Lead Opinion
delivered the opinion of the court:
Following a bench trial, defendant Pedro Salinas was convicted of unlawful possession of a controlled substance (720 ILCS 570/ 402(a)(2)(D) (West 2004)) and sentenced to 10 years’ imprisonment. On appeal, defendant seeks reversal of his conviction, asserting that the trial court erred in denying his pretrial motion to quash arrest and suppress evidence because: (1) the traffic stop that resulted in the seizure of the controlled substance violated his constitutional right to be free from unreasonable searches and seizures; and (2) the trial court improperly relied on evidence outside the record in delivering its ruling. We affirm.
Following a narcotics surveillance operation, defendant was charged with possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D)
Prior to trial, defendant, through counsel, filed a motion to suppress, seeking to suppress the cocaine the police recovered from his vehicle, contending that the search and seizure violated his fourth and fourteenth amendment rights to be free from unreasonable searches and seizures. In his motion, defendant argued that at the time police stopped his car for an improper lane change, “the police did not possess probable cause to arrest, or a reasonable suspicion to support a ‘Terry’ stop.” Nonetheless, defendant contended that police ordered him out of the vehicle, handcuffed him, and “performed a full search of the vehicle,” during which they recovered a box containing cocaine. Defendants argued that the search and seizure was illegal and, accordingly, sought suppression of “all fruits derived illegally from the search and seizure.” Codefendants Ayala and Cantuo also filed motions to suppress, and the trial court conducted a hearing on all three motions.
At the hearing, Officer Andrew Carvajal testified that on April 1, 2004, he was a member of the Chicago police department’s long-term narcotics investigation team when he met with, and received information from, a paid confidential informant. Officer Carvajal classified the informant as “reliable” and indicated that he had received information from this informant on approximately 30 to 40 occasions over the past two years, and that the informant’s information had led to a number of arrests as well as the seizure of narcotics. He could only recall three occasions where the informant’s tip did not prove to be accurate. On this occasion, the informant told Officer Carvajal that “he had information that a shipment of cocaine had arrived” at a residence located at 4405 South Trumbull “either the night before or *** two nights before.” The informant further informed Carvajal that a man named “Carlos” resided at that address and described him as a short Hispanic male with a slim build who was in his late thirties. The informant did not identify defendant or provide any specific information pertaining to him. Moreover, the informant did not provide any information as to how the narcotics were packaged. At the conclusion of the conversation with his confidential informant, Officer Carvajal conducted a meeting and relayed the information provided by the informant to the other members of his team. After hearing the substance of the informant’s tip, the team decided to conduct a surveillance operation at 4405 South Trumbull. Accordingly, Officer Carvajal and approximately 10 other officers commenced surveillance at the South Trumbull address at approximately 3:30 p.m.
In explaining his role in the surveillance operation, Officer Carvajal testified that he wore plain clothes and sat alone in an unmarked car parked in an alley near the residence. He had radio contact with the other members of his team. At some point, Officer Robert Bertermann, who was engaged in surveillance in the front of the residence, informed the other officers over the radio that defendant was in the area. Specifically, Officer Bertermann relayed over the radio that defendant and a female approached 4405 South Trumbull in a vehicle, that defendant conversed with a man later identified as codefendant Carlos Ayala, that Ayala then entered the house, retrieved a bag, which he handed to defendant, and that defendant and the woman accompanying him returned to their vehicle and drove away. Officer Carvajal never
Officer Bertermann confirmed that he assumed a surveillance position at the front of the South Trumbull residence on April 1, 2004, at approximately 3:30 p.m. He further confirmed that at approximately 5:30 p.m, he saw defendant arrive at 4405 South Trumbull in a Jeep vehicle that contained a female occupant, who was later identified as Candelaria Vargas, and converse with Carlos Ayala on the front steps of the residence. From his surveillance position, he was unable to hear the contents of the five-minute conversation. At the conclusion of the conversation, Officer Bertermann observed Ayala enter the residence and emerge shortly thereafter with a large plastic bag containing a square-shaped box that was approximately 15 inches high and 6 inches wide. Although he was unable to see the contents of the box, Officer Betermann saw Ayala hand the box to defendant, who then placed it in the Jeep and proceeded to drive northbound on Trumbull Avenue. Several members of the surveillance team then commenced mobile surveillance on defendant’s vehicle.
