After a bench trial, the trial court found defendant,Paul T. Raibley, guilty of two counts of child pornography (720ILCS 5/11-20.1(a)(1)(vii) (West 1998)) and two counts of residential burglary (720 ILCS 5/19-3 (West 1998)). The court sentencedhim to 12 years' imprisonment for each count, ordering that theterms run concurrently with each other but consecutively to a 10-year term of imprisonment that the United States District Courtfor the Central District of Illinois imposed, for the sameconduct, in United States v. Raibley, No. 98-CR-40058. Defendantappeals on several grounds, but we need consider only one: thatthe trial court erred in finding defendant had consented to apolice officer's taking the incriminating videotape from hispickup truck to the county jail and viewing it there. We agreewith that contention and therefore reverse the trial court'sjudgment as well as the conviction on all four counts.

On October 14, 1998, the State's Attorney filed sixcounts against defendant in the Mason County circuit court. Count I alleged:

"[O]n September 13, 1998, in MasonCounty[,] [defendant] committed the offenseof [child pornography] in that *** defendantknowingly [videotaped] Jane Doe, a child whom*** defendant knew to be under the age [18]years, while [the] child was the object oflewd exhibition of the unclothed buttocks ofanother person [sic] ***."

Count II was identical to count I, except it allegedthat defendant videotaped Jane Doe "while [the] child was depicted in a setting involving the lewd exhibition of the unclothed genitals of [the] child."

The State dismissed count III prior to trial, and thetrial court acquitted defendant of count IV, predatory criminalsexual assault (720 ILCS 5/12-14.1(a)(1) (West 1998)).

Count V alleged:

"[O]n September 13, 1998, in MasonCounty, [defendant] committed the offense of[residential burglary] in that *** defendantknowingly and without authority entered thedwelling place of John Doe, located in Havana, Mason County, Illinois, with intent tocommit therein a felony of child pornography***."

Count VI repeated count V verbatim.

The trial court found defendant guilty of counts I, II,V, and VI.

Defendant filed a pretrial motion to suppress thevideotape of John Doe's children, arguing that by shrugging, hehad not given the police permission to seize and view the videotape. At the hearing on the motion, only witnesses for the Statetestified, and no significant factual discrepancies emerged fromtheir testimony. Neither attorney argued that the witnesses wereincorrect in their recitation of the historical facts, althoughthey disagreed on the inferences one should draw from thosefacts.

Eric Lindburg was a police officer for Aledo, Illinois. He testified that on October 10, 1998, at 4:13 p.m., he wasdispatched to Wal-Mart in Aledo, where a man was reportedlyvideotaping employees entering and exiting the store. At Wal-Mart, Lindburg spoke with a store manager, who described a short,red-haired man in a small, white pickup truck. She remembered aportion of the license-plate number. She said the man had becomenervous and left in a hurry when she noticed he was videotapingan employee. Lindburg testified he also spoke with the employeewhom the man had videotaped, a 17-year-old female. The teenagernever noticed the man, but the manager had "told her there was aguy videotaping her from the parking lot as she was walking in." No one suggested the man was armed or dangerous in any way.

Seeing no white pickup truck in the parking lot,Lindburg resumed his regular patrol. Over the radio, he requested other police officers to keep an eye out for the truck,because he wanted "to speak to the individual." About an hourlater, he cruised by Wal-Mart again; this time the truck was inthe parking lot, but no one was in the truck. Lindburg testifiedhe ran the license plate and ascertained the truck belonged todefendant. He then went into Wal-Mart to ask the manager if shesaw the man in the store. While talking with the manager, heglanced over his shoulder and saw the truck speeding out of theparking lot. Lindburg ran to his patrol car and radioed that thetruck had just left the parking lot at a high speed and was goingwest on the highway. He pursued the truck in his patrol car butlost sight of it. He did not intend to write a citation becausespeeding in a parking lot was not illegal. He merely wanted totalk with defendant because his hasty departures from the parkinglot were suspicious and Lindburg was concerned he might have beenstalking the teenager.

