*1 added.) §9 (Emphasis which award made.” U.S.C. within such argue jurisdiction Anderson relies on the statute to exclusive lies federal court. jurisdiction is regarding contention the circuit court’s
Anderson’s party confirm in federal without merit. Section allows an award court; it in the First require does not it. arbitration clause RIC legal action to enforce the gives parties “[rjight take court, circuit proper arbitrator’s decision.” Jurisdiction was (710 pursuant 16 of the Illinois Uniform Act section Arbitration (West 2006)). ILCS 5/16
CONCLUSION judgment
We affirm rulings circuit court. Affirmed. GORDON, JJ.,
GARCIA and R. concur. ILLINOIS, THE PEOPLE THE Plaintiff-Appellee, OF STATE OF v. PEDRO SALINAS, Defendant-Appellant. (3rd Division)
First District No. 1 — 05—2791 Opinion filed June 2008.
CUNNINGHAM, J., dissenting. Appellate Defender’s Krieger, both of State Jonathan Patricia Unsinn and Office, Chicago, appellant. for of (James Fitzgerald, Chicago E. Devine, Attorney, of A. State’s Richard Attorneys, State’s Katz, Kingsley Sawyers, S. Assistant
Michelle and counsel), People. for the opinion of the court: GREIMAN delivered
JUSTICE was convicted of trial, Pedro Salinas Following a bench (720 ILCS substance a controlled possession of 570/ unlawful 2004)) 402(a)(2)(D) (West years’ imprisonment. sentenced to and conviction, asserting that of his seeks reversal appeal, defendant On quash arrest motion to denying pretrial erred in the trial court (1) in the stop that resulted traffic evidence because: suppress and right to his constitutional substance violated of the controlled seizure (2) the trial seizures; and and searches free from unreasonable be delivering its the record outside relied on evidence improperly court affirm. ruling. We defendant was operation, narcotics surveillance
Following a intent to deliver with substance of a controlled charged possession 2004)) 570/401(a)(2)(D) (West recovered police officers (720 when ILCS 1, 2004. The April vehicle 5,118 of cocaine from grams Car- of codefendants in the arrests also resulted operation surveillance Cantuo, with narcotics of- Ayala charged los and Tomas who were also fenses. counsel, trial, defendant, sup- to a to through
Prior filed motion press, seeking suppress police to the cocaine the recovered from his vehicle, contending that the search and seizure violated his fourth and rights amendment to be from unreasonable searches fourteenth free motion, argued and seizures. In his that at the time stopped change, pos- improper his car for lane “the did arrest, sess or probable support cause a reasonable stop.” Nonetheless, ‘Terry’ defendant contended that ordered vehicle, him him, “performed out of the handcuffed a full search vehicle,” during they containing which recovered a box cocaine. and, argued illegal Defendants that the search and seizure was accord- ingly, sought suppression illegally fruits derived from the search “all Ayala seizure.” Codefendants and Cantuo filed also motions suppress, and hearing the trial court conducted on all three motions. hearing, Carvajal
At the Officer Andrew April testified that on Chicago he was a member of police department’s long-term with, narcotics investigation team when he met received informa- from, tion paid Carvajal confidential informant. Officer classified informant as “reliable” and indicated that he had received informa- tion from this informant on approximately to 40 over the occasions *3 past years, two and that the informant’s led information had to a number of arrests well as as the seizure of He only narcotics. could recall three occasions where tip prove the informant’s did not to be ac- occasion, curate. On this Carvajal the informant told Officer that “he had information a shipment that had cocaine arrived” at a residence *** located at 4405 night South Trumbull “either the before or two nights Carvajal before.” The informant further informed that a man named at and “Carlos” resided that address described him a short as Hispanic male with a slim build who was his late thirties. The did identify provide any specific informant not defendant or informa- pertaining Moreover, tion to him. the informant did not provide any information as to packaged. how narcotics were At the conclusion informant, of the conversation with Carvajal his confidential Officer meeting relayed provided by conducted and the information hearing informant the other members of his After team. of the tip, substance informant’s the team decided to conduct a surveil- operation Carvajal lance at 4405 Accordingly, South Trumbull. Officer and approximately 10 other at the officers commenced surveillance South Trumbull at 3:30 approximately p.m. address
In role explaining operation, in the surveillance Officer Carva- jal plain testified that he wore clothes sat in an and alone unmarked alley in an near the residence. He had radio contact with parked
car team. Berter- point, the other members of his At some Officer Robert mann, residence, front engaged who was surveillance in the of the the other over that in the informed officers the radio defendant was relayed that Specifically, area. Officer Bertermann over the radio vehicle, approached defendant and a female 4405 South Trumbull in a that defendant conversed with a man later identified as codefendant house, Ayala, bag, then Ayala Carlos entered the retrieved defendant, ac- which he handed to and that defendant and the woman away. him to their and drove Officer Car- companying returned vehicle vajal position never saw from in the rear of his surveillance explained the South Trumbull residence. He defendant was bag no one receiving arrested had seen Instead, mobile on defen- commit crime. surveillance commenced dant’s vehicle. he
Officer Bertermann confirmed that assumed a surveillance April at the front of the South Trumbull residence on position approximately He approximately p.m. at 3:30 further confirmed at Jeep he arrive 4405 South Trumbull in a p.m, 5:30 saw defendant at female identified as occupant, vehicle that contained a who later Vargas, Ayala steps converse with on the front Candelaria Carlos he to hear position, of the residence. From his surveillance was unable the contents of five-minute conversation. At the conclusion of the conversation, Ayala residence Officer Bertermann observed enter the containing a emerge large plastic bag thereafter with a shortly 15 inches and 6 inches square-shaped approximately high box that was box, Officer Although he was unable to the contents of the wide. see defendant, placed then it Ayala Betermann saw hand the box to who on Trumbull Avenue. Jeep proceeded in the to drive northbound mobile members the surveillance team then commenced Several surveillance on defendant’s vehicle. four-person team that part Fernando Velez
