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People v. Bartimo
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0351 Rel
Case Date: 01/15/2004

NO. 4-03-0351

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee,
                         v.
ANTHONY W. BARTIMO,
                         Defendant-Appellant.
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Appeal from
Circuit Court of
Woodford County
No. 02CF24

Honorable
Charles M. Feeney,
Judge Presiding.


JUSTICE TURNER delivered the opinion of the court:

In March 2002, the State charged defendant, Anthony W.Bartimo, with unlawful possession of a controlled substance,unlawful use of a weapon, and unlawful possession of cannabis. In July 2002, defendant filed a motion to suppress, which thetrial court denied. In January 2003, the trial court founddefendant guilty of unlawful use of a weapon and unlawful possession of cannabis. The court denied defendant's posttrial motionand sentenced him to 24 months' probation on each offense.

On appeal, defendant argues (1) the trial court erredin denying his motion to suppress, (2) he was wrongfully convicted of unlawful use of a weapon, and (3) he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

In March 2002, the State charged defendant by information with (1) unlawful possession of a controlled substance (720ILCS 570/402(c) (West 2002)), alleging he knowingly possessedless than 15 grams of a substance containing cocaine; (2) unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 2002)), alleginghe knowingly possessed in a vehicle a 9-millimeter handgun; and(3) unlawful possession of cannabis (720 ILCS 550/4(c) (West2002)), alleging he knowingly possessed more than 10 grams butless than 30 grams of a substance containing cannabis.

In July 2002, defendant filed a motion to suppressevidence, alleging he was illegally seized by an officer for anexpired license plate when the plates were valid as evidenced bya temporary sticker. In August 2002, the State dismissed theunlawful-possession-of-a-substance-containing-cocaine charge. InSeptember 2002, the trial court conducted a hearing on defendant's motion to suppress. Defendant testified he was drivinghis car on March 11, 2002, at about 11 p.m. He testified hislicense plates expired on November 30, 2001, but the "yellow 'T'sticker" extended them for 120 days. He received a new set oflicense plates a "few days prior to being stopped," and they werein the backseat of the car when the officer pulled him over. TheState moved for a directed finding on defendant's motion, whichthe trial court denied.

The State called Woodford County deputy sheriff ShawnTrent, who testified he observed a black Audi on March 11, 2002,and he ran the registration plate on the vehicle. A dispatcheradvised him the registration expired in November 2001. Prior tostopping the vehicle, Deputy Trent observed a November 2001sticker on the back of the license plate. He then stopped thevehicle to investigate the status of the plates. After shininghis spotlight on defendant's vehicle, he noticed a temporaryregistration sticker. At the time of the stop, he was unaware ofhow long a "T" sticker was valid. The trial court found DeputyTrent had a "good-faith basis" to stop the vehicle because of theexpired plates and denied defendant's motion.

In January 2003, defendant's bench trial commenced. Deputy Trent testified to the expired license plate and his stopof defendant's vehicle. Upon approaching the vehicle, Trentnoticed a "hard-cased shotgun or rifle case protruding from thetrunk" and an unzipped soft-sided shotgun or rifle case on thefloorboard of the backseat. Trent then asked defendant foridentification and he presented a traffic citation in lieu of hislicense. Trent returned to his squad car and checked defendant'slicense.

