Ill. App.
appeal
3d
699
people
from
protect
and federal constitutions
state
Const.,
I, 6; §
art.
U.S.
1970 Ill.
searches and seizures.
unreasonable
warrant,
police
must
Const.,
consent or a
amend. IV Absent
377,
at
Blair,
App.
321 Ill.
3d
748
property.
to seize
probable cause
unlawfully seized evidence
government
at 323. The
cannot use
N.E.2d
Lord,
379, 381,
v.
Ill. 2d
City Chicago
at trial.
7
against a defendant
(1955).
504,
130 N.E.2d
The fourth
conceptually
are
distinct.
A search and a seizure
“
involving
one
types
expectations,
amendment
two
‘protects
’ ”
Illinois,
“searches,”
County,
v. Cook
the other “seizures.”
Soldal
(1992),
538, 544
506 U.S.
121 L. Ed. 2d
113 S. Ct.
85,
109, 113, L.
2d
Jacobsen,
466 U.S.
80 Ed.
quoting United States
to look for that
94,
1652,
To “search” means
S. Ct.
58, 62, 245
App.
107 Ill.
(People Milligan,
is concealed
which
551,
(1969)), thereby infringing upon
expecta
someone’s
N.E.2d
459,
S.
(Soldal,
63,
In
ar
App.
police
321 Ill.
3d at
748 N.E.2d at
disorderly
videotaped
rested the defendant for
conduct
that he had
custody,
police
children
at the zoo. While
defendant was
and, according
testimony,
to their
went to the defendant’s residence
computer.
obtained a consent from father to search the defendant’s
375-77,
Blair,
3d at
N.E.2d at 322-23. The
App.
refer
turned on the
and found “bookmarks” therein with
computer
Blair,
at 322.
teenagers.
ences to
321 Ill1.
Believing
pornography,
it contained child
seized the
*7
and,
thorough search of it outside
computer
upon performing a more
Blair,
home,
in
321 Ill.
pornography
computer.
found child
376,
“[E]ven
Third District held:
App. 3d at
Thus,
in denying
suppress
the trial court erred
the motion to
computer
Blair,
375,
Ill. App.
files.
321
3d at
Defendant that a reasonable person, consenting when to a truck, search of a pickup “anticipate [police] would not that the officer carry off play order to them at an off-site loca- argues tion.” He that his consent to search the truck did not encompass police “removing officer’s the videotapes from the viewing truck and them at a remote location.” agree. By carrying We away county jail separate them in a booked, room being interfered, while defendant was in a way, meaningful possessory with defendant’s videotapes. interest They videotapes, by seized the consenting pickup to a search of his truck, defendant had not consented to a property. seizure (such
If police during discover an item a lawful search as a consent), pursuant they may only search seize it if they prob have Warden, able cause to believe it is contraband evidence of a crime. Maryland Penitentiary Hayden, 294, 307, 782, 387 U.S. 18 L. 2d Ed. 792, 1642, (1967); Blair, 377, 87 S. Ct. 1650 App. 321 Ill. 3d at 748 N.E.2d incriminating at 323. The character of the item must be im mediately apparent Blair, at the App. time of the seizure. 321 Ill. 3d 377, 323; 128, 136, 748 N.E.2d at Horton v. California, 496 U.S. 110 123, 2301, L. Ed. 2d 110 Hayden “[I]f S. Ct. 2308 test met, objects is not then lawfully may discovered in the consent search subjected scrutiny, be carried off and to further unless of course LaFave, goes 8.1(c), § the consent far.” 3 so W Search & Seizure (3d ed. If the underlying probable facts a claim of cause are undisputed, probable we review cause de novo. People Sweborg, App. Ill. A N.E.2d person’s posses sion of nonpornographic images of children does not create probable cause to seize person’s property might the belief that it contain Blair, child pornography. 377-78, 323; 748 N.E.2d at (1st Brunette, 2001); United States v. 256 F.3d Cir. United States (D.P.R 2002). Hernandez, 183 F. Supp. lacked probable to seize videotapes. cause Shrug
C. The search, At the site of the defendant sat while handcuffed car, patrol [he] asked him if “he would mind if took a look at tape.” only Defendant’s response shrug. scope by applying We determine the of consent a standard of “ ‘objective’ typical person reasonableness —what would the reasonable exchange suspect?” understood between the officer and the Jimeno, Florida v. L. Ed. 2d 111 S.
