FIFTH DIVISION
January 12, 2001
Nos. 1-98-3963 & 1-98-3964 (consolidated)
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERIBERTO JUARBE and IGNANCIO SOTO, Defendants-Appellants. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Cook County
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Following a bench trial, defendants Heriberto Juarbe andIgnancio Soto were convicted of possession of a controlledsubstance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West1998)), and sentenced to prison terms of 22 years and 18 years, respectively. In this consolidated appeal, defendants contend thatthe trial court erred in: (1) denying their motion to quash arrestand suppress evidence; (2) admitting other crimes evidence; and (3)finding that Soto was proven guilty beyond a reasonable doubt. Forthe reasons that follow, we affirm.
Prior to trial, defendants filed a motion to quash arrest andsuppress evidence, alleging that the police officers lackedprobable cause to stop Juarbe's vehicle. Defendants also allegedthat they were seized and detained an unreasonable amount of timeand that Juarbe's vehicle was searched without his consent or, ifhe did consent, the search exceeded the scope of the consent given. At the hearing on the motion to quash arrest and suppressevidence, Juarbe testified that on March 13, 1997, he was drivinga truck he owned with Soto as a passenger, headed east on FrontageRoad in Westchester, Illinois. Juarbe testified that when hereached Mannheim Road, he stopped at a red light. When the lightturned green, he drove through the intersection to the entranceramp leading on to the eastbound Eisenhower Expressway. As Juarbeexited the expressway at Harlem Avenue, he noticed an unmarkedpolice car with its lights activated. Juarbe testified that he didnot think the police car was following him, but when the police carsignaled him to stop, he did so immediately. When the officer,Sergeant Kevin Keag, asked for Juarbe's license and registration,he provided both. When Juarbe asked the officer why he wasstopped, Keag did not respond and directed Juarbe and Soto to exitthe vehicle immediately. Juarbe admitted that he gave Keag consentto search the vehicle.
Subsequently, Officer Dominic Luciano arrived. Keag searchedJuarbe's vehicle while Luciano searched both Juarbe and Soto. Juarbe estimated that the search of the vehicle took approximately10 minutes. Keag then gave Soto the keys in order to move thevehicle, and after doing so, Soto was placed into another squadcar.
Juarbe testified that an hour passed from the time he wasfirst placed in the police car until a narcotics detector dogarrived. On cross-examination, Juarbe admitted that his vehiclehad darkly tinted windows and two separate trap compartments inboth of the rear seat armrests.
Sergeant Keag, an 18-year veteran of the Westchester policedepartment, testified that in April 1996 he became involved in anarcotics investigation with the Chicago police department gangunit, a Federal Bureau of Investigation (FBI) task force and agentsof the Internal Revenue Service (IRS), who were investigating anillegal narcotics organization operated by Anselmo Zepeda.
Keag testified that he was asked to conduct surveillance ofthe apartment of Zepeda's girlfriend, who lived in Westchester. Over the course of several months, Keag watched for Zepeda to visitthe apartment, recorded license plate numbers of vehicles thatvisited the apartment, and checked the ownership of those vehicles.
On October 21, 1996, Keag became aware of another apartmentlocated at 22 Acera Drive in Hillside, Illinois. Upon learningthat this apartment was a "stash house" leased to Zepeda, Keagtestified that he watched this apartment approximately 100 timesbetween October 21, 1996, and March 13, 1997. During hissurveillance, Keag observed vehicles arriving and leaving withinfive minutes at various times of the day and night. Keag wrotedown the license plate numbers and types of vehicles that visitedthe apartment and ran a check of the license plate numbers toobtain information on the vehicle owners. Keag discovered that avehicle registered to Juarbe visited that apartment approximatelyeight times between December 6, 1996, and March 13, 1997, the dateof Juarbe's arrest. Keag testified that Juarbe's vehicle was atwo-tone gold Chevrolet Tahoe bearing "peace" license plates. Keagalso observed a vehicle registered in Soto's name at the apartmentapproximately five or six times from October 22, 1996, until thedate of Soto's arrest. Keag testified, however, that he did notactually see Soto at the location prior to March 13, 1997, and thatwhile he recognized Juarbe, he did not recognize Soto when hestopped Juarbe's vehicle.