Officer on car. engaged in mobile surveillance defendant’s Mobile surveillance approximately Trumbull Avenue and concluded commenced South Kennedy Officer Expressway. hour later 4000 North on the one make two violations near explained he witnessed defendant lane Velez change lanes Diversey Avenue. observed defendant Specifically, *4 However, was using indicator. because Officer Velez without his turn flash- equipped was not driving an unmarked vehicle that pull over equipment, or he was unable ing lights emergency the of several Accordingly, he obtained assistance defendant’s vehicle. District, vehicle. from the 17th who curbed defendant’s officers pos- he stop, conceded that At the time of the traffic Officer Velez Nevertheless, a search nor sessed neither warrant an arrest warrant. stopped, after defendant’s vehicle was Officer walked to Velez car, officer, revealed that he defendant’s identified himself as a had been part investigation, was of a narcotics accepting seen a box from the South Trumbull residence that was immediately acknowledged under surveillance. Defendant that he had received a further containing box narcotics at the residence. Defendant stated in the Vargas, passenger, that Candelaria was not involved confession, Following transaction. defendant’s Officer Velez recovered 5,118 cocaine, a Mr. containing grams Coffee shrink-wrapped box sitting which in plain view in the of the backseat vehicle. After he narcotics, recovered placed custody the Officer Velez defendant in used his radio to inform the remaining members of the surveillance team that narcotics had car. been recovered from defendant’s Officer acknowledged Velez that defendant did not receive ticket for traffic violations and that he did not mention the lane violations in report prepared arrest. defendant’s Vargas
Candelaria confirmed passenger that she defen- April 1, 2004, dant’s car on when police stopped ap- the vehicle at proximately p.m. 6:30 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 day however, and that Ayala; defendant conversed with Carlos she did Ayala see hand defendant a After package. leaving South residence, Vargas explained Trumbull driving that defendant “was fine.” She did not any changes observe defendant lane make without using indicator; rather, his turn move, put he did he did “[i]f signal vehicle, on.” After stopped ap- officers two proached car, immediately and one of the officers removed “quickly” placed from car and him in handcuffs without engaging any prior conversation. then Vargas exited the car herself and was away also handcuffed and led then from vehicle. She saw bag officer remove a from the rear of the car. denied Vargas any place conversation had prior bag taken to the removal “[t]here wasn’t time.”
While Officer Velez commenced mobile surveillance car, Carvajal Officers and Bertermann remained in their surveillance positions near South Trumbull residence. At approximately same stopped time that Officer Velez defendant’s vehicle illegal changes, defendant had made two lane Bertermann Officer observed codefendant arrive South Cantuo at the Trumbull residence. Ayala Officer ap- Bertermann saw hand a box that was Cantuo proximately observing 10 inches and 8 wide. long inches After *5 he had witnessed transaction, Bertermann believed Officer
second on mobile surveillance Can- and commenced narcotics transactions that Officer Velez’s radio transmission He then heard tuo’s vehicle. Thereafter, Of- defendant’s vehicle. had recovered from narcotics been Cantuo, of his who consented to a search confronted ficer Bertermann search, recovered a box Officer Bertermann During the vehicle. vehicle. Defendant from the backseat Cantuo’s containing cocaine South Trumbull. transported back to 4405 were then both and Cantuo Thereafter, residence, arrested the South Trumbull police entered containing cocaine a suitcase Ayala, and recovered codefendant Carlos Ayala’s garage. trunk in parked of a vehicle from the testimony, parties the delivered of the live Upon the conclusion initially emphasized that Defense counsel closing arguments. not contain suf- defendant and did tip did not mention informant’s an address and detail; rather, simply provided informant ficient the time of the argued that at Accordingly, name counsel “Carlos.” suspicion that defendant did not have reasonable stop, police tip. based on the informant’s in narcotics transaction involved Thereafter, that the issue of whether counsel conceded essentially a cred- traffic violations was actually alleged committed the testimony of Officer conflicting on the ibility determination based However, if the argued counsel that even Vargas. and Candelaria Velez vehicle after curbing in initially justified were investigatory Terry conducting an witnessing two lane violations and reasonably related to the were not stop, subsequent their actions about the inquiring that instead of scope stop. Counsel noted began discussing the narcot- violations, immediately lane Officer Velez emphasized that the defendant. Counsel investigation ics with that traffic violations and purported for the never ticketed defendant Accordingly, report. in the police not mentioned the violations were They were not Terry type stop. not a argued that “this was counsel making probable lack of They were change. a lane investigating case,” and, was war- accordingly, suppression stop in this type cause ranted. evidence, trial court denied defendant’s reviewing
After no the trial court found delivering ruling, its suppress. In motion unable to noting that she was credibility Vargas’s testimony, 1, 2004, and April itinerary place that took any social details as to bias, which testimony was tainted Vargas’s further found be, might with relationship, whatever on her “predicated found that “the officers’ contrast, trial court In defendant.” on their credible.” Based accurate and succinct and testimony was justified stop- were found that testimony, the trial court illegal ping witnessing defendant execute defendant’s vehicle of- changes. lane further it of “no concern” that the court found [traffic violation] ficers’ “initial interaction did not relate to the observed,” stating: be could
“I would that officer ad- don’t believe Constitution constrain initially problem dress that item first. I have no with officers investigation, to this let- making inquiries these relative narcotics I ting period [defendant] know he watched for a of time. has been my we good police likely consider that It is view that work. -certainly never when a reached traffic Defendant — immediately consistent what I to be believe common sense— then, now, puts admitting in a himself situation where is *6 Vargas’ that the narcotics are his and not Ms. out of some sense nobility juncture admission, ***. The Defendant makes the citations, stop, presence and the traffic or of a absence in insurance, completely Driver’s License or falls a distant second the investigation.”