Officer Fernando Velez was part of the four-person team that engaged in mobile surveillance on defendant’s car. Mobile surveillance commenced on South Trumbull Avenue and concluded approximately one hour later at 4000 North on the Kennedy Expressway. Officer Velez explained he witnessed defendant make two lane violations near Diversey Avenue. Specifically, he observed defendant change lanes without using his turn indicator. However, because Officer Velez was driving an unmarked police vehicle that was not equipped with flashing lights or emergency equipment, he was unable to pull over defendant’s vehicle. Accordingly, he obtained the assistance of several officers from the 17th District, who curbed defendant’s vehicle.
At the time of the traffic stop, Officer Velez conceded that he possessed neither a search warrant nor an arrest warrant. Nevertheless, after defendant’s vehicle was stopped, Officer Velez walked to defendant’s car, identified himself as a police officer, revealed that he was part of a narcotics investigation, and that defendant had been seen accepting a box from the South Trumbull residence that was under surveillance. Defendant immediately acknowledged that he had received a box containing narcotics at the residence. Defendant further stated that Candelaria Vargas, his passenger, was not involved in the transaction. Following defendant’s confession, Officer Velez recovered a Mr. Coffee box containing 5,118 grams of shrink-wrapped cocaine, which was sitting in plain view in the backseat of the vehicle. After he recovered the narcotics, Officer Velez placed defendant in custody and used his radio to inform the remaining members of the surveillance team that narcotics had been recovered from defendant’s car. Officer Velez acknowledged that defendant did not receive a ticket for the traffic violations and that he did not mention the lane violations in the report that he prepared of defendant’s arrest.
Candelaria Vargas confirmed that she was a passenger in defendant’s car on April 1, 2004, when police stopped the vehicle at approximately 6:30 p.m. She testified that defendant was a friend of her father’s and denied that he was her boyfriend. Vargas acknowledged that she and defendant had visited 4405 South Trumbull earlier in the day and that defendant conversed
While Officer Velez commenced mobile surveillance on defendant’s car, Officers Carvajal and Bertermann remained in their surveillance positions near the South Trumbull residence. At approximately the same time that Officer Velez stopped defendant’s vehicle after defendant had made two illegal lane changes, Officer Bertermann observed codefendant Cantuo arrive at the South Trumbull residence. Officer Bertermann saw Ayala hand Cantuo a box that was approximately 10 inches long and 8 inches wide. After observing the second transaction, Officer Bertermann believed he had witnessed narcotics transactions and commenced mobile surveillance on Cantuo’s vehicle. He then heard Officer Velez’s radio transmission that narcotics had been recovered from defendant’s vehicle. Thereafter, Officer Bertermann confronted Cantuo, who consented to a search of his vehicle. During the search, Officer Bertermann recovered a box containing cocaine from the backseat of Cantuo’s vehicle. Defendant and Cantuo were then both transported back to 4405 South Trumbull. Thereafter, police entered the South Trumbull residence, arrested codefendant Carlos Ayala, and recovered a suitcase containing cocaine from the trunk of a vehicle parked in Ayala’s garage.