Upon returning to defendant's car, Trent noticeddefendant with his hand "behind the passenger seat," which helater removed. Deputy Trent then asked defendant if he had anyweapons in the vehicle. Trent stated defendant appeared "nervous" and advised him that he had a rifle in the trunk. Whenasked if he had other firearms in his vehicle, defendant responded "No." When Deputy Trent asked for defendant's consent tosearch the vehicle, defendant "did not respond." Trent againasked defendant if he had any weapons in the vehicle. Appearingnervous, defendant reached toward "the center console passengerseat area like he was going to grab an object." Trent againasked him about any other weapons, and defendant stated "he had apistol in the laundry basket on the passenger seat next to him." Trent then ordered defendant out of the car to "get him away fromthe pistol" and for officer safety. Trent began searchingdefendant, who "reached down towards his waistband consistentwith producing a weapon," and Trent handcuffed him. A frisk ofdefendant for weapons turned up a "wooden dugout," a "one-hitterpipe," and a "[B]aggie of cannabis" in his pants pocket. Trentsearched the car and found cannabis and an unloaded 9-millimeterpistol in a nylon holster and "an ammunition pouch in the frontof the holster with a loaded magazine" in a laundry basket in therear seat. Trent also found a rifle in a case protruding fromthe car's trunk area.

Defendant testified he uses his 9-millimeter handgunfor target shooting, and he had targets and other similar itemsin his car when he was stopped. He stated he placed the handgun"all the way to the bottom of the [laundry] basket," and it wasunloaded and in a closed holster. He testified he could not haveaccessed the gun from the driver's seat. When the officerreturned to his car, defendant had his hand behind the passengerseat looking for his license plates. Defendant stated theholster did not completely cover the gun. He also admittedowning the marijuana on his person and in his car.

Following closing arguments, the trial court founddefendant guilty of unlawful use of a weapon and unlawful possession of cannabis. In February 2003, defendant filed a posttrialmotion for a new trial, alleging, inter alia, the State failed toprove him guilty of unlawful use of a weapon beyond a reasonabledoubt and he received ineffective assistance of counsel. InMarch 2003, the trial court denied the motion. Thereafter, thecourt sentenced defendant to 24 months' probation on each offensealong with various fines. This appeal followed.

II. ANALYSIS

A. Motion To Suppress

Defendant argues the trial court erred in denying hismotion to suppress. We disagree.

1. Standard of Review and Burden of Proof

In reviewing a motion to suppress on appeal, mixedquestions of law and fact are presented. People v. Gherna, 203Ill. 2d 165, 175, 784 N.E.2d 799, 805 (2003). A trial court'sassessment of witness credibility and factual determinations willbe reversed only if manifestly erroneous. People v. Anthony, 198Ill. 2d 194, 200-01, 761 N.E.2d 1188, 1191 (2001). However, theultimate determination of whether the evidence is suppressed isentitled to de novo review. See People v. Crane, 195 Ill. 2d 42,51, 743 N.E.2d 555, 562 (2001).

On a motion to suppress evidence, the defendant has theburden of proving the search and seizure were unlawful (725 ILCS5/114-12 (West 2002)). "However, once the defendant makes aprima facie showing of an illegal search and seizure, the burdenshifts to the State to produce evidence justifying the intrusion." People v. Ortiz, 317 Ill. App. 3d 212, 220, 738 N.E.2d1011, 1018 (2000).

Defendant argues the trial court misapplied the evidentiary burden. We disagree. Defendant testified in support ofhis motion to suppress. After defense counsel indicated nofurther evidence would be presented, the State moved for adirected finding. The trial court denied the motion, and theState went forward with its evidence to establish the officer wasjustified in his intrusion. Defendant's claim that the trialcourt incorrectly understood the burden has no support in therecord. The court commented on defendant's burden in the contextof his motion to suppress evidence and consistent with the burdenrequired of the movant in that instance. Further, defendant'sclaim that his motion for a directed verdict at the close of hispresentation of evidence may have been successful if the courthad understood the burden is meritless because it was the Statethat moved for a directed finding. Thus, we find no error.2. The Traffic Stop

The fourth amendment to the United States Constitution guarantees "[t]he right of the people to be secure in theirpersons, houses, papers, and effects, against unreasonablesearches and seizures." U.S. Const., amend. IV. Similarly, theIllinois Constitution affords citizens with "the right to besecure in their persons, houses, papers[,] and other possessionsagainst unreasonable searches, [and] seizures." Ill. Const.1970, art. I,

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