Thereafter, the as “spontane- court classified defendant’s admission and knowing, voluntary ous” found that “he made and intelligent, waiver when he to agreed the search the vehicle sui sponte [sic] being investigation confronted alone.”
After the suppress, trial court denied his motion to counsel, retained new and newly with the assistance of his retained counsel, suppress filed a motion seeking incriminating to state- police ment that he following stop. sup- made to the traffic He argued pression was warranted because he never informed of his was Miranda rights and subjected because the statement was made after he was to “psychological mental and coercion.”
Thereafter, hearing trial court conducted a defendant’s newly suppress filed motion to was his statement. Before evidence presented, however, defense counsel informed the court that defendant suppression withdrew his contention that of his statement was war- police ranted due to is- purported specified coercion and that the sole suppression sue before the court whether was warranted because Miranda rights his were violated. upon testify
Officer Velez was first witness called testimony prior hearing. was consistent with that offered at the Specifically, commencing Officer Velez that after testified mobile car, surveillance on two he witnessed defendant make over, improper lane Once he changes. pulled approached defendant was defendant, upon learning speak English, that defendant did not in he Spanish conversed with defendant and informed defendant that police engaged operation was a officer in a narcotics surveillance Trum- removing a from the South had been seen box that defendant picked he had immediately acknowledged that Defendant bull location. box, but denied that his there were narcotics up a box and that Officer Velez in the narcotics transaction. passenger was involved statement,” [the] “volunteered that at the time defendant testified he not informed placed not under arrest and had defendant had been Moreover, defendant was rights. his Miranda defendant of acknowledged his statement. Officer Velez prior giving handcuffed nearby, officers but denied eight there were other Fol- provided the time he his statement. defendant was surrounded at confession, the box from Officer recovered lowing defendant’s Velez the backseat of the vehicle. that after he explained on his own behalf. He
Defendant testified they close to the car and pulled by police, the officers “came over pulled us out of the car. They opened They us. the doors. surrounded Thereafter, Vargas were on us.” he and they put And the handcuffs lot, parking to a police cars and he was driven placed separate Defendant a search of his vehicle. commenced where rights, but not been informed of his Miranda confirmed that he had police. Specifically, with the indicated that he never conversed possession he was in he informed the officers that denied that his vehicle. gave permission or them to search narcotics testimony, the court denied the aforementioned trial hearing After initially The court suppress motion to his statement. motion that he had acknowledged his written noted that defendant in the mo- and, accordingly, allegations made a statement testimony. live The court with defendant’s tion were inconsistent motion allegations in the written *7 accept that it would the indicated fact, made, suppression that had, in been and held that a statement voluntary to the extent because the statement “was was not warranted made and point under arrest at the it was the Defendant was not any rights him at that give under Miranda to obligation there was no time.” motions, parties the pretrial
Following the denial of defendant’s trial, parties bench the At the start of defendant’s proceeded to trial. suppression prior the two testimony provided to the stipulated testimony. to live was the sole witness hearings. Officer Velez 1, 2004, a cardboard he recovered trial, explained April he that on At “ten and half bag that contained plastic in a Mr. Coffee box encased stipulated then cocaine, parties kilograms of heat sealed.” 5,118 of grams maintained and that custody properly the chain of hear- reviewing prior the from the box. After were recovered cocaine posses- of convict defendant trial court declined to ing transcripts, the
489 instead, and, of a substance intent to deliver sion controlled with of a possession him the lesser-included offense of guilty found of presided controlled The trial court then over defendant’s substance. sentencing and in hearing, considering arguments the advanced aggravation mitigation, years’ imprison- 10 sentenced to ment, “the the on minimum allowable under law” based [sentence] the amount of cocaine recovered from defendant’s vehicle. motion, posttrial
Defendant a his seeking filed reduction of sentence, Thereafter, timely trial which the court denied. filed a of appeal. notice appeal, solely
On his contests trial court’s denial of motion to no suppress cocaine seized from his car. He advances argument contesting pretrial trial court’s denial of to his motion based suppress purported his statement Miranda violations. Initially, argument we must address the State’s that defendant has forfeited appellate review of this issue because he failed to properly preserve Specifically, this challenge claim. defendant failed to the trial ruling court’s on motion suppress posttrial his to motion. rule, As a properly preserve review, to an issue for appellate timely defendant must make a objection at trial and include the error posttrial in a written Enoch, motion. v. Ill. People 2d (1988); Jones, People However, v. 364 App. Ill. 3d case, this we note orally that defense counsel informed the court that preserve he wished to all “appellate rights regard defendant’s legal filed,” to motion previously [was] no State made objection to counsel’s Moreover, trial, defense statement. following trial, defense counsel made an oral for a again, motion new State made no objection. Ramirez, See Ill. People App. 3d (2000) (declining view the argument to defendant’s as waived when objection the State made no to defense counsel’s oral motion to preserve Enoch, appellate rights); see also (recognizing right at 188 the State can its waive to assert forfeiture objection based on defendant’s failure to raise a trial and file a written if the posttrial object motion State fails trial). Furthermore, motion for oral a new implicates defendant’s claim fundamental constitutional concerns it is (2008); subject plain Bui, error review. 3d 397 615(a). reasons, 134 Ill. 2d For R. these we will address the merit his appeal. matter, preliminary