On March 13, 1997, at approximately 12:15 p.m., Keag testifiedthat he searched for Zepeda at 22 Acera Drive because there was awarrant for his arrest. As Keag watched the apartment, he sawJuarbe's vehicle parked there and, later, saw Juarbe and Soto leavethe apartment together. Juarbe held what appeared to be a whitepaper bag to his chest while he continually looked back and forthuntil he got into his vehicle. Juarbe was in the driver's seat andSoto was in the front passenger side of the vehicle. Keagtestified that once they entered the vehicle, he could not seeinside because the windows were tinted. Keag then drove hisunmarked squad car to Roosevelt Road and Oakridge and waited untildefendants drove away from the apartment. Keag followed defendantsand testified that he did so because he wanted to find out wherethey were going and what was in the bag that Juarbe carried fromthe apartment. Keag followed defendants from Oakridge to Harrisonuntil defendants turned right, at which point Keag lost sight ofthe vehicle. At this point, Keag contacted Officer Luciano anddirected him to travel the Eisenhower Expressway in search ofJuarbe's vehicle. Keag directed Luciano to "go by Mannheim 290 andsee if [he saw] a Suburban vehicle coming with a peace vehicle." Keag then told Luciano to "see if [he] can knock it down." Keagtestified that the meaning of his words were to follow the vehicleand look for some reason to stop it.
Keag testified that he caught up with defendants at theintersection of Harrison and Mannheim. According to Keag, he wasapproximately six cars behind Juarbe's vehicle, which was the firstone stopped at the red light. As Keag waited for the light to turngreen, he saw Juarbe's vehicle begin to slowly move through theintersection while the light was still red. After Juarbe's vehicleran the red light, Keag lost sight of it as defendants drove towardthe entrance ramp to the expressway. Once Keag caught sight of thevehicle again, he followed it. Keag also contacted IRS AgentLynette Redmer, informed her that he had seen a traffic violationand that he was going to stop the vehicle. Keag testified thatAgent Redmer approved of the stop.
When defendants exited the expressway at Harlem Avenue, Keagmoved directly behind Juarbe's vehicle, activated his lights andstopped the vehicle at approximately 12:30 p.m. Once he approachedthe vehicle, Keag asked Juarbe to exit the vehicle and to retrievehis driver's license and registration. Juarbe complied. Keag thenasked Juarbe if he had any drugs or weapons in the vehicle, towhich Juarbe responded that he did not. Keag testified that heasked Juarbe if he could look in the vehicle and told Juarbe thathe observed him run a red light at Mannheim Road. Juarbe noddedhis head affirmatively. Keag testified on cross-examination thathe did not note in his report that he informed Juarbe of thetraffic violation.
Keag also asked Soto to exit the vehicle and to showidentification. When Soto showed Keag his identification, Keagrecognized the name as the owner of one of the vehicles he had seenparked in front of the apartment at 22 Acera Drive. Keag testifiedon cross-examination that he did not include this fact in hisreport.
Keag walked to the passenger side of the vehicle and searchedunder the seats and dash, above the dash and alongside the panels,knocking to find out if there were any hollow spots contained inthe panels. Keag testified that he was looking for traps in thevehicle because the package he had seen was not visible and theorganization he was investigating was known to use trap vehicles. Keag did observe two white paper towels sitting on the back seat onthe passenger side of the vehicle. He then searched the driver'sside of the vehicle in the same manner. This search tookapproximately 10 minutes. As traffic was backing up, Keag hadJuarbe move his vehicle just west of Harlem Avenue while Keagfollowed in his unmarked squad car. Officer Luciano and defendantSoto followed in Luciano's marked police car.
At approximately 12:47 p.m., Keag radioed his dispatcher andrequested a dog to search the vehicle. The dispatcher respondedthat he was unable to get a dog to the scene. Keag instructed thedispatcher to contact the Illinois State Police. At approximately1 p.m., State Trooper Pignatello arrived with a dog, which beganthe search by sniffing the outside of the vehicle. The dog alertedon the rear doors of the vehicle. After being led into theinterior of the vehicle, the dog alerted at the armrests in thebackseat of the vehicle.