Upon the conclusion of the live testimony, the parties delivered closing arguments. Defense counsel initially emphasized that the informant’s tip did not mention defendant and did not contain sufficient detail; rather, the informant simply provided an address and the name “Carlos.” Accordingly, counsel argued that at the time of the stop, the police did not have reasonable suspicion that defendant was involved in a narcotics transaction based on the informant’s tip. Thereafter, counsel conceded that the issue of whether defendant actually committed the alleged traffic violations was essentially a credibility determination based on the conflicting testimony of Officer Velez and Candelaria Vargas. However, counsel argued that even if the police were initially justified in curbing defendant’s vehicle after witnessing two lane violations and conducting an investigatory Terry stop, their subsequent actions were not reasonably related to the scope of the stop. Counsel noted that instead of inquiring about the lane violations, Officer Velez immediately began discussing the narcotics investigation with defendant. Counsel emphasized that the police never ticketed defendant for the purported traffic violations and that the violations were not mentioned in the police report. Accordingly, counsel argued that “this was not a Terry type stop. They were not investigating a lane change. They were making a lack of probable cause type of stop in this case,” and, accordingly, suppression was warranted.
After reviewing the evidence, the trial court denied defendant’s motion to suppress. In delivering its ruling, the trial court found no credibility in Vargas’s testimony,
“I don’t believe the Constitution would constrain that officer to address that item first. I have no problem with the officers initially making these inquiries relative to this narcotics investigation, letting [defendant] know he has been watched for a period of time. I consider that good police work. It is likely in my view that we never reached the traffic stop when a Defendant — -certainly consistent with what I believe to be common sense — immediately puts himself in a situation where he is admitting then, not now, that the narcotics are his and not Ms. Vargas’ out of some sense of nobility ***. The Defendant at that juncture makes the admission, and the traffic stop, the citations, the presence or absence of a Driver’s License or insurance, falls a completely distant second in the investigation.”
Thereafter, the court classified defendant’s admission as “spontaneous” and found that “he made a knowing, intelligent, and voluntary waiver when he agreed to the search of the vehicle sui [sic] sponte after being confronted with the investigation alone.”
After the trial court denied his motion to suppress, defendant retained new counsel, and with the assistance of his newly retained counsel, filed a motion seeking to suppress the incriminating statement that he made to police following the traffic stop. He argued suppression was warranted because he was never informed of his Miranda rights and because the statement was made after he was subjected to “psychological and mental coercion.”
Thereafter, the trial court conducted a hearing on defendant’s newly filed motion to suppress his statement. Before evidence was presented, however, defense counsel informed the court that defendant withdrew his contention that suppression of his statement was warranted due to purported police coercion and specified that the sole issue before the court was whether suppression was warranted because his Miranda rights were violated.
Officer Velez was the first witness called upon to testify and his testimony was consistent with that offered at the prior hearing. Specifically, Officer Velez testified that after commencing mobile surveillance on defendant’s car, he witnessed defendant make two improper lane changes. Once defendant was pulled over, he approached defendant, and upon learning that defendant did not speak English, conversed with defendant in Spanish and informed defendant that he was a police officer engaged in a narcotics surveillance operation and that defendant had been seen removing a box from the South Trumbull location. Defendant immediately acknowledged that he had picked up a box and that there were narcotics in the box, but denied that his passenger was involved in the narcotics transaction. Officer Velez testified that at the time defendant “volunteered [the] statement,” defendant had not been placed under arrest and he had not informed defendant of his Miranda rights. Moreover, defendant was not handcuffed prior to giving his statement. Officer Velez acknowledged
Defendant testified on his own behalf. He explained that after he was pulled over by police, the officers “came close to the car and they surrounded us. They opened the doors. They pulled us out of the car. And they put the handcuffs on us.” Thereafter, he and Vargas were placed in separate police cars and he was driven to a parking lot, where the police commenced a search of his vehicle. Defendant confirmed that he had not been informed of his Miranda rights, but indicated that he never conversed with the police. Specifically, he denied that he informed the officers that he was in possession of narcotics or gave them permission to search his vehicle.
After hearing the aforementioned testimony, the trial court denied defendant’s motion to suppress his statement. The court initially noted that defendant acknowledged in his written motion that he had made a statement to police and, accordingly, the allegations in the motion were inconsistent with defendant’s live testimony. The court indicated that it would accept the allegations in the written motion that a statement had, in fact, been made, and held that suppression was not warranted because the statement “was voluntary to the extent the Defendant was not under arrest at the point it was made and there was no obligation under Miranda to give him any rights at that time.”