As another we note that defendant acknowl- edges brief opening provide transcripts that he has failed to portion joint hearing conducted on December 2004. As general rule, sufficiently *8 appellant’s it is the burden to appellate review and all meaningful for complete record to allow in the record will be resolved incompleteness arising from the doubts (1984); 389, 99 Ill. 2d 391-92 O’Bryant, Foutch v. against appellant. (2007). case, 998, In this Michael, App. 374 Ill. 3d 1007-08 Koppel v. 6, 2004, conducted and was hearing commenced on October joint 2004, 26, hearing days. On October period over a of several 14, 2004, counsel to to allow codefendants’ continued until December Defendant, however, unable to has been call one additional witness. 14, 2004, continuance date. transcript from the December procure court that when he defense counsel informed this argument, At oral he was told that the case was reporter’s the court office contacted date; however, unable to obtain an af for that he has been on call she has been on medical leave. reporter from the court because fidavit 14, court that he believes the December further informed this Counsel 2004, appeal. to resolve defendant’s We hearing date is not relevant appeal. the merit of defendant’s now turn to ruling on a motion reviewing appeal In from a trial court’s adopted by the two-part standard of review suppress, apply we States, 517 U.S. in Ornelas v. United Supreme United States Court (1996). 1657, People 690, 699, 116 S. Ct. 134 L. Ed. 2d (2006). Accordingly,the trial court’s Luedemann, 530, 542 222 Ill. 2d only be reversed for clear error and will findings factual are reviewed evidence. v. Soren weight the manifest they against if are T., 3d (2001); App. re Mario 376 Ill. son, 2d In 196 Ill. to whether However, ultimate decision as the trial court’s Sorenson, Ill. 2d at de novo. is warranted is reviewed suppression case, does not 431; T., In this Mario 472. Accordingly, court’s factual determinations. challenge any of the trial challenge to the trial court’s legal court is his the sole issue before this de novo. disposition, which we review ultimate erred in the trial court appeal, defendant contends On his fourth violated denying suppress his motion to searches and seizures free from unreasonable right amendment to be traffic he committed several car after they stopped when narcot in conversation about their immediately engaged violations and offenses. the traffic inquiring into investigation instead of ics reason stop, police lacked at the time of Defendant maintains that offense, and, narcotics he had committed a suspicion to believe able when the traffic prolonged accordingly, police unjustifiably The State investigation. of their narcotics commenced discussion they reasonable car had stopped who that the officers responds offense a narcotics had committed that defendant believe informant. Carvajal’s confidential tip provided Officer based on the a discus- Accordingly, justified engaging were immediately operation sion about their narcotics surveillance *9 they curbed vehicle. recog of the States
The fourth amendment United Constitution houses, in their “right people persons, nizes the of the to be secure effects, searches and seizures.” U.S. papers, against and unreasonable 1 Const., to apply of fourth amendment guarantees amend. IV* through process states the due clause of fourteenth amendment. (1994). James, People 302, v. 163 Ill. 2d 311 Reasonableness is the “ ” v. ‘central of the amendment. Illinois requirement’ fourth 330, 946, McArthur, 326, 838, 847, 2d 121 531 U.S. 148 L. Ed. S. Ct. (2001), 739, Brown, 730, 949 U.S. 75 L. 2d quoting Texas v. 460 Ed. 502, 512, 1535, (1983); Conner, also v. People 103 S. Ct. 1542 see 358 (2005). App. 945, 3d 949 Ill. v. Supreme ruling
Pursuant
to
United States
Court’s
in Terry
Ohio,
1,
889,
(1968),
392
20 L.
2d
U.S.
Ed.
Under some an informant’s tip may officers with suspicion necessary the reasonable to a proper effectuate Terry stop. Lee, 476, (2005); Miller, v. People People 214 Ill. 2d 487 v. (2005). 898, 355 Ill. App. 3d 901 The informant’s classification as citizen or paid “unimportant.” informant informant is v. Munson, 104, (2002); Nitz, 206 Ill. 2d also People 123 see 371 Ill. “[cjourts (2007) 747, 3d App. (recognizing longer 752 employ no rigid presumptions based on the distinction between citizen informants guarantee 1Wenote that a similar is constitutional also reflected article I, 6, 1970, I, §6 section Ill. the Illinois State Constitution. Const. art. (“people right houses, persons, papers shall have to be secure in their and seizures”). possessions against searches, appeal, other [and] unreasonable On however, solely challenges legality of the search and seizure grounds. under federal informants”). informant’s Rather, whether an to determine paid to consider suspicion, important it is reasonable
tip provides content of the quality reliability as well as informant’s 257; 207 Ill. 2d at provided. Lampitok, that he or she information “the courts should consider Miller, Specifically, 3d at 901. App. basis of the informant’s tip whether the established tip, detail of the he or she witnessed the informant indicated knowledge, whether activ accurately predicts future tip whether the activity, criminal (2005); 770, 776 Kline, App. Ill. 3d People v. ity suspect.” of the Indeed, informant’s “[a]n 257-58. 207 Ill. 2d at Lampitok, see also important indicator future behavior is ability person’s predict [informant’s] significant aspects reliability ‘[w]hen that the verified, only there reason believe [are] [is] predictions informed, at least he was well honest but also that [informant] ” Chavez, stop.’ People enough justify well White, 325, 332, 110 L. Ed. 2d U.S. (2001), Alabama v. quoting Generally, the informa “where 110 S. Ct. *10 to have does not claim and the informant tion lacks sufficient detail is not reliable without activity, the information any criminal witnessed Jackson, stop may a not be warranted.” corroboration and 719, 731 App. 348 Ill. 3d arguments respective their rely support on Chavez to parties