Trooper Pignatello retrieved a screwdriver and opened thearmrest. Several bundles of money were found. When TrooperPignatello opened the passenger side armrest in the backseat, hediscovered two kilograms of cocaine sitting on top of more bundlesof money.
Keag informed Luciano of the money and drugs discovered. Keagtestified that Officer Luciano told him that he saw Soto put hishead in his hands and that he uttered an obscenity. Keag testifiedon cross-examination that Soto's use of the expletive was notincluded in his report because he did not hear him say it, but hewas told this information by Luciano.
According to Keag, defendants were taken into custody atapproximately 1:12 p.m. and officially booked at the police stationat approximately 1:29 p.m.
On cross-examination, Keag admitted that he initially followeddefendants because his primary concern was the contents of thewhite bag he saw Juarbe carry from the apartment. Keag furthertestified that he never confiscated any narcotics from any of thepersons he saw entering or exiting the apartment at 22 Acera Drive.
It was stipulated that, if Officer Luciano were called totestify, he would testify that he prepared a report in conjunctionwith the case and in that report he recorded the time of theoffense as 1:29 p.m. and that Trooper Pignatello arrived with thedog at 1:45 p.m.
It was further stipulated that, if Trooper Pignatello werecalled to testify, he would testify that his report indicated thathe arrived at the scene of the stop at approximately 1 p.m.
Finally, it was stipulated that Sergeant Sam Pulia wouldtestify that audiotapes from which the transcripts were madeincluded police radio communications from approximately 12:20 p.m.to 2:40 p.m.
Following arguments of counsel, the trial court denieddefendants' motion to quash arrest and suppress evidence. Thecourt found that Keag's testimony was credible and that he hadprobable cause to stop Juarbe's vehicle after he observed thetraffic violation. The court further found that Keag obtained theproper consent from Juarbe to search the vehicle and that hisquestion to Juarbe regarding whether he had any drugs or weaponswas related to his request for permission to search the vehicle. The court also found that it was reasonable for Keag to call anarcotics detecting dog because Keag had knowledge of Zepeda's useof trap vehicles to conceal narcotics. The court ruled that thecanine arrived in a reasonable amount of time and that defendantswere detained a minimal amount of time based on the informationthat Keag had at the time of the stop.
Also prior to trial, the State filed a motion in limine,requesting leave to present proof of other crimes evidence. Specifically, the State's motion was based upon finding 62kilograms of cocaine inside the apartment at 22 Acera Drive alongwith other drug paraphernalia, including scales, calculators,packaging, duct tape and baggies. A kilogram wrapper, similar tothe one found wrapped around the cocaine seized from the vehicle,was also found in the apartment with Soto's fingerprint on it. Juarbe's fingerprint was found on one of the rolls of duct tapediscovered in the apartment.
After balancing the probative value of the evidence againstits prejudicial effect, the court admitted the evidence recoveredat the apartment based on the nexus between Soto and Juarbe and theapartment. The court found that the evidence recovered within theapartment was probative of the package found in Juarbe's vehicle.
At the bench trial, the parties stipulated to Keag's testimonyat the motion to quash arrest and suppress evidence. Keagtestified at trial that the kilogram wrappers found in the vehiclewere wrapped in duct tape. Keag also testified as to the chain ofcustody of the vehicle and the items seized from the vehicle. Oncross-examination, Keag testified that he did not see eitherdefendant touch the money found inside of the vehicle, nor did hesee either of them touch the cocaine.
The parties stipulated to the testimony of Gregory Bate, aforensic chemist, who, if called to testify, would state that hisanalysis revealed that both packages recovered from Juarbe'svehicle tested positive for the presence of cocaine. One of thepackages weighed 979.7 grams, while the other package weighed 902.1grams.
IRS Agent Mark Johnson testified regarding the items that wererecovered from the apartment at 22 Acera Drive. Johnson testifiedthat he and other agents recovered a duffle bag containing 21kilograms of cocaine and a cardboard box containing cocaine, alongwith smaller bags of cocaine found in a closet. Agents found a total of 62 kilograms of cocaine in the bedroom of the apartment.
