People v. Davenport

SUPREME COURT CASES

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People v. Davenport

State: Illinois

Court: 3rd District Appellate

Docket No: 3-05-0812 Rel

Case Date: 05/29/2009

Preview:No. 3--05--0812 _________________________________________________________________ Filed May 29, 2009 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2009 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, ) Henry County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 05--CF--173 ) ANGELIA K. DAVENPORT, ) Honorable ) Larry S. Vandersnick, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________ JUSTICE CARTER delivered the opinion of the court: _________________________________________________________________ The defendant, Angelia K. Davenport, was charged with cannabis trafficking, unlawful possession of cannabis with intent to deliver, and unlawful possession of cannabis (720 ILCS 550/5.1(a), 5(g), 4(g) (West 2004)). She filed a pretrial motion Following After

to suppress evidence, which the circuit court denied.

a jury trial, the defendant was found guilty as charged.

merging the lesser offenses with the Class X trafficking charge, the court sentenced the defendant to 12 years of imprisonment and imposed fines, costs, and fees. The defendant appealed, arguing

that: (1) the court erroneously denied her motion to suppress; (2) the prosecutor impermissibly impeached her with her postarrest silence; (3) she is entitled to monetary credit for

the time she spent in presentence incarceration; and (4) a $20 fee imposed for collection of a genetic marker specimen must be vacated. On direct appeal, this court affirmed the defendant's

conviction, modified her sentence in part, and vacated the $20 collection fee. People v. Davenport, No. 3--05--0812 (2007)

(unpublished order under Supreme Court Rule 23). In a supervisory order dated November 26, 2008, the supreme court directed us to vacate judgment and reconsider our decision in light of People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008). After reconsideration, we reverse and remand. FACTS At the suppression hearing, the State presented the testimony of Illinois State Trooper Clint Thulen and a video recording of his May 5, 2005, stop of a white Honda sports utility vehicle and his arrest of its occupants. The evidence

established that at 11:15 a.m., Thulen, who drove an unmarked canine vehicle, pulled the Honda over. The Honda was bearing

Colorado plates, and it was traveling eastbound along Interstate 80 near milepost 19 in Henry County. The Honda slowed Thulen said he

considerably when it passed Thulen's vehicle.

clocked the Honda at 70 miles per hour in a 65-mile-per-hour zone. Thulen approached the vehicle on the passenger side. The

defendant, who was seated in the front passenger seat, opened the 2

door and handed Thulen her mother's driver's license.

She told

Thulen that the vehicle belonged to her husband, and indicated to Thulen that she was an owner of the vehicle. The defendant's A third

mother, Catherine Cagle, was the vehicle's driver.

individual, who was later identified as Jose Manuel Vasquez Rodriguez, occupied the rear passenger seat. Thulen told the

travelers that he was going to write a warning ticket for speeding. He testified that all three seemed unusually nervous.

Rodriguez moved his hands under a coat on his lap, and Thulen considered this a "furtive" movement. He ordered Rodriguez to After determining that

show his hands and asked to see the coat.

there were no weapons in the coat, Thulen returned it and escorted Cagle to his vehicle to write the warning ticket. Thulen initiated a license check and engaged Cagle in conversation. Cagle told Thulen that she was going to Michigan While Thulen was writing the ticket, a message

to visit family.

was radioed informing him that Cagle had prior arrests for various offenses, including possession of controlled substances. Thulen said Cagle reacted by turning away from him and staring out the passenger window. He said her level of nervousness

heightened, her lip trembled, and she appeared worried. Thulen then asked if there was anything illegal in the car. Cagle responded, "Not that I know of." This response concerned He called for

Thulen, because he considered it untruthful. 3

backup and asked Cagle if he could search the vehicle.

Cagle

said it was not her vehicle and she could not consent to a search. Thulen asked if he could conduct a canine sniff of the

vehicle, and Cagle again responded that she could not consent because she did not own the vehicle. Thulen asked Cagle if she

would have a problem with his searching the vehicle if it was okay with the defendant. matter. Again, Cagle said she had no say in the

Thulen finished writing the warning ticket and told However, he then asked if she would Cagle

Cagle she was free to go.

remain in his vehicle while he spoke to the defendant. agreed to do so.

In his training as a peace officer, Thulen had learned that Colorado was a hub for the distribution of illegal drugs, and substantial amounts of cocaine and marijuana were being transported throughout the country from Denver and Colorado Springs. He also knew that Interstate 80 was a main corridor for Based on this knowledge,

the transportation of illegal drugs.

together with his observations during the stop and the information he had received regarding Cagle's prior arrests, he suspected that the vehicle contained contraband. Thulen told the defendant to put her shoes on and exit the vehicle. Thulen then asked the defendant if he could conduct a He explained that he had observed The defendant denied

canine sniff of the vehicle.

some indicators of criminal activity. 4

consent for both a canine sniff and a search.