701 phrase not his though Lindburg did 1801, 1803-04 Even Ct. them, request as a to seize a look at” the request to “take would have understood position, in defendant’s person, a reasonable jail at the requesting permission view Lindburg as going to therefore, police knew the were and, to seize them. Defendant them to reasonably expected jail and could not have take him to the camcorder, at finish, on his own videotapes, from start view the two the site of the arrest. expression of consent. unambiguous not an shrug
Defendant’s
1188, 1190
194, 197-98,
761 N.E.2d
Anthony,
In
People v.
and,
defendant on the street
(2001),
approached the
police
a
officer
he had
in the area and whether
asking
doing
he was
after
what
a search of
him to consent to
anything illegal
person, requested
on his
no
nervous,
gave
the defendant
Plainly
shaking,
his hands
person.
“
”
pat-down,
for a
merely
position’
‘assumed the
verbal consent but
on
of his head.
placing
top
his hands
spreading
legs apart
at 1190. The
officer
Anthony,
Ill. 2d at
761 N.E.2d
198
consent,”
him, and
searched
gesture
construed that
as a “nonverbal
198-99,
Ac
“The defendant
[citations],
authority is
acquiescence
apparent
conduct
but ‘mere
***
necessarily
[citation].
consent’
us draw an inference
The State would have
consent,
acquiesce.
equally
An
valid
defendant intended to
he
ambiguous gesture is that
inference from the defendant’s
intimidating
as the
and surrendered to what
viewed
submitted
just
an
and uniformed
officer who
presence of
armed
increasingly accusatory questions.”
subtly
a
of
asked
series
1192-93,
202-03,
quoting
Anthony,
Ill. 2d at
761 N.E.2d
198
744
Kelly,
People v.
Ill.
ambiguous
case,
shrug
more
In
present
Anthony.
shrug
A
“assuming
position”
than the defendant’s
indifference,
uncertainty.” Merriam-
“aloofness,
express
can
(10th
“In the case
Dictionary ed.
Collegiate
Webster’s
from a
conduct,
easily
inferences so
arise
dueling
where
nonverbal
this
intention to surrender
gesture, the defendant’s
single ambiguous
Anthony,
unmistakably clear.”
right should be
valuable constitutional
The
has the burden
N.E.2d at 1193.
State
Ill. 2d at
proving
the consent
voluntary. Anthony,
198 Ill. 2d at
N.E.2d at
carry
1192. The State cannot
proving
burden
shrugged.
See
v. Zapp,
State
108 Idaho
701 P.2d
1985)
(App.
(shrugging
holding up
bag
shoulders and
were
gestures
not sufficient
bag);
Harris,
consent to search the
State v.
(Del.
1993)
642 A.2d
Super.
1246-47
(shrugging shoulders was
toolbox).
not a
gesture
sufficient
of consent to search a
shrug
could
“I
have meant
don’t
It
know.”
could have
*9
expressed
contempt.
aloofness —or
It could have expressed defendant’s
acquiescence to authority
police
after the
asked him a series of increas
ingly accusatory questions
(Why
you videotaping
young
were
that
you
woman?
anything illegal
Do
have
in this truck? Is there any child
pornography on this videotape?). According
court,
to
supreme
our
defendant’s consent to the seizure and viewing
videotape
of the
had to
be “unmistakably
clear” from
shrug
the
or
other “nonverbal
conduct.” Anthony, 198 Ill. 2d at
Significantly,
Even
it still would
been
ambiguous,
it
expressed
because
could have
indifference not to the
(as
proposed
videotapes
seizure of the
request
but to the
to seize them
if
say,
to
“What does it matter if I
going
consent or not? You’re
to take
them,
and
anyway”).
view
shrugged
Defendant had
verbally consenting
truck,
when
to the search of his
but defendant’s
shrug,
mute
he
patrol car,
when
was handcuffed in the
could have had
meaning.
different
The State points
protested
out that “defendant never
upon learn
that
ing
Lindburg interpreted
‘shrug’
his
as consent.” In Anthony, we
reasoning
order,
used the same
in a Rule 23
which the supreme court
“
reversed.
said:
We
‘Defendant never protested during
police
[the
of
objected
actions,
ficer’s] search or otherwise
By
to
search.
these
”
gave
defendant
[the
his consent
to
officer] for
search.’