Both thereof, suspicion in this case existence, reasonable or lack of as to the Chavez, surveil police a tip. In on the informant’s commenced based from a known of information upon receipt operation lance on information provided police had with informant who confidential the seizure of occasions, resulted in eight of which prior nine “Victor,” a occasion, revealed that the informant On this contraband. “ ” would drive pounds, weighing male’ tall ‘Latino 5-foot-10-inch of kilograms two pick up tavern to specific to a a Ford automobile tavern, police near the position From their surveillance cocaine. 7:50 approximately at arrive at the tavern the defendant observed and the tavern The defendant entered driving a Ford Taurus. p.m. object, which brick-shaped carrying minutes later exited five defendant’s car stopped the of his car. Police placed in the backseat learning that the defendant’s tavern, one block from object, which Chavez, brick-shaped seized the name was Victor Chavez, App. Ill. cocaine, vehicle. from the wrapped of consisted 23-24. 3d at suppress, to motion denied the defendant’s
The trial court substance of a controlled possession of thereafter, he convicted of his sought reversal the defendant appeal, On intent to deliver. tip did informant’s that the conviction, pertinent part, in asserting, stop. effectuate a suspicion Terry with reasonable to disagreed. Initially, noted that the informant had a “formidable We we out eight of the fact that track record rehable information” based on Chavez, nine in the of contraband. prior tips of his resulted seizure Thereafter, App. 327 Ill. 3d at 32. we noted: confirmthe informant’s “Importantly, the officerswere also able to they as to prediction of defendant’s future behavior were able carry kilogram observe two of what looked like bricks were cocaine out of the tavern. It is critical the cocainebricks that visible from as defendant crossed the street and were also visible the outside of defendant’s vehicle. Had the bricks been obscured view, from would sufficient not have had confirmation specific committed, facts that the had or articulable commit, Chavez, about to crime.” Ill. App. 3d at 32. tip provided Because the informant’s with the reasonable suspicion necessary effectuate stop, upheld we Terry Chavez, defendant’s conviction. 36. case, informant,
In this Carvajal’s Officer like the informant Chavez, had a track “formidable record of reliable information.” Chavez, 327 Carvajal Ill. at 32. App. 3d Officer testified that provided informant had him with to 40 tips on 30 occasions and that had tips resulted in the seizure of oc contraband all but three Despite record, however, casions. impressive informant’s track we tip do not find his provided officers with reasonable Chavez, defendant had tip committed a narcotics Unlike the offense. the informant’s tip any prediction this case was devoid of of future simply behavior. informant “he Carvajal revealed to Officer had information shipment that a of cocaine arrived” had at a residence *** located at 4405 South night Trumbull “either the before two or nights “Carlos,” before” and a man named who slim was a thirties, Hispanic male in his late resided at that address. In addition prediction behavior, lack of tip future also failed basis knowledge. D.W., establish informant’s See In re *11 341 Indeed, App. 3d did informant not reveal that any had witnessed criminal act or how he his explain garnered Jackson, information. App. 3d at 732. We also find that Ward, tip informant’s in this lacks 371 Ill. specificity. App. case 3d (finding tip, alone, provide police that an informant’s did not suspicion Notably, reasonable because it lacked specificity). any informant did not details shipment, of the cocaine includ ing amount of that shipped, shipment, cocaine was the method of or the manner in which the cocaine packaged. was
Finally, nothing police there cor- suggest is that were able to provided by that were confidential robórate of the details Kline, App. 355 Ill. 3d at 776-77 stop. informant at the time of the See tip provide police did not with reasonable (finding that an informant’s not contain sufficient details that suspicion tip because the did defendant). Indeed, seizing the while prior were able to corroborate in engaged in Chavez were visible to the officers the cocaine bricks case, un in that Officer Bertermann testified that he was surveillance had received from bag able to see the contents of the Moreover, Carvajal Chavez, 32. Officer testi Ayala. 327 Ill. 3d at time learned that the man who resided at fied that the first was at the time of the South Trumbull residence was named Carlos was Ayala’s Although emphasizes arrest. the State that defendant transactions, the record stopped suspicious observed two approximately car was seized at actually reveals that defendant’s Trumbull same time that codefendant Cantuo arrived at South Bertermann testified that he heard Officer residence. While Officer had been recovered from radio transmission that narcotics Velez’s after he commenced mobile surveil defendant’s car within seconds vehicle, the record is devoid of evidence lance on codefendant Cantuo’s time he was aware of the second transaction at the that Officer Velez Indeed, defendant’s vehicle. Officer Velez testified that at stopped informing other members of his time he made his radio transmission vehicle, he did team that he had recovered narcotics from defendant’s doing. other team members were not know what his tip in disagree with the State that the informant’s Accordingly, we suspicion with reasonable to believe that provided police this case they narcotics transaction at the time engaged defendant had police, determine whether the absent stopped his vehicle. We must now had committed a narcotics reasonable to believe defendant right be free from offense, violated defendant’s constitutional they stopped seizures when unreasonable searches and immediately initiated conversation car for a traffic violation operation. regarding the narcotics surveillance Defendant, Gonzalez, (2003), relying People justified stopping although contends that Officer Velez changed signal lanes without after defendant had defendant’s vehicle confronting defendant with evidence of ing, subsequent conduct in it impermissible operation surveillance the narcotics change violations” and reasonably related to the lane way “was in no however, State, cit stop. necessarily the duration of prolonged Harris, 228 Ill. 2d recent decision ing supreme our court’s question Velez’s (2008), it is immaterial that Officer responds and that change lane violation reasonably related to the was not ing
495 the dura- questioning unreasonably is no his increased there evidence of the stop. tion
Initially,
agree
that defendant was seized
parties
we note
the
420,
McCarty,
468
stopped
when
vehicle. Berkemer v.
U.S.