Agents also recovered two baggies containing white powderwrapped in duct tape. Defendants objected to the relevancy ofthese items along with leases, receipts and pieces of paper withphone numbers recovered from the apartment. The court overruleddefendants' objection and found that these items were relevant indemonstrating an intent to deliver. The court stated that it couldbe reasonably inferred that these items were tools of the drugtrade.
Charles Schauer, a fingerprint specialist for the DrugEnforcement Administration, testified that a dresser recovered atthe apartment was processed for fingerprints. Schauer testifiedthat he compared the original fingerprints lifted from the dresserto Juarbe's fingerprints, and based upon a reasonable degree ofcertainty, Schauer matched one of the fingerprints taken from theinside rear of the top dresser drawer to Juarbe's left indexfinger. Schauer also processed various drug paraphernalia seizedfrom the apartment. Schauer testified that, based on a reasonabledegree of certainty, a fingerprint taken from the inside of one ofthe Ziploc bags recovered matched Soto's right thumb fingerprintand a fingerprint taken from one of the rolls of duct tape matchedJuarbe's right index finger. Schauer also found that fingerprintslifted from the apartment lease matched Soto's left index finger. On cross-examination, Schauer testified that there was no way totell when these fingerprints were placed on the items or whetherthese items were in the apartment at the time the fingerprints weremade.
Following the close of the State's case, Juarbe made a motionfor a directed finding, which the court denied. Soto rested hiscase, and following closing arguments, the court found Soto guiltyof possession of a controlled substance with intent to deliver.
Jack Dugan, a private investigator, was called to testify onJuarbe's behalf. Dugan testified that he took pictures of theintersection at Mannheim Road and Harrison where Keag testifiedthat Juarbe ran the red light. Dugan testified that he drovethrough the intersection several times and was also stopped at thered light while traveling eastbound on Harrison. In Dugan's opinion, the sixth vehicle in line at the stop light could not seethe first vehicle in line.
In rebuttal, Mark Borkevic, a Westchester police officer,testified that on July 1, 1998, at approximately 12:25 p.m., he waspresent when the intersection of Mannheim Road and Harrison was videotaped. Borkevic testified that he was at the intersection ofMannheim Road and Harrison for approximately 10 minutes andobserved several vehicles stopped at the light. Borkevic testifiedthat the videotape truly and accurately depicted the flow oftraffic he observed on that day. In Borkevic's opinion, it waspossible to see the first vehicle stopped at the intersection evenfive or six vehicles behind it. Borkevic admitted that the abilityto see the first vehicle depended upon the types and sizes ofvehicles behind the first vehicle.
Following closing arguments, the court found Juarbe guilty ofpossession of a controlled substance with intent to deliver. Juarbe and Soto were sentenced to 22 years' and 18 years'imprisonment, respectively. Defendants' timely appeal followed.
Defendants first contend that the trial court erred in denyingtheir motion to quash arrest and suppress evidence. In general,when considering a trial court's ruling on a motion to suppress, areviewing court will accord great deference to the trial court'sfactual findings and will reverse those findings only if they areagainst the manifest weight of the evidence. In re G.O., 191 Ill.2d 37, 50, 727 N.E.2d 1003 (2000). Here, the only facts in disputewere whether Juarbe ran the red light and how long the parties hadto wait for the dog to arrive. As we accept the trial judge'sfactual findings, we review the denial of defendant's motion toquash the arrest and suppress evidence de novo. People v. Wardlow,183 Ill. 2d 306, 311, 701 N.E.2d 484 (1998), cert. granted, 526U.S. 1097, 143 L. Ed. 2d 669, 119 S. Ct. 1573 (1999).
In a motion to suppress, the burden is on the defendant toestablish that the search or seizure was unreasonable or unlawful. People v. Scott, 249 Ill. App. 3d 597, 600, 619 N.E.2d 809 (1993). The defendant must establish a prima facie case that the policeacted without a warrant and that the defendant was doing nothing tojustify the intrusion by the police at the time of the stop orarrest. People v. Ertl, 292 Ill. App. 3d 863, 868, 686 N.E.2d 738(1997). Once the defendant has made a prima facie showing, theburden of going forward with evidence to justify the stop or arrestshifts to the State. People v. Drake, 288 Ill. App. 3d 963, 967,683 N.E.2d 1215 (1997).