Anthony,
(and, therefore, right his to refrain from proposing use camcorder). gave the police Whether the defendant a Miranda a factor warning is to consider deciding when whether the defendant’s Smith, voluntary. People 124 Ill. App. 3d N.E.2d Nevertheless, apparently defendant silence, concluded point, that his at that him would have done no good but, rather, brought greater humiliation, would have because the police had resolved already to view the in fact viewed the first one. assumed,
Even we for argument, if the sake of that the consent gave jail voluntary, defendant the consent would neverthe “ less be ‘inextricably up ineffective because it was with [the bound ” illegal State’s] conduct and segregated [could not] be therefrom.’ People Freeman, App. 121 Ill.
(1984), quoting Kelly,
III. CONCLUSION reasons, For the foregoing judgment we reverse the trial court’s and defendant’s conviction on all four counts.
Reversed.
KNECHT, J., concurs. MYERSCOUGH, specially concurring
PRESIDING JUSTICE part dissenting in part:
I concur that the State forfeited issue untimeliness of the posttrial However, motion. I disagree majority’s holding with the not consent to the search or the *11 I videotapes. disagree also with majority’s apparent ap- the view that always de a pellate courts should review novo the voluntariness of only consent. of a novo consent is reviewed de where Voluntariness
705 Anthony, credibility disputed. is the of witnesses neither the facts nor Ill. Sims, v. 192 1191; People at also 201, Ill. 2d 761 see 198 at N.E.2d (2000), Ornelas v. United 592, 1048, citing 1060 615, 2d 736 N.E.2d 1657, 911, 920, S. Ct. 1663 L. Ed. 2d 116 States, 517 134 U.S. 551, 372, 374 Carlson, 546, Ill. N.E.2d (1996); People 185 2d 708 v. cred finding neither the facts nor the Perhaps, majority’s is on the trial court’s comment ibility disputed of witnesses is based body language, officer by “[i]t [defendant's is clear that further[,] that[,] ] thought given [defendant] had consentí of at any objection viewing tapes to the [defendant did not voice However, I the trial court’s App. time.” Ill. 3d at 697. find that any 338 (1) voluntarily had Lindburg believed that defendant findings—that (2) consented, objection defendant voiced no (3) objection defendant’s lack of constituted consent —were tape, of credibility findings, disturbed absent an abuse which should be discretion. standard,
Regardless, even under the de novo I would affirm trial court. The record indicates that defendant consented years age, college gradu his car. Defendant 34 of a to search of of employed ate as a at the time this incident. When scientist way consented, any arrest or in detained. he was under drawn, have nor had he weapon did not activated made lights. suggests that squad emergency No evidence any threats that his or the tone of voice language used United States way clearly voluntary. The coercive. consent (7th Kozinski, 795, 16 F.3d 810 Cir.
Moreover, Lindburg
scope
The
did not exceed the
consent.
subjective
by
is not
intentions of
scope
determined
searching of
consenting
subjective interpretation
or the
party
146,
1186,
People Baltazar,
149,
Ill.
691
App.
ficer.
3d
N.E.2d
(1998). Rather,
of a
measuring
scope
the standard for
Jimeno, 500
“objective
is that of
reasonableness.”
suspect’s consent
Ledesma,
302,
1803;
Ed.
at
People
U.S. at
114 L.
2d at
Ill S. Ct.
App.
requires
Ill.
This
typical,
person
consideration of what a
reasonable
suspect.
and the
by
exchange
understood
between
officer
1803-04;
Jimeno,
L.
2d at
814,
words,
N.E.2d
815. In
763
at
other
courts examine what the
Ledesma,
was the
for
said
reason
the search.