(1984) (“
436-37,
317, 332,
3138,
‘stop
82 L.
S. Ct.
3148
Ed. 2d
104
“sei
ping
detaining
occupants
an
its
constitute a
automobile
’ ”
Prouse,
amendment), quoting
zure”
under
fourth
Delaware v.
the
(1979);
648, 653,
660, 667,
1391,
440 U.S.
59 L. Ed. 2d
99 S. Ct.
1396
(2003).
7,
Bunch,
parties
see also
207 Ill. 2d
also
to
vehicle
agree
stop
that Officer Velez’s decision
lawful,
and, accordingly,
reasonable
seizure
because he had
the initial
probable cause to believe that defendant had committed traffic viola
Whren,
810,
95,
1772;
tion.
a lawful traffic
change the nature
the defendant’s detention or
request
prolong
did not
Gonzalez,
Ill. 2d at 236.
stop.
of the traffic
Thereafter,
Supreme
States
Court cases
subsequent
two
United
of the fundamental nature
viability
doubt on the
of the “alteration
cast
in Gonzalez. In Il-
portion
scope prong
of the
established
stop”
Caballes,
842, 125
543 U.S.
160 L. Ed. 2d
S. Ct.
linois v.
*13
the Fourth
(2005),
question
“[w]hether
court addressed the
the
reasonable,
justify using
articulable
requires
Amendment
during legitimate
stop.”
a
a
traffic
drug-detection dog
a
to sniff vehicle
he was observed
lawfully stopped
The defendant in Caballes was
trooper
up speeding
a
exceeding
speed
the
limit.
one state
wrote
While
ticket,
the defendant’s car with
another officer walked around
trunk, and
dog.
dog
The
alerted at the
trained narcotics-detection
trunk,
alert,
the defendant’s
dog’s
on the
the officers searched
based
the defendant’s
marijuana,
arrested the defendant. After
found
and
denied, he
convicted of a narcotics of-
suppress
motion to
was
was
845-46,
Caballes,
406-07,
L. Ed. 2d at
125 S. Ct.
543 U.S. at
fense.
that
the officer’s use of a
rejecting
argument
at
In
836-37.
the defendant’s constitutional
dog infringed on
narcotics-detection
lawful because it
explained
stop
that the initial
rights, the Court
had committed a traf-
probable
cause that the defendant
was based
846,
Caballes,
407,
125 S. Ct.
2This is
supreme
opinion
the second time our
court has filed an
in this
initially
case. The court
opinion
considered this
case
when it filed an
affirming
judgment
appellate
(People Harris,
court
325 Ill.
(2001)) reversing
3d 262
Harris,
defendant’s conviction.
(2003). However,
2d 515
Supreme
the United States
Court vacated the court’s
judgment
light
for
remanded
reconsideration in
of the Caballes decision.
Harris,
Illinois v.
543 U.S.
161 L. Ed. 2d
“rejected
adoption of the
reasoning
[the]
that led to this court’s
stop’ portion
of the nature of the
‘fundamental alteration
prong.
prong of Gonzalez.All that remains is the duration
‘scope’
Caballes,
seizure,
During a
as occurred in both Muehler and
lawful
may
questions
original
ask
unrelated to the
detention
an
reasonable
required
independent
and are not
to form
Harris,
activity
doing so.”
Applying the violation oc- hand, no fourth amendment at we conclude that facts seized, Officer was not lawfully was Velez curred. Because defendant a conversation suspicion to commence required to have reasonable Harris, 228 operation. narcotics surveillance with defendant about the *** seizure, police may ques Ill. 2d ask (“During at 242-43 a lawful required to form original tions unrelated the detention and are not to activity doing of criminal before independent reasonable so”). Moreover, ‘compromises of possession because “the contraband ” legitimate (Caballes, no 160 L. privacy interest’ 543 U.S. at Ed. Jacobsen, at quoting 125 S. Ct. United States v. U.S. 109, 123, 85, 100, (1984)), 80 L. Ed. 2d 104 S. Ct. the infringe constitutionally protected conversation did not on defendant’s long interest in as privacy. Accordingly, as Officer Velez’s actions did not unreasonably prolong the of the fourth stop, duration no amend ment adamantly violation Although occurred. defendant contends that the necessarily conversation of prolonged stop, duration cites to no evidence to his substantiate claim. The record reveals once stopped, defendant immediately Officer informed Velez operation the surveillance and revealed that defendant had been seen Defendant, from accepting a box the South Trumbull residence. turn, in immediately acknowledged that he had a box from received residence, narcotics, admitted the box contained and informed Of ficer passenger Velez that his was unaware of the narcotics transac Indeed, tion. argument, at oral defense counsel conceded that conversation was “brief.”