An exception to the warrant requirement is the Terry stop,which is invoked here. Under Terry v. Ohio, 392 U.S. 1, 21-22, 2L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880 (1968), the fourthamendment to the United States Constitution permits an officer tomake a valid investigatory stop of a person without probable causeto arrest when there is a reasonable suspicion of criminalactivity. People v. Branch, 295 Ill. App. 3d 110, 112, 692 N.E.2d398 (1998). "For the police to justify such a detention, they mustpoint to specific, articulable facts which, when taken togetherwith natural inferences, make the intrusion reasonable - such aswhen the officer observes unusual conduct which leads himreasonably to conclude in the light of his experience that criminalactivity may be afoot." Ertl, 292 Ill. App. 3d at 868-69.
A threshold question is whether Soto had standing to challengethe search. Generally, a passenger lacks standing to challenge thesearch of another's vehicle unless the passenger has a legitimateexpectation of privacy in the place searched. Rakas v. Illinois,439 U.S. 128, 135, 58 L. Ed. 2d 387, 395, 99 S. Ct. 421, 426,(1978); United States v. Duprey, 895 F.2d 303, 309 (7th Cir. 1989);People v. Manikowski, 186 Ill. App. 3d 1007, 1010, 542 N.E.2d 1148(1989).
A defendant who objects to the search of a particular areamust prove a legitimate expectation of privacy in the areasearched. Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d633, 641, 100 S. Ct. 2556, 2561 (1980). This inquiry involves twoquestions: (1) whether the individual, by his conduct, hasexhibited a subjective expectation of privacy; and (2) whether suchan expectation is justifiable under the circumstances. Smith v.Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 226-27, 99 S. Ct.2577, 2580 (1979). The following factors have been recognized asrelevant in answering these questions: (1) whether the defendanthas a possessory interest in the place searched; (2) whether he hasa right to exclude others therefrom; (3) whether he has exhibiteda subjective expectation that the place remains free fromgovernmental invasion; (4) whether normal precautions were taken toprotect his privacy; and (5) whether he was legitimately on thepremises. United States v. Peters, 791 F.2d 1270, 1280 (7th Cir.1986), quoting United States v. Haydel, 649 F.2d 1152, 1155 (5thCir. 1981).
Applying these factors to our facts reveals that: (1) Soto hadno possessory interest in the vehicle; (2) there was no evidencethat he had a right to exclude others from the vehicle; (3) he waspresent when Juarbe gave permission to search the car and he didnot object even though he was legitimately in the car; and (4)there was no evidence as to any precautions he took. Therefore,Soto had no reasonable expectation of privacy in the vehicle. Consequently, Soto lacks standing to challenge the search.
Nevertheless, Soto argues that he had standing to challengethe search because the totality of police conduct amounted to anunlawful seizure of his person under the fourth amendment of theUnited States Constitution, relying on People v. Kunath, 99 Ill.App. 3d 201, 205, 425 N.E.2d 486 (1981). In Kunath, this courtopined, "Rakas did not deal with the question of standing tocontest an unconstitutional stop." (Emphasis in original.) Kunath, 99 Ill. App. 3d at 204. The State conceded in Kunath thatthe police acted without probable cause to stop the car in whichKunath was a passenger. As the stop was improper, it constituteda violation of Kunath's constitutional right to be free from any unreasonable seizure of his person and the evidence seized wasproperly suppressed by the trial court. Kunath, 99 Ill. App. 3d at206.
We find Kunath to be factually inapposite. Here, as inManikowski, the vehicle in which Soto was a passenger was stoppedfor a traffic offense. As running a red light was a reasonablebasis for Sergeant Keag to stop and detain defendants, Soto doesnot have standing to contest the search. People v. Flowers, 111Ill. App. 3d 348, 354, 444 N.E.2d 242 (1982); Manikowski, 186 Ill.App. 3d at 1010-11.