Ill. App.
814,
In the instant defendant was seen at Wal-Mart a videotaping 17-year-old girl. He to then returned Wal-Mart and overheard Officer
Lindburg investigating defendant’s of videotaping girl. the Defendant high speed fled at a rate of was stopped and another officer. Lind- burg, girl stalking occurring, questioned concerned a of the was then videotaping defendant about the he had any pornography. and whether Clearly, the of search to Lindburg’s focus was determine whether defendant was a stalker and he possessed illegal whether pornography.
Lindburg expressly asked videotaping about defendant’s of the employee. Wal-Mart why asked defendant videotap- ing a employee. Wal-Mart He then asked defendant whether defendant anything illegal vehicle, had in the and defendant that he replied not. if he sure, asked could make and said defendant that Since fine. the focus of a search its scope, defines defendant’s consent extended to videotape. circumstances, expect
Under those a reasonable person would search, part they could be viewed as since could directly contain relating suspicious evidence to defendant’s activities. (2000) 1, 853, See v. People Berry, 314 Ill. App. (reasonable person would exchange have understood which “ ” ahead,’ said, right response request ‘Go to officer’s to phone, look at to mean that turning defendant consented officer on phone pulling number, subject and up only where under discussion ownership phone). Kelk, See People also 797, 800-01, (1992), N.E.2d where this court stated:
“Here, defendant, the police immediately prior officer asked the car,’ request to ‘lookin the if drugs weapons there were sufficiently The of that question vehicle. context informed suspect do, and, of what the officer intended to under those circumstances, reasonably the officer the defen- consider dant’s statement —that he did not care if the officer looked in his car, general including car—to be a to a search of that thereof, Supreme contents as the Court held Jimeno.” videotapes, Girls,” camera, camera, one labeled “Aledo video magazine, undergarments, lingerie pornographic women’s found clearly here were within focus.
Additionally, Lindburg was entitled to continue on his search two grounds. Immediately commencing search, other after the officer time, drug discovered cannabis and At that paraphernalia. his Miranda advised of placed properly under arrest and defendant was resulted in seizure of rights. The continuation of the search if that even lingerie. female Defendant’s contention consensual, anything seized after court finds the search to be suppressed be is finding paraphernalia the cannabis and should merit for two reasons. without area, in an to a search of
Once a defendant consents car, complain that a search of the case, this he cannot thereafter consent, protests or scope clearly area of his unless he exceeded 251, 114 Ed. 2d Jimeno, 500 U.S. at L. withdrew consent. (7th 1804; Stribling,
111 S. 94 F.3d Cir. Ct. United States 23 L. Ed. 2d California, Under Chimel found, (1969), marijuana paraphernalia S. Ct. 2034 once the were clearly authority complete the search incident the officer consent, scope and the the arrest even without the defendant’s *13 extended all the seized items were discovered. search to areas where Belton, Ed. S. Ct. 2860 New York v. 69 L. U.S. (7th (1981); Richardson, Cir. States F.3d United consent, need authority, Given this the officer to seek further nor later detract responses and neither the fact that he did defendant’s authority. from that
Moreover,
shrug
response to
given
authority,
this
Lindburg’s
Lindburg’s request
to view the
further ratified
not,
arrest, reasonably
do
Defendant could
after his
authority to
so.
tapes roadside—with an arrested
expect that
would view the
them.
suspect
tapes
than take the
to the station
view
—rather
Lindburg viewing
tape,
the second
which
Finally,' prior
clearly
defendant
consented
view-
pornography,
contained
child
Rather,
ing
prior
and did not withdraw his
consent.
tape
second
voluntary consent
took an
act indicative of his
affirmative
tape, saying
camera to use to view the
offering
video
act,
original
with the
coupled
he did
want others
it. This
see
age, education, intelligence,
light
the later
of his
shrug,
circumstances,
setting,
all relevant
indicate defendant
viewing
17-year-old
tape.
consented to the
Were the defendant
objection to
individual,
any way
he in
indicated an
uneducated
time,
might
my
conclusion
be otherwise.
tape
(7th
1995);
Price,
United States
United
For I affirm the trial court. these