Lindburg spotted the truck a mile down the highway atthe four-way intersection in the center of Aledo. A MercerCounty deputy sheriff, Sean Hast, had stopped the truck byangling his patrol car 10 feet in front of it. Both Lindburg andHast had turned on the overhead emergency lights of their patrolcars. Lindburg testified: "[Defendant] had his hands out of thewindow[,] *** and [Hast] had him get up against the vehicle and[began] to pat him down." Hast "may have had his hand on hisfirearm in the holster yet or near it." Defendant appearedsurprised and nervous. Lindburg told Hast, "['][N]o, he is notunder arrest. I just need to speak with him.'" Lindburg thenstated, "[Hast] said [']okay,['] and I believe he apologized to[defendant] and got in his vehicle and drove off."

After assuring him he was not under arrest, Lindburg"asked [defendant] if he would mind speaking with [him] aroundthe corner[.] [I]f he wanted to pull his vehicle around[,] there[was] a parking spot." After he and Lindburg moved out of theintersection, Lindburg might have patted defendant down again,but he was uncertain. Defendant was "still shaking, a littlenervous." Lindburg asked him why he had videotaped the Wal-Martemployee. Defendant asked if it was illegal to videotape aperson in a parking lot. Lindburg said no but it looked "realsuspicious." He asked defendant "if he had anything illegal inhis [pickup] truck." When defendant said no, Lindburg "asked himif he would mind if [he] made sure." The prosecutor questionedLindburg as follows:

"Q. [W]hat [were] his words[,] then[,]on the consent ***?

A. He just said he didn't mind if Isearched it [(the truck)].

Q. I note you made a gesture there as youtestified[.] [D]id he make any gesture as heanswered you?

A. I believe he shrugged and said hedidn't mind if I did."

As Lindburg searched the truck, defendant reached under the seat,pulled out some videocassette folders, and stuck them in his backpocket. Lindburg told him he "didn't want him to reach under theseat" again.

In the truck, Lindburg found marijuana and a pipe forsmoking it. He handcuffed defendant, read him his Miranda rights(Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct.1602 (1966)), and put him in the front seat of the patrol car. By then, Hast had returned and was assisting in the search. Under the seat, they found two videotapes. Defense counsel askedLindburg the following:

"Q. At the location of the search, didyou have any conversation with *** [d]efendant about the tapes?

A. Yes, I asked him if anything illegal[was on them], pornography or child pornography.

Q. How did he respond?

A. There were tapes of him and hisgirlfriend on there. There may be some pornography."

Lindburg testified he called Mercer County State'sAttorney Baron Heintz on a cellular telephone and asked him,within earshot of defendant, if he could legally view the videotapes. Heintz told him he could if defendant consented. Lindburg then asked defendant--who was then sitting in the patrolcar with his hands cuffed in front of him--"if he minded if[they] took a look at the tapes. *** That is when he gave theshrug." Defense counsel asked Lindburg:

"Q. And why were the videotapes seizedat that point?

A. Because I asked [defendant] if hewould mind if I took a look at the tape. Hedidn't object.

Q. What did he say?

A. Nothing, shrugged his shoulders."

After gathering up the evidence, Lindburg took defendant to the Mercer County jail. "We entered through the sallyport and took him to the jailers [and] told them he was underarrest for possession of cannabis and paraphernalia." ThenLindburg got the videotapes out of his patrol car and broughtthem into the jail. A county employee helped him hook up someaudiovisual equipment in the dispatcher's office, next door tothe room where the jailers were booking defendant. Between thebooking room and the dispatcher's office, there was a window,through which defendant could see Lindburg and others carryingthe audiovisual equipment into the office.

In the dispatcher's office, the police viewed the firstvideotape, which had footage of the teenager in the parking lotbut no pornography. Defense counsel asked Lindburg:

"Q. At any time prior to [your] viewingthat particular tape [(the first videotapethat had no incriminating footage),] did[defendant] verbalize, say [']go ahead andwatch the tape['?] Did he say anything toindicate consent?

