People v. Spencer

SUPREME COURT CASES

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People v. Spencer

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-0973 NRel

Case Date: 03/24/2011

Preview:FOURTH DIVISION Filed: 3-24-11

No. 1-08-0973 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL SPENCER, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County No. 06 CR 3036

Honorable John J. Scotillo, Judge Presiding.

PRESIDING JUSTICE GALLAGHER delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion. OPINION Following a jury trial, defendant Michael Spencer was found guilty of possession of a controlled substance with intent to deliver and sentenced to 15 years' imprisonment. On appeal, defendant contends that the search of his car violated his fourth amendment right to be free from unreasonable searches and seizures and that the trial court failed to question prospective jurors in compliance with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)). We reverse. BACKGROUND Prior to trial, defendant filed a motion to quash his arrest and suppress illegally obtained evidence. At the hearing on defendant's motion, Rolling Meadows police detective Joe Pistorius testified that he and Investigator Mark Hinds went to defendant's residence on January 4, 2006, to place him under arrest for pandering in connection with an investigation he had conducted

regarding a missing person. About 9 p.m. that evening, Detective Pistorius observed a tan BMW exit from defendant's garage, and the officers followed that vehicle for two minutes as Detective Pistorius determined that the vehicle was registered to defendant and that the driver looked like defendant. Detective Pistorius activated his vehicle's emergency lights, and defendant exited the roadway and pulled into a "private property parking lot." The officers exited their vehicle, and Detective Pistorius informed defendant, who had already exited his vehicle, that he was under arrest for pandering. A marked squad car arrived about five minutes later, and defendant was subjected to a pat down search, which revealed that he was in possession of $8,000, and he was then transported to the police station by Officer Ryan McMahon. After defendant had been removed from the scene, Detective Pistorius, Investigator Hinds, and Investigator Cook conducted a custodial inventory search of defendant's vehicle. During the search, the officers discovered a metal lock box in the trunk of the car, and Detective Pistorius opened it with a key from defendant's key chain. The lock box contained several bundles of $100 bills and a clear, plastic bag holding a white, powdery substance that was later determined to be cocaine. Detective Pistorius explained that he had been trained to consider whether an inventory search was necessary to log the owner's personal property, to make sure that there are no claims against the police department regarding stolen property, and to make sure that there are not any dangerous or hazardous materials in the vehicle when deciding whether to conduct such a search and that he believed all three elements were present in this case. Detective Pistorius explained that at the time the search was conducted, defendant's car was not impeding traffic and defendant had not been given the opportunity to have someone take his vehicle home. -2-

1-08-0973 On cross-examination, Detective Pistorius stated that defendant had pulled into the parking lot at Fremd High School, which was private property, and that police procedure required that the vehicle be towed. He also stated that it was the policy of the Rolling Meadows police department (RMPD) to tow a vehicle when the lone occupant had been arrested or taken from the scene and to conduct a custodial inventory of the vehicle before it was towed. The inventory was to include the inspection of closed containers that might contain valuable items, which would then be placed into storage. Valuables were defined as any loose items that could be easily removed from the vehicle and posed a high risk of loss through damage or theft. Since defendant had been found to have been in possession of $8,000, Detective Pistorius wanted to verify whether there were other items of value in his vehicle and opened the lock box that had been recovered from the trunk and inventoried the items found therein. Detective Pistorius further stated that the RMPD field training manual directed that an officer was to list inventoried property and note the condition of the vehicle on a tow slip and to place any valuable items in storage with a receipt. The manual also provided that closed containers were to be inspected in an attempt to save perishable items and to notify the proper authorities of dangerous materials. Detective Pistorius prepared a tow slip for defendant's vehicle, which indicated that tools, a speaker box, gloves, a scarf, and an inflatable mattress had been recovered from his car and listed other items, including a cell phone, a computer, and a lock box containing money and cocaine, on a separate sheet because they had been inventoried separately. On redirect examination, Detective Pistorius testified that defendant's car was towed

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1-08-0973 because he had been arrested and that anytime an individual was arrested, that person's vehicle was to be towed. The trial court then asked Detective Pistorius what the police department's policy was regarding when to tow a vehicle, and he responded that "[a]fter an individual has been arrested we tow the vehicle to an impound." Detective Pistorius subsequently stated on re-crossexamination that the towing procedure differed depending on the crime for which the individual had been arrested and on whether there was another person in the vehicle at the time of arrest. He explained that if another occupant of the vehicle at the time of the arrest is determined to have a valid driver's license and the vehicle is not part of a crime scene or a stolen vehicle, then the car is to be turned over to that person, and it will not be towed. The tow-in report Detective Pistorius prepared of defendant's vehicle and a portion of the RMPD procedural manual pertaining to the towing of vehicles were subsequently entered into evidence. Following argument, the trial court denied defendant's motion, finding that the search of his vehicle was a proper inventory search conducted pursuant to RMPD procedures. In doing so, the court stated that it was necessary to tow defendant's vehicle because he was alone when he was arrested, his car was parked in a high school parking lot, and he was being transported away from the vehicle. The court also stated that Detective Pistorius was required by department procedures to conduct an inventory search of defendant's vehicle to safeguard his property and that Detective Pistorius's decision to open the lock box to search for valuables made sense. Defendant subsequently elected to proceed pro se and filed a motion to suppress illegally obtained evidence and a motion to reconsider the denial of his previous motion to quash his arrest and suppress illegally obtained evidence. In those motions, defendant alleged that the police