Thulen asked

Rodriguez to exit the vehicle and told them they were free to leave. He said he was going to detain the vehicle, however, for Cagle joined the defendant and Rodriguez on the

a canine sniff.

side of the road, and Thulen explained that they could walk away, hop the fence, or he could help them secure a ride. The three travelers began walking along the shoulder of the highway and stopped a short distance from the vehicle. led his drug detection dog to the Honda. Thulen

After the dog took an

interest in the rear of the vehicle, Thulen led the dog around to the driver's side of the vehicle. The dog leaped through an open

window on the driver's side of the vehicle, and alerted at luggage in the cargo area. Thulen returned the dog to his He located a

vehicle and conducted a manual search of the Honda.

duffle bag full of cellophane-wrapped bundles of suspected cannabis in the cargo area. Thulen immediately ordered the three

travelers to halt, as they had resumed their slow walk from the vehicle, and placed them under arrest. Sergeant Floyd Blanks

arrived in response to Thulen's request for backup assistance. After securing the travelers, the officers found another container of suspected cannabis in the back of the Honda under a bag of toiletries and a pair of women's jeans. Thulen said he had a sinus infection on the date of the arrest, and he was unable to detect the odor of the cannabis 5

until he opened the rear door to the cargo area of the Honda in response to the dog's alert. Cagle and the defendant testified in support of the motion to suppress. Cagle said she had had mouth surgery in January

2005, and she still had trouble speaking with her new dentures. She denied that she was acting nervous or upset during the stop or upon hearing her criminal history when it was broadcast on Thulen's radio. She also testified that the defendant did not

appear nervous or upset during the stop. The defendant testified that her husband owned the vehicle, but she used it as if it were her vehicle. She stated that they She said

were not speeding when they passed Thulen's vehicle. her mother never speeds.

She disagreed with Thulen at the scene

and told him they were traveling at 60 miles per hour before they were stopped. She corroborated Cagle's testimony that neither of The defendant said she did She explained that

them were nervous during the stop. not know Rodriguez before the trip. Rodriguez' uncle was a friend.

He had asked her to drop

Rodriguez off in Chicago, where he had a job lined up. Finally, Blanks testified that he noted the smell of cannabis emanating from the Honda when he approached the rear of the vehicle. Following arguments of counsel, the circuit court denied the defendant's motion to suppress. The court found that the initial 6

stop was valid because the Honda was speeding, and the totality of the circumstances observed by Thulen during the stop gave rise to less than probable cause, but more than a hunch that criminal activity was afoot. The court found that Thulen had a reasonable

suspicion of criminal activity that authorized his investigation into possible drug trafficking. Accordingly, the court ruled

that the defendant was not illegally detained during the search of the vehicle. At trial, the defendant stipulated that forensic testing proved that 6,714 grams of plant material removed from five of the packages in the Honda was cannabis, and an additional 11 packages contained 15,145 grams of plant material. It was also

established that the Honda was owned by the defendant's husband, Jose Fuentes. In addition to Thulen and Blanks, whose testimony

was generally consistent with the testimony presented at the suppression hearing, the State called Rodriguez as a witness. Rodriguez gave his name and then invoked his fifth amendment right against self-incrimination. The defendant testified that, prior to her arrest, she had no knowledge that there was cannabis in the vehicle. She said

Cagle was chain-smoking cigarettes during the trip, and the smoke bothered her. She said she followed Rodriguez as they walked

along the shoulder of the highway after Thulen told them they were free to leave. She asked Rodriguez what was going on, but 7

he did not respond to her question.

She said she suspected from The defendant

his demeanor that he knew something was wrong.

testified that she turned back to talk to Thulen, but he exited the Honda and ordered them to get down on the ground before she could do so. On cross-examination, the prosecutor asked the defendant why she had not told the police after her arrest that she had tried to find out what Rodriguez knew. The defendant said she was

arrested and did not know what was going on. Following deliberations, the jury found the defendant guilty of the offenses charged. She was subsequently sentenced to 12

years of imprisonment and given 139 days of credit for time spent in presentence incarceration. The court also ordered the

defendant to pay fines and fees, including a $3,000 drug assessment, a "street-value" fine of $190,680, a $200 lab analysis fee and $20 for the cost of collecting a genetic marker specimen. ANALYSIS First, the defendant argues that the circuit court erred when it denied her motion to suppress evidence. The defendant

argues that she was illegally seized, and the illegal seizure tainted the search that resulted in the discovery of the contraband in the cargo area of the vehicle. Courts of review apply a two-part standard of review when 8

faced with a challenge to a circuit court's ruling on a motion to suppress. (2006). People v. Luedemann, 222 Ill. 2d 530, 857 N.E.2d 187 First, the circuit court's findings of historical fact

are reviewed for clear error, and deference is afforded to any inferences the circuit court drew from those facts. 222 Ill. 2d 530, 857 N.E.2d 187. Luedemann,

We will not disturb the circuit

court's factual findings unless they are against the manifest weight of the evidence. 187. Luedemann, 222 Ill. 2d 530, 857 N.E.2d

Second, because the reviewing court is free to assess the

facts relative to the issue presented in the case, we review the circuit court's ultimate legal ruling on the motion to suppress under the de novo standard. N.E.2d 187. The fourth amendment of the United States Constitution and article I, section 6, of the Illinois Constitution protect citizens from unreasonable searches and seizures. amend. IV; Ill. Const. 1970, art. I,

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