Following the denial of defendant’s pretrial motions, the parties proceeded to trial. At the start of defendant’s bench trial, the parties stipulated to the testimony provided at the two prior suppression hearings. Officer Velez was the sole witness to provide live testimony. At trial, he explained that on April 1, 2004, he recovered a cardboard Mr. Coffee box encased in a plastic bag that contained “ten and half kilograms of cocaine, heat sealed.” The parties then stipulated that the chain of custody was properly maintained and that 5,118 grams of cocaine were recovered from the box. After reviewing the prior hearing transcripts, the trial court declined to convict defendant of possession of a controlled substance with intent to deliver and, instead, found him guilty of the lesser-included offense of possession of a controlled substance. The trial court then presided over defendant’s sentencing hearing, and after considering the arguments advanced in aggravation and mitigation, sentenced defendant to 10 years’ imprisonment, “the minimum [sentence] allowable under the law” based on the amount of cocaine recovered from defendant’s vehicle.
Defendant filed a posttrial motion, seeking a reduction of his sentence, which the trial court denied. Thereafter, he filed a timely notice of appeal.
On appeal, defendant solely contests the trial court’s denial of his motion to suppress the cocaine seized from his car. He advances no argument contesting the trial court’s denial of his pretrial motion to suppress his statement based on purported Miranda violations.
Initially, we must address the State’s argument that defendant has forfeited appellate review of this issue because he failed to properly preserve this claim. Specifically, defendant failed to challenge the trial court’s ruling on his motion to suppress in a posttrial motion.
As a rule, to properly preserve an issue for appellate review, the defendant must make a timely objection at trial and include the error in a written posttrial
As another preliminary matter, we note that defendant acknowledges in his opening brief that he has failed to provide transcripts of the portion of the joint hearing conducted on December 14, 2004. As a general rule, it is the appellant’s burden to provide a sufficiently complete record to allow for meaningful appellate review and all doubts arising from the incompleteness in the record will be resolved against the appellant. Foutch v. O’Bryant,
In reviewing an appeal from a trial court’s ruling on a motion to suppress, we apply the two-part standard of review adopted by the United States Supreme Court in Ornelas v. United States,
On appeal, defendant contends that the trial court erred in denying his motion to suppress because police violated his fourth amendment right to be free from unreasonable searches and seizures when they stopped defendant’s car after he committed several traffic violations and immediately engaged in conversation about their narcotics investigation instead of inquiring into the traffic offenses. Defendant maintains that at the time of the stop, police lacked reasonable suspicion to believe he had committed a narcotics offense, and, accordingly, the police unjustifiably prolonged the traffic stop when they commenced discussion of their narcotics investigation. The State responds that the officers who stopped defendant’s car had reasonable suspicion to believe that defendant had committed a narcotics offense based on the tip provided by Officer Carvajal’s confidential informant. Accordingly, the police were justified in engaging defendant in a discussion about their narcotics surveillance operation immediately after they curbed his vehicle.