Juarbe, as owner and driver of the vehicle, does have standingand we now turn to the lawfulness of the stop and search of thevehicle as it relates to his conviction. Defendants argue that thepolice did not have sufficient grounds to justify the stop ofJuarbe's vehicle because the pretextual nature of the stop placedSergeant Keag's credibility at issue where he testified thatdefendant Juarbe committed a traffic violation by running a redlight.
It is well settled that the fourth amendment does not prohibitpretextual traffic stops. In Whren v. United States, 517 U.S. 806,135 L. Ed.2d 89, 116 S. Ct. 1769 (1996), the United States SupremeCourt held that ulterior motives do not invalidate police conductthat is justifiable on the basis of probable cause to believe thata violation of the law has occurred. Whren, 517 U.S. at 813, 135L. Ed.2d at 98, 116 S. Ct. at 1774. The constitutionalreasonableness of a traffic stop does not depend on the actualmotivations of the officers involved. Whren, 517 U.S. at 813, 135L. Ed.2d at 98, 116 S. Ct. at 1774; People v. Thompson, 283 Ill.App. 3d 796, 798, 670 N.E.2d 1129 (1996). In Thompson, the policereceived an anonymous tip that a van containing alcohol and gunswas traveling from Carterville to Carbondale. The police did notimmediately stop the van but waited for the driver to commit atraffic violation. Upon seeing that the van had a defective brakelight, the police stopped the van. The police used the faultybrake light as a pretext to see if the defendants were illegallytransporting alcohol and guns. Citing Whren, the court in Thompsonheld, "Even though the traffic offense masked other reasons for thestop unsupported by probable cause, ulterior motives cannot makeotherwise lawful conduct illegal. The pretextual nature of thestop did not invalidate it. The police had probable cause for thestop. The inquiry ends there." Thompson, 283 Ill. App. 3d at 798-99.
Here, defendants assert that Juarbe's testimony that he didnot run a red light and that Sergeant Keag did not inform him ofthe traffic violation he allegedly committed upon stopping himshows a lack of probable cause. We find defendants' argumentunpersuasive. Here, the trial court found Sergeant Keag'stestimony regarding the traffic violation to be credible. SergeantKeag's testimony concerning defendant's position on the highwaywhen he ran the red light, coupled with the testimony of OfficerBorkevic that it was possible to see the first vehicle stopped atthe light even if Keag was five or six cars behind defendants', wasgrounds for the trial court to believe that defendant Juarbe didindeed commit the traffic violation. The trial court is in thebest position to determine the credibility of the witnesses on amotion to quash arrest and suppress evidence and to resolveconflicts in testimony because it has heard the testimony andobserved the demeanor of the witnesses. People v. Evans, 296 Ill.App. 3d 1, 9, 689 N.E.2d 142 (1997), citing People v. Carter, 288Ill. App. 3d 658, 662, 681 N.E.2d 41 (1997). It is the trialjudge's function in making a probable cause determination to weighthe testimony, assess the credibility of the witnesses, and drawreasonable inferences from the testimony. People v. Zinnamon, 266Ill. App. 3d 671, 676, 639 N.E.2d 1296 (1993). We will not disturbthe trial court's determination here.
Defendants next contend that, even if the stop was justified,the conduct of the officers was not reasonably related to thecircumstances justifying the stop. Defendants first argue that itwas improper for Keag to ask Juarbe if there were any drugs orweapons in the vehicle.
Under Terry, the Supreme Court set forth a dual inquiry fordeciding whether an officer's investigative detention isreasonable: (1) "whether the officer's action was justified at itsinception" and (2) "whether it was reasonably related in scope tothe circumstances which justified the interference in the firstplace." Terry, 392 U.S. at 19-20, L. Ed.2d at 905, 88 S. Ct. at1879. Stopping an automobile for a minor traffic violation doesnot, by itself, justify a search of the vehicle unless the officerreasonably believes he is confronting a situation more serious thana routine traffic violation. People v. Penny, 188 Ill. App. 3d499, 502, 544 N.E.2d 1015 (1989).