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1-08-0973 illegally seized and searched his lawfully parked vehicle without a warrant and asserted that the impoundment of his car was not lawful because it was not conducted in accordance with the procedures set forth in the police department procedural manual. Detective Pistorius testified at the hearing on defendant's pro se motions, and his testimony regarding the events leading up to, including, and following defendant's arrest was consistent with the testimony he had provided at the first hearing. Detective Pistorius also testified that defendant's car was towed to Pellow's Auto/Body when it was impounded, that he did not recall seeing any signs posted at the entrance of the high school parking lot which indicated that parking was forbidden or that unauthorized vehicles would be towed, and that he was not instructed to tow defendant's car by an employee of the high school. Detective Pistorius believed that the parking lot was private property because it was owned by School District 211 and that RMPD policy directed that the vehicle of an arrested person shall be towed subsequent to the arrest when it is located on private property, subject to a couple of exceptions that did not apply in this case. He acknowledged, however, that the written RMPD procedural manual did not specifically state that the police shall tow the vehicle of an arrested person from private property. Detective Pistorius further testified that defendant's vehicle was illegally parked at the time of his arrest. The entire portion of the RMPD procedural manual regarding towing and impounding vehicles was then entered into evidence and the parties delivered their closing arguments, after which the trial court denied defendant's motions. In doing so, the court stated that Detective Pistorius's search of defendant's car was a legal search incident to arrest and that he properly

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1-08-0973 towed defendant's vehicle and conducted an inventory search of it pursuant to police procedures. The court appointed counsel for defendant upon his request, and the case proceeded to a jury trial on the charge of possession of a controlled substance with intent to deliver. Following trial, defendant was found guilty of that crime and sentenced to 15 years' imprisonment. ANALYSIS I. Jurisdiction The State initially asserts that this court lacks jurisdiction to review defendant's appeal because his notice of appeal was untimely. A defendant must file his notice of appeal within 30 days of the entry of the final judgment from which he is appealing or, if a motion directed against the judgment is timely filed, within 30 days of the entry of the order disposing of that motion. Ill. S. Ct. R. 606(b) (eff. Sept. 1, 2006). Upon sentencing a defendant, the trial court is required to advise him that he has 30 days from the date of sentencing to file a written motion asking the court to reconsider the sentence imposed. Ill. S. Ct. R. 605(a)(3)(B) (eff. Oct. 1, 2001). The State maintains that defendant was sentenced and properly admonished of his right to file a motion to reconsider his sentence on January 25, 2008, and that his motion to reconsider was untimely because it was filed on March 31, 2008, 67 days after he was sentenced. The State reasons that since defendant did not file a timely motion to reconsider his sentence, he was then required to file his notice of appeal within 30 days of sentencing, and that his notice of appeal was therefore untimely because it was filed on April 10, 2008, well more than 30 days after he was sentenced. Defendant replies that his motion to reconsider his sentence was timely filed on February 19, 2008, and that his notice of appeal was also timely filed because it was filed on the

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1-08-0973 same day he withdrew his motion to reconsider. The common law record shows that defendant was sentenced on January 25, 2008, and that he subsequently filed two motions to reconsider his sentence. The first motion to reconsider does not have a filing date stamped on it and is accompanied by a notice of the motion, which includes a proof of service, signed by Kathy Pepper, a nonattorney, certifying that a copy of the motion "was presented to the Clerk of the Circuit Court and State's Attorney's Office" in Rolling Meadows on February 19, 2008. It appears that a filing date had been stamped on the notice of the motion, and a close inspection of the copy of the document in the common law record reveals a faint remnant of a stamped date of February 19, 2008. The second motion to reconsider does not have a filing date stamped on it either, and is accompanied by a notice of the motion that has a stamp indicating that it was filed on March 31, 2008, and a signed proof of service by Pepper, certifying that the motion was presented on that date. In his reply brief, defendant, citing an affidavit signed by Anna Gregoline that is attached to the appendix of his reply brief, asserts that the clerk of the circuit court maintained that the original copy of the first notice of the motion to reconsider showed a file-stamp of February 19, 2008, and affixed a new, clearly legible stamp on a copy of the notice of the motion that was then included in a supplement to the common law record that reflects it was filed on February 19, 2008. Although we cannot consider the affidavit signed by Gregoline because it was merely attached to the appendix of defendant's reply brief, and not included in the record (Jones v. Police Board, 297 Ill. App. 3d 922, 930 (1998)), the copy of the notice of the motion to reconsider defendant's sentence included in the common law record, which contains a faint, but legible, file-

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1-08-0973 stamp of February 19, 2008, and a signed proof of service certifying that it was filed on that date, is sufficient to convince this court that defendant's motion to reconsider was timely filed on February 19, 2008. The record shows that defendant's motion to reconsider his sentence was not ruled upon prior to April 10, 2008, when he withdrew that motion and filed his notice of appeal, and we thus conclude that his notice of appeal was timely filed (Ill. S. Ct. R. 606(b) (eff. Sept. 1, 2006)) and that we therefore have jurisdiction to review his appeal. II. Motions to Suppress Defendant contends that the trial court erred by denying his motions to suppress illegally obtained evidence because the warrantless search of his vehicle was not a valid search incident to arrest or a valid inventory search. The defendant bears the burden of proof at a hearing on a motion to suppress, but if the defendant is able to make a prima facie case that the evidence at issue was obtained by an illegal search or seizure, which may be done by showing that the search was conducted without a warrant, the State will then have the burden of going forward with evidence to counter the defendant's claim. People v. Gipson, 203 Ill. 2d 298, 306-07 (2003). When reviewing a trial court's ruling on a motion to suppress, we accept the court's findings of fact unless they are against the manifest weight of the evidence, but review its ultimate ruling as to whether suppression is warranted de novo. People v. Harris, 228 Ill. 2d 222, 230 (2008). The United States and Illinois Constitutions guarantee citizens the right to be free from unreasonable searches and seizures. U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I,

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