The fourth amendment of the United States Constitution recognizes the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV*
Pursuant to the United States Supreme Court’s ruling in Terry v. Ohio,
Under some circumstances, an informant’s tip may provide police officers with the reasonable suspicion necessary to effectuate a proper Terry stop. People v. Lee,
Both parties rely on Chavez to support their respective arguments as to the existence, or lack thereof, of reasonable suspicion in this case based on the informant’s tip. In Chavez, police commenced a surveillance operation upon the receipt of information from a known confidential informant who had provided police with information on nine prior occasions, eight of which resulted in the seizure of contraband. On this occasion, the informant revealed that “Victor,” a 5-foot-10-inch tall “ ‘Latino male’ ” weighing 180 pounds, would drive a Ford automobile to a specific tavern to pick up two kilograms of cocaine. From their surveillance position near the tavern, police observed the defendant arrive at the tavern at approximately 7:50 p.m. driving a Ford Taurus. The defendant entered the tavern and exited five minutes later carrying a brick-shaped object, which he placed in the backseat of his car. Police stopped the defendant’s car one block from the tavern, and after
The trial court denied the defendant’s motion to suppress, and thereafter, he was convicted of possession of a controlled substance with intent to deliver. On appeal, the defendant sought reversal of his conviction, asserting, in pertinent part, that the informant’s tip did not provide police with reasonable suspicion to effectuate a Terry stop. We disagreed. Initially, we noted that the informant had a “formidable track record of rehable information” based on the fact that eight out of his nine prior tips resulted in the seizure of contraband. Chavez,
“Importantly, the officers were also able to confirm the informant’s prediction of defendant’s future behavior as they were able to observe defendant carry what looked like two kilogram bricks of cocaine out of the tavern. It is critical that the cocaine bricks were visible as defendant crossed the street and were also visible from the outside of defendant’s vehicle. Had the bricks been obscured from view, the police would not have had sufficient confirmation of specific and articulable facts that the defendant had committed, or was about to commit, a crime.” Chavez,327 Ill. App. 3d at 32 .
Because the informant’s tip provided police with the reasonable suspicion necessary to effectuate a Terry stop, we upheld the defendant’s conviction. Chavez,
In this case, Officer Carvajal’s informant, like the informant in Chavez, had a “formidable track record of reliable information.” Chavez,
Finally, there is nothing to suggest that police were able to corrobórate any of the details that were provided by the confidential informant at the time of the stop. See Kline,
Accordingly, we disagree with the State that the informant’s tip in this case provided police with reasonable suspicion to believe that defendant had engaged in a narcotics transaction at the time they stopped his vehicle. We must now determine whether the police, absent reasonable suspicion to believe defendant had committed a narcotics offense, violated defendant’s constitutional right to be free from unreasonable searches and seizures when they stopped defendant’s car for a traffic violation and immediately initiated conversation regarding the narcotics surveillance operation.
Defendant, relying on People v. Gonzalez,
Initially, we note that the parties agree that defendant was seized when police stopped his vehicle. Berkemer v. McCarty,
Thereafter, two subsequent United States Supreme Court cases cast doubt on the viability of the “alteration of the fundamental nature of the stop” portion of the scope prong established in Gonzalez. In Illinois v. Caballes,
Approximately two months later, the Supreme Court again addressed the propriety of police conduct during a lawful seizure in Muehler v. Mena,
Our supreme court was called upon to interpret and apply the Caballes and Muehler holdings in People v. Harris,
In determining whether the defendant’s fourth amendment rights were violated, our supreme court initially concluded that the defendant was lawfully seized because the arresting officer had probable cause to stop the vehicle after observing the driver make an illegal left turn. Harris,
“rejected [the] reasoning that led to this court’s adoption of the ‘fundamental alteration of the nature of the stop’ portion of the ‘scope’ prong of Gonzalez. All that remains is the duration prong. During a lawful seizure, as occurred in both Muehler and Caballes, the police may ask questions unrelated to the original detention and are not required to form an independent reasonable suspicion of criminal activity before doing so.” Harris,228 Ill. 2d at 242 .
Ultimately, the court concluded that the warrant search, like the dog sniff in Caballes, did not unnecessarily prolong the stop and did not implicate any constitutionally protected privacy interests because “a warrant is a matter of public record.” Harris,
Applying the reasoning of Caballes, Muehler, and Harris to the facts at hand, we conclude that no fourth amendment violation occurred. Because defendant was lawfully seized, Officer Velez was not required to have reasonable suspicion to commence a conversation with defendant about the narcotics surveillance operation. Harris,
Accordingly, the facts in this case are readily distinguishable from those present in People v. Bunch,
Notwithstanding the lack of merit of defendant’s motion to suppress, defendant contends that he is entitled to a new suppression hearing because the trial court improperly relied upon evidence outside of the record in denying his motion, thus violating his constitutional right to a fair and impartial trial. Specifically, defendant contends that the trial court relied on facts outside the record when finding that the testimony offered by Candaleria Vargas at the suppression hearing was not credible.