In the instant case, we hold that Keag reasonably believedthat he was confronted with a situation in which defendants werecommitting a more serious crime than a routine traffic violation. Keag's belief was based on his knowledge of the Zepeda organizationafter conducting surveillance of the "stash house" at 22 AceraDrive over 100 times. In addition, Keag observed defendant Juarbeclutching a white paper bag while exiting the apartment with Soto. This information was supplemented by knowledge that a signedfederal search warrant authorizing a search for narcotics had beenissued for this apartment. Therefore, based on this information,it was reasonable for Keag to ask defendant Juarbe if there wereany drugs or weapons in the vehicle.
As to the reasonableness of the actions of the police, it isuncontested that Juarbe gave his consent to the search of hisvehicle. Juarbe did not testify that he felt he was under arrestprior to the narcotics being found. The initial stop was made bya single officer in plain clothes. Neither defendant was told toput his hands on the car. The police even allowed Soto to enterthe car and drive it from the scene of the stop. As there was nounlawful arrest or seizure of either defendant, the cocaine that was recovered was not the "fruit" of an illegal arrest andtherefore should not be suppressed. Manikowski, 186 Ill. App. 3dat 1011.
Defendants also argue that even if the detention wasjustified, it was unconstitutionally prolonged. Defendants assertthat they were detained for approximately one hour awaiting thearrival of a detector dog. We disagree. Defendants rely on caseswhich state that a detention must end once the purpose of the stophas been accomplished. See, e.g., People v. Koutsakis, 272 Ill.App. 3d 159, 163, 649 N.E.2d 605 (1995). However, here, Keag hadalready been given consent to search and had done so, but based onhis knowledge of the Zepeda organization, he expanded the search toinclude a detector dog. Although defendants argue that thisinformation was insufficient to expand the search, we hold thatthis is not the case. Keag had extensive information thatconnected defendants to the Zepeda organization. After Keag didnot see the bag that Juarbe carried out of the apartment inside thecar, his decision to request a narcotics detecting dog to furtherthe search did not change the nature of the search. Furthermore,the record reveals that Keag testified that he called for adetector dog at approximately 12:47 p.m. and was informed thatthere were no dogs available. Once the Illinois State Police werecontacted, Keag testified that a dog arrived at approximately 1p.m. We hold that this amount of time was not unreasonable to waitfor the detector dog to arrive. As the trial court was in the bestposition to weigh the credibility of the witness, we will notdisturb the trial court's finding.
Defendants next contend that the police lacked probable causeto arrest Soto for possession of controlled substances. Defendantsassert that there was no evidence presented that Soto had anydegree of dominion or control over the vehicle or the contraband orthat he had knowledge that it was in the vehicle.
Although probable cause requires more than mere suspicion, itdoes not require the arresting officers to have in their handssufficient evidence to convict the defendant. People v. Moody, 94Ill. 2d 1, 445 N.E.2d 275 (1983). The expertise and experience ofthe officer are to be taken into account as well. People v.Stamps, 108 Ill. App. 3d 280, 438 N.E.2d 1282 (1982). To establishthat a possessory offense had taken place, the State would have hadto present evidence tending to show that defendant knew of thepresence of the contraband and that it was in his immediate andexclusive possession. People v. Denton, 264 Ill. App. 3d 793, 798,637 N.E.2d 1066 (1994); People v. Mason, 213 Ill. App. 3d 163, 167,571 N.E.2d 1127 (1991). Where two or more people share immediateand exclusive control or share the intention and power to exercisecontrol, there arises a situation of joint possession. Denton, 264Ill. App. 3d at 798. Even where there is no physical possession,constructive possession may exist where there is an intent andcapacity to maintain control and dominion over the contraband, andthis may be proved by showing that the defendant controlled thepremises where it was found. Mason, 213 Ill. App. 3d at 167.
In the present case, we hold that the State made a sufficientshowing that defendant Soto knew of the contraband and that heexercised a degree of control over it. The contraband was in ahidden compartment in the armrests of the vehicle owned bydefendant Juarbe, which were immediately accessible to Soto, whowas in the vehicle from the time they left the apartment togetheruntil the arrest. The trial judge personally observed the hiddencompartments open and close and noted for the record that they madea distinct grinding noise as they opened and closed. Thus, itwould be reasonable to conclude that Soto was aware of thenarcotics in the vehicle. Under these circumstances, we hold thatthe police officers possessed sufficient probable cause to arrestSoto for possession of a controlled substance and his motion toquash arrest and suppress evidence was properly denied.