Accordingly,
distinguishable
the facts in
are readily
this case
from
present
those
People Bunch,
(2003),
Notwithstanding motion sup- lack of merit press, suppression defendant contends that he is entitled to a new
500 evidence outside upon relied improperly trial court hearing because the motion, violating thus his constitutional denying his of the record defendant contends impartial Specifically, trial. right to a fair and finding that the outside the record when court relied on facts the trial hearing suppression by Vargas at testimony offered Candaleria was not credible. properly failed to that defendant again
The State contends object to defendant’s failure to argument, asserting that preserve this posttrial in a motion resulted statements at trial and judge’s the trial 186. Defendant Enoch, 122 Ill. 2d at argument. of this forfeiture this claim but cor preserve failed to acknowledges properly that he misconduct are not involving judicial of error rectly notes that claims Dameron, v. People rules of waiver. See subject to the same generally 473, Ill. 3d (2001); App. 364 People Jennings, 2d 171 v. 196 Ill. concerning the trial argument Accordingly, Hamilton, People error review. subject plain conduct is court’s (2005); App. Ill. 3d at 483. Jennings, 364 App. 361 Ill. 3d occurred, the error will be However, if determine an error even we proceedings safely conclude that the harmless “where we can deemed oc result had the error not produced have the same below would 848; Hamilton, App. 3d App. Jennings, Ill. 3d at curred.” argument. merit of defendant’s now address the at 483. We criminal constitutions afford The federal and Illinois state and, defendant is law, accordingly, every process of defendants due Const., amends. trial. U.S. right impartial to a fair and guaranteed trial, judge the trial is VI, XIV; I, §8. In a Ill. art. bench Const. Robinson, 368 (People v. apply the law presumed properly to know and (2006)) judge to for the trial permissible and it is App. Ill. 3d Hawkins, 243 Ill. (People v. credibility on the of witnesses comment (1993)). rights However, process a defendant’s due 210, 220 App. 3d evidence findings are based on judge’s the trial are violated when 836, 849 Hamilton, outside the record. See (2005) (“In based on his own trial, determination judge’s a bench the rules or by untested cross-examination knowledge, that is private process”). evidence, to a denial of due amounts relied on facts not that the trial court initially contends Defendant incredible testimony Vargas’s when it deemed Candelaria in evidence bases Defendant relationship with defendant. due to her romantic delivering its court in by the trial the remarks made contention on following statement: to the points ruling. Specifically, ac- “[Tjhis Defendant. She years junior to the woman 20 is a they really her, know where him, didn’t according companies the Tram- itinerary than to any other didn’t have social going, were address. I bull address and then to the Milwaukee Street Street credibility testimony. my in her That belief and view don’t find of her was, credibility upon she is based circumstances which by in the manner Department, the facts introduced the Police predicated on her relation- in which what I would view as bias be, may ship, [defendant].” whatever that with of the court’s statement— implication Defendant asserts that “[t]he relationship were in a rebut- Vargas [defendant] romantic —is record,” ted was her Vargas denied boyfriend. trial court Accordingly, defendant contends that impermissibly Vargas’s relied on not in facts evidence when it found testimony relationship be due incredible to her romantic defendant.
We that disagree improperly the trial court characterized the Rather, one. relationship Vargas between defendant as a romantic the court Vargas’s found that bias was her relation “predicated on added.) ship, may be, whatever that with (Emphasis [defendant].” Contrary argument, to defendant’s court did trial not characterize the relationship; it merely acknowledged the of their existence relationship uncertainty and indicated as precise some to the nature relationship. that “feelings relationship Because of bias and the [a] witness to a defendant are of material relevance” (People Gvojic, 160 App. (1987)), 3d may and the trial court comment (Hawkins, on credibility 220), witness 3d at we do not find that finding Vargas’s testimony the trial court erred in less cred ible than by that offered due to relationship officers her with defendant.
Defendant also notes Vargas’s testimony that court found that credibility lacked any based fact on the that she “didn’t social have itinerary other than to the then Trumbull Street address and to the Milwaukee Street address” even though testimony there was no of- by any fered party regarding Milwaukee Street address. Defendant is correct that record is devoid of reference to a suppression hearing, Vargas Milwaukee Street address. theAt testified 1, 2004, Rockford, Illinois, that on April she resided in and she ac- companied Trumbull Accordingly, defendant to the South address. the extent the trial that court mentioned a Milwaukee Street destina- tion, However, this was error. we this deem error harmless. The court noted correctly Vargas concerning failed to details her plans travel other acknowledging defendant than brief visit to the South Trumbull Moreover, finding address. the court’s that Var- gas’s testimony by less credible than that offered offi- cers solely provided was not based on details or lack thereof her large part was based rather, decision
Vargas; the court’s defendant. relationship with facts outside the court relied on
Finally, defendant contends it found that suppress when his motion denying the record in Defendant is of his vehicle. to a search orally consented record that defendant is evidence in the that there no again correct the court’s reliance Accordingly, of his vehicle. consented to a search However, was error. we uphold the search on defendant’s consent to harmless, find conclude the result error, too, because we this Notably, while this error. the same absent have remained would itself, he never constitutionality of the challenged the confes following his recovery of the cocaine challenged Officer Velez’s to search lack of consent Indeed, notwithstanding defendant’s sion. After recovery of the box was lawful. vehicle, Officer Velez’s from the containing a box cocaine receiving defendant confessed to arrest residence, probable had cause Officer Velez South Trumbull box, sitting in which was seizing justified defendant and was generally People vehicle. See view, of defendant’s plain backseat Brown, 460 U.S. (2005), Texas v. Jones, quoting 215 Ill. 2d (1983), 502, 513, quot 730, 741-42, 103 S. Ct. 75 L. Ed. 639, 651, 100 573, 587, L. Ed. 2d York, 445 U.S. v. New ing Payton (1980) may seize an stop, police a traffic (during S. Ct. “ ‘ is cause to as “assuming probable there plain that is in view object ’ ” omitted)). activity” (emphasis with criminal property sociate the trial court. judgment of the Accordingly, we affirm the Affirmed.