The State again contends that defendant failed to properly preserve this argument, asserting that defendant’s failure to object to the trial judge’s statements at trial and in a posttrial motion resulted in forfeiture of this argument. Enoch,
The federal and Illinois state constitutions afford criminal defendants due process of law, and, accordingly, every defendant is guaranteed the right to a fair and impartial trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8. In a bench trial, the trial judge is presumed to know and properly apply the law (People v. Robinson,
Defendant initially contends that the trial court relied on facts not in evidence when it deemed Candelaria Vargas’s testimony incredible due to her romantic relationship with defendant. Defendant bases his contention on the remarks made by the trial court in delivering its ruling. Specifically, defendant points to the following statement:
“[Tjhis is a woman 20 years junior to the Defendant. She accompanies him, according to her, didn’t really know where they were going, didn’t have any social itinerary other than to the Tram-bull Street address and then to the Milwaukee Street address. I don’t find any credibility in her testimony. That belief and my view of her credibility is based upon circumstances in which she was, on the facts introduced by the Police Department, and in the manner in which and what I would view as bias predicated on her relationship, whatever that may be, with [defendant].”
Defendant asserts that “[t]he implication of the court’s statement— that [defendant] and Vargas were in a romantic relationship — is rebutted by the record,” because Vargas denied that defendant was her boyfriend. Accordingly, defendant contends that the trial court impermissibly relied on facts not in evidence when it found Vargas’s testimony to be incredible due to her romantic relationship with defendant.
We disagree that the trial court improperly characterized the relationship between Vargas and defendant as a romantic one. Rather, the court found that Vargas’s bias was “predicated on her relationship, whatever that may be, with [defendant].” (Emphasis added.) Contrary to defendant’s argument, the trial court did not characterize the relationship; it merely acknowledged the existence of their relationship and indicated some uncertainty as to the precise nature of that relationship. Because “feelings of bias and the relationship of [a] witness to a defendant are of material relevance” (People v. Gvojic,
Defendant also notes that the court found that Vargas’s testimony lacked credibility based on the fact that she “didn’t have any social itinerary other than to the Trumbull Street address and then to the Milwaukee Street address” even though there was no testimony offered by any
Defendant is correct that the record is devoid of any reference to a Milwaukee Street address. At the suppression hearing, Vargas testified that on April 1, 2004, she resided in Rockford, Illinois, and she accompanied defendant to the South Trumbull address. Accordingly, to the extent that the trial court mentioned a Milwaukee Street destination, this was an error. However, we deem this error harmless. The court correctly noted that Vargas failed to provide details concerning her travel plans with defendant other than acknowledging a brief visit to the South Trumbull address. Moreover, the court’s finding that Vargas’s testimony was less credible than that offered by the police officers was not based solely on the details or lack thereof provided by Vargas; rather, the court’s decision was based in large part on her relationship with defendant.
Finally, defendant contends that the court relied on facts outside the record in denying his motion to suppress when it found that defendant orally consented to a search of his vehicle. Defendant is again correct that there is no evidence in the record that defendant consented to a search of his vehicle. Accordingly, the court’s reliance on defendant’s consent to uphold the search was error. However, we find that this error, too, was harmless, because we conclude the result would have remained the same absent this error. Notably, while defendant challenged the constitutionality of the stop itself, he never challenged Officer Velez’s recovery of the cocaine following his confession. Indeed, notwithstanding defendant’s lack of consent to search the vehicle, Officer Velez’s recovery of the box was lawful. After defendant confessed to receiving a box containing cocaine from the South Trumbull residence, Officer Velez had probable cause to arrest defendant and was justified in seizing the box, which was sitting in plain view, in the backseat of defendant’s vehicle. See generally People v. Jones,
Accordingly, we affirm the judgment of the trial court.