Defendants further contend that the State failed to prove Sotoguilty beyond a reasonable doubt. In reviewing the sufficiency ofthe evidence, a reviewing court must determine "whether, afterviewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt." Peoplev. Campbell, 146 Ill. 2d 363, 374, 586 N.E.2d 1261 (1992). Whetherthe requisite elements have been proven is a question for the trierof fact, and its findings will not be disturbed on review unlessthe evidence is contrary to the verdict or so unreasonable,improbable, or unsatisfactory as to create a reasonable doubt ofguilt. People v. Turner, 282 Ill. App. 3d 770, 777, 668 N.E.2d1058 (1996). A reviewing court may not substitute its judgment forthat of the trier of fact on questions involving the weight of theevidence or the credibility of witnesses. People v. Cooper, 283Ill. App. 3d 86, 92, 669 N.E.2d 637 (1996).
Defendants argue that none of the additional facts typicallyrelied upon by the courts in finding joint possession is present inthis case. We disagree. Contrary to defendants' assertion, therewas sufficient evidence tying Soto to the narcotics. Soto andJuarbe left the apartment at 22 Acera Drive together. Thisapartment was a known "stash house." The State presented evidencethat Soto's fingerprints were found on the lease to the apartmentand on the inside of a Ziploc bag containing cocaine. Additionally, there was no evidence presented that Soto got out ofthe vehicle prior to the stop by Officer Keag. We also point outthat the trial judge personally observed the hidden compartmentsopen and close and noted for the record that they made a distinctgrinding noise as they opened and closed. Therefore, it wasrational for a trier of fact to conclude that Soto was in thevehicle and was well aware of when the narcotics were placed in thehidden area. This evidence is sufficient to sustain Soto'sconviction.
Defendants finally contend that the trial court erred inadmitting other crimes evidence. As with all other evidence,evidence of other crimes must be relevant. People v. Robinson, 167Ill. 2d 53, 62, 656 N.E.2d 1090 (1995). Evidence of other crimesis admissible to demonstrate anything other than a propensity tocommit crime, including:
"[a]mong other things, modus operandi, motive, knowledge,intent, absence of mistake or accident, defendant's stateof mind, absence of an innocent mind frame or thepresence of criminal intent, circumstances or context ofdefendant's arrest, placement of defendant in proximityto the time and place of the crime, identification of theweapon used in a crime, consciousness of guilt, to showa common design, scheme or plan, circumstances of a crimecharged that would otherwise be unclear, whether a crimecharged was actually committed, opportunity orpreparation, a defendant's dislike or attitude toward thevictim, to explain an otherwise implausible fact relatingto the crime charged, to contradict on rebuttal adefendant's denials, to disprove a defense of entrapmentand to disprove an alibi defense." People v. Millighan,265 Ill. App. 3d 967, 972-73, 638 N.E.2d 1150 (1994).
Here, the use of other crimes evidence was relevant to showknowledge and intent. The record reveals that Juarbe was seen atthe apartment at 22 Acera Drive as were both defendants' vehicles, on several occasions prior to their arrest on March 13, 1997. Keag's surveillance of the apartment established that personsarrived and left the apartment frequently and usually stayed nolonger than five minutes. This conduct is indicative of theexistence of drug activity. Furthermore, defendants' fingerprintswere found on duct tape, baggies and other items in the apartment. This evidence was relevant to establish whether defendants hadknowledge of the activity in the apartment, and coupled with theevidence found in Juarbe's car, assists in establishing whetherdefendants possessed controlled substances with an intent todeliver. In a bench trial, it is presumed that the trial judgeconsidered only competent evidence in reaching his decision. People v. Lester, 102 Ill. App. 3d 761, 768, 430 N.E.2d 358 (1981). As the evidence presented in the present case clearly proveddefendants' possession of controlled substances with an intent todeliver beyond a reasonable doubt, we will not disturb the trialcourt's determination upon review.
Based on the foregoing reasons, the judgment of the circuitcourt of Cook County is affirmed.
Affirmed.
HARTMAN and GREIMAN, JJ., concur.