THEIS, J., concurs. CUNNINGHAM, dissenting: JUSTICE convic- the defendant’s and would reverse respectfully I dissent tions. testimony which “taxes the prosecution presented
areWe a criminal support therefore cannot the credulous” and gullibility of 318, 302, 497 N.E.2d App. Ill. 3d 147 People Wright, conviction. v. (1986). granted the defendant’s court should have 1261, 1271 The trial seized, sup arrest, the evidence his excluded quash motions to upon It is axiomatic alleged statements. pressed the defendant’s the cred conviction, is afforded to great deference a criminal review of chal a conviction must affirm of the trier of fact. We ibility findings testimony if incredible evidence or on insufficient lenged as based evidence, could testimony and fact, looking at that trier of rational
503 proven have found that elements of the crime were essential beyond Smith, 532, 541, People a doubt. v. 185 Ill. 2d 708 reasonable (1999). 365, However, reviewing N.E.2d a court also has solemn duty to a to prove reverse conviction where the evidence is insufficient beyond Smith, guilty the defendant a doubt. 185 Ill. 2d at reasonable 541, Where, case, 708 N.E.2d in main at 369. as this the State’s wit impeached testimony, ness has been as to a element of his critical coupled drugs testimony regarding with his incredible how the came car, to be discovered the defendant’s the issue of reasonable doubt is to as to weight given raised. “While due must be the trier of fact *** credibility witnesses, duty of is our if judgment ‘it reverse ” the evidence is all not sufficient remove reasonable doubt ***.’ 200, 206-07, (1977), v. Morgan, 69 2d 370 N.E.2d quoting People Nunes, 143, 146, 30 Ill. 2d N.E.2d (1964). hand,
In the case at majority, unlike the I do not believe we say can or presented should that the by evidence State was suf ficient to propriety remove all reasonable doubt to the police as conduct Mathis, guilt. People therefore 1039-40, police N.E.2d The officer stopped who the defendant’s car claimed that he so change did for lane violations. But own his admission he never mentioned these viola Instead, tions to the defendant. he told the defendant he was the subject drug investigation. of a police The officer claimed that im upon mediately hearing statement, this the defendant abandoned all caution and common just sense and admitted that he had received a of drugs box and pointed to a on box his backseat. Because I find the testimony the arresting police of officer this case to be fantastic and incredible, I stop would find no basis for the of the defendant. This in require suppression turn would police his statement to the and the evidence vehicle, necessitating recovered from his reversal his I conviction. therefore would not reach issue police of whether the stop unlawfully extended.
The State asserts officers who stopped car a had that the reasonable transporting drugs just a illegal which had obtained from home according informant, where shipment to a reliable of cocaine had been received one days majority’s or two earlier. I concur with the determination that for stop had insufficient cause this The arresting police basis. officer that another officer had knew seen the defendant at the home on South Trumbull Avenue and home, receive from an occupant plastic bag appeared which square away contain a box. The car. defendant then drove *19 arresting police acknowledged police report that his errone- officer carrying seen a Mr. box ously stated that the defendant was Coffee the asserts Despite from the house on South Trumbull. what State car, officers, ample stop police defendant’s the who cause to the away they the when saw the were several blocks from residence stop car, immediately chose to him rather than follow hour, They traffic, ultimately him hour him. followed for one rush using police seven vehicles. later, Kennedy stop did defendant hour on the they
When the one earlier a officer Expressway, allegedly police it was blocks making changes using two had observed the defendant lane without true, supported turn If of the his indicator. this would have police report for arresting vehicle a traffic violation. But the officer’s The arrest- any change of the incident did mention lane violations. ing police up admitted when he to the defendant’s officer walked any it no the stopped, car after was he made mention to defendant whatsoever, nor did he for his traffic violation ask defendant card, license, registration, any driver’s insurance vehicle or other Instead, customarily he requested during stop. identification a traffic that, immediately part investiga- as told the defendant of a narcotics tion, accepting the defendant had been seen a “box” from a residence. previously The had admit- police though officer asserted this even he only “bag” he ted that was told that the defendant had received a appeared allegedly to contain a box. The defendant then which spontaneously transporting drugs volunteered that he was which man house on Trum- had received from a named Carlos at the South pas- allegedly arresting He officer that his police bull. also told drug upon this senger was not involved in that transaction. Based stunning, admission, police box spontaneous seized Mr. Coffee 5,118 car, from the found it to backseat contain bags, grams apparent cocaine in and arrested defendant custody. No citation was ever issued companion also took his into the two for which the offi- the defendant for traffic violations only In place. had him in first fact the they stopped cers testified later, first at the appearing mention of traffic violation came much any hearing suppress. on the defendant’s motion to hearing testimony companion
The of the defendant and his at the differed suppress the defendant’s statements motion companion The and his significantly police. from that stopped having committed testified that he was without not observe companion traffic testified that she did violations. using signal. changing lanes without When immediately ap- defendant, two officers police stopped took of his car proached the car and one of them the defendant out saying him word to him. The defendant had handcuffed without *20 also spoken point. companion got to them at that The defendant’s out of the car and was handcuffed. Without conversation with the defendant, bag searched the car and removed a from it. If true, suppression. this of the events version would necessitate majority entirely credibility defers to the trial court’s noted, I although great determinations. As have deference is be af- forded findings, reviewing to such we as a court are not to act as a stamp, agreeing findings rubber all instances of trial court patently improbable testimony. no matter how The facts presented this by give meaning testimony case new that “taxes the gullibility significant of the credulous” as in Wright. described It is that the judge charged trial could have convicted the defendant of the offense of possession of cocaine with intent to deliver. He found to be in possession 5,118 grams grams of a substance which 995.3 were tested and found to be But judge cocaine. the trial convicted him only of the lesser included of possession offense of a controlled substance and sentenced him permitted to the minimum term prison considering law. Even prior convictions, the defendant had no these are not indications of a belief strong Again, in the State’s case. we reviewing as a duty totality court have a examine of the presented facts and circumstances as evidence and to reverse a convic- tion if the evidence is insufficient to remove all reasonable doubt of guilt.
I testimony find that the arresting police grossly officer was improbable and as stop, incredible to the basis for the the subsequent events, spontaneous immediately upon confession being stopped. entirety Because the upon State’s case was based evidence, the defendant’s conviction be should reversed.