Affirmed.
THEIS, J., concurs.
Notes
We note that a similar constitutional guarantee is also reflected in article I, section 6, of the Illinois State Constitution. Ill. Const. 1970, art. I, §6 (“people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, [and] seizures”). On appeal, however, defendant solely challenges the legality of the search and seizure under federal grounds.
This is the second time our supreme court has filed an opinion in this case. The court initially considered this case in 2003, when it filed an opinion affirming the judgment of the appellate court (People v. Harris,
Dissenting Opinion
dissenting:
I respectfully dissent and would reverse the defendant’s convictions.
We are presented with prosecution testimony which “taxes the gullibility of the credulous” and therefore cannot support a criminal conviction. People v. Wright,
In the case at hand, unlike the majority, I do not believe that we can or should say that the evidence presented by the State was sufficient to remove all reasonable doubt as to the propriety of the police conduct and therefore the defendant’s guilt. People v. Mathis,
The State asserts that the police officers who stopped the defendant’s car had a reasonable suspicion that the defendant was transporting illegal drugs which he had just obtained from a home where according to a reliable informant, a shipment of cocaine had been received one or two days earlier. I concur with the majority’s determination that the police had insufficient cause for a stop on this basis. The arresting police officer knew that another police officer had seen the defendant stop at the home on South Trumbull Avenue and receive from an occupant of the home, a plastic bag which appeared to contain a square box. The defendant then drove away in his car. The arresting police officer acknowledged that his police report erroneously stated that the defendant was seen carrying a Mr. Coffee box from the house on South Trumbull. Despite what the State asserts was ample cause to stop the defendant’s car, the police officers, who were several blocks away from the residence when they saw the defendant’s car, chose to follow him rather than immediately stop him. They followed him for one hour, in rush hour traffic, ultimately using seven police vehicles.
When they did stop the defendant one hour later, on the Kennedy Expressway, it was allegedly because 12 blocks earlier a police officer had observed the defendant making two lane changes without using his turn indicator. If true, this would have supported a stop of the vehicle for a traffic violation. But the arresting police officer’s report of the incident did not mention any lane change violations. The arresting police officer admitted that when he walked up to the defendant’s car after it was stopped, he made no mention to the
The testimony of the defendant and his companion at the hearing on the motion to suppress the defendant’s statements differed significantly from that of the police. The defendant and his companion testified that he was stopped by the police without having committed any traffic violations. The companion testified that she did not observe the defendant changing lanes without using his signal. When the police stopped the defendant, two police officers immediately approached the car and one of them took the defendant out of his car and handcuffed him without saying a word to him. The defendant had not spoken to them at that point. The defendant’s companion also got out of the car and was handcuffed. Without any conversation with the defendant, the police searched the car and removed a bag from it. If true, this version of the events would necessitate suppression.
The majority defers entirely to the trial court’s credibility determinations. As I have noted, although great deference is to be afforded to such findings, we as a reviewing court are not to act as a rubber stamp, agreeing in all instances with the findings of the trial court no matter how patently improbable the testimony. The facts presented by this case give new meaning to testimony that “taxes the gullibility of the credulous” as described in Wright. It is significant that the trial judge could have convicted the defendant of the charged offense of possession of cocaine with intent to deliver. He was found to be in possession of 5,118 grams of a substance of which 995.3 grams were tested and found to be cocaine. But the trial judge convicted him only of the lesser included offense of possession of a controlled substance and sentenced him to the minimum prison term permitted by law. Even considering that the defendant had no prior convictions, these are not indications of a strong belief in the State’s case. Again, we as a reviewing court have a duty to examine the totality of the facts and circumstances presented as evidence and to reverse a conviction if the evidence is insufficient to remove all reasonable doubt of the defendant’s guilt.
I find that the testimony of the arresting police officer was grossly improbable and incredible as to the basis for the stop, the subsequent events, and the defendant’s spontaneous confession immediately upon being stopped. Because the entirety of