A. He never said [']go ahead and watchthe tapes.[']"

Lindburg further testified:

"A. He was in jail. We had previouslyalready told him we were taking [the videotapes] to view them[,] however.

Q. You said [']we['] had advised him?

A. I had advised him."

After Lindburg viewed the first videotape, defendanttold the jailer he wanted to speak with Lindburg "in the back ofthe jail." Lindburg testified:

"A. I went back there to talk to him.

Q. And what did he say?

A. He said that he didn't want a lot ofpeople viewing that tape. If I needed to usehis video camcorder to view the tape, hewould show me how to do that.

Q. Did you utilize the video camcorder?

A. I told him we had already had ithooked up and only me and the guy who hookedit up [would view the videotape] becausethere wasn't going to be a lot of peoplelooking at it[,] anyway.

Q. What did he say after that?

A. He said [']okay.[']

Q. And what did you say?

A. We got in [a] discussion about thefact he knew what he was doing was wrong andthat he needed help."

Lindburg then viewed the second videotape, whichcontained the child pornography that counts I and II describe. Afterward, he and an investigator interviewed defendant, eliciting from him the admission that he had made the incriminatingvideotape.

In its order denying the motion to suppress, the trialcourt noted that defendant was "[34] years old, a college graduate, and working as a scientist." The order further stated:

"The evidence is somewhat vague as towhether there was an actual verbal consent tothe viewing of the tapes by *** [d]efendantat the time they were seized from the car, ormere acquiescence. It is clear that by ***[d]efendant's body language, the officerthought he had given consent[] and that[,]further[,] *** [d]efendant did not voice anyobjection to the viewing of the tapes at anytime.

*** [P]rior to the viewing of the tapecontaining evidence of child pornography, ***[d]efendant took an affirmative act indicative of his voluntary consent by offering hisvideo camera for the officers to use in viewing the tape, saying he didn't want others tosee it. This act, coupled with the originalimplied consent, even if verbal consent wasnot clearly given, in light of his age, education, intelligence, non[]coercivesetting[,] and all relevant circumstances,leads the [c]ourt to conclude that he voluntarily consented to the viewing of the tape."

This appeal followed.

The State argues that because defendant filed hisposttrial motion late, he has forfeited the issue of whether heconsented to the viewing of the videotape. His posttrial motiondiscussed the issue, but he filed the motion on May 3, 2000, morethan 30 days after March 22, 2000, when the trial court issuedits order finding him guilty of child pornography and residentialburglary. See 725 ILCS 5/116-1(b) (West 2000); People v.Segoviano, 189 Ill. 2d 228, 243, 725 N.E.2d 1275, 1282 (2000).

Citing our decision in People v. Gauwitz, 80 Ill. App.3d 362, 400 N.E.2d 92 (1980), defendant argues that because theState never moved to strike the posttrial motion in trial court,the State has waived the issue of untimeliness. Defendant iscorrect. On June 27, 2000, in the hearing on the posttrialmotion, the prosecutor never argued that the motion was untimely. He merely requested that the trial court deny the motion onsubstantive grounds. As we said in Gauwitz, 80 Ill. App. 3d at367, 400 N.E.2d at 96, waiver is a "two-way street." If theState never alerted the trial court to the untimeliness of theposttrial motion but instead attacked the substantive merits ofthe motion, the State necessarily recognized the trial court'sjurisdiction and waived the issue of untimeliness. See Gauwitz,80 Ill. App. 3d at 367, 400 N.E.2d at 96; see also People v.Eddington, 129 Ill. App. 3d 745, 751, 473 N.E.2d 103, 108 (1984)(by actively participating, without objection, in proceedings ona late posttrial motion, the State revested the trial court withjurisdiction).

While giving deference to a trial court's findings ofhistorical fact and reasonable inferences from those facts, wereview de novo the reasonableness of a warrantless search orseizure and, therefore, the applicability of exceptions to therequirement of a warrant. People v. Blair, 321 Ill. App. 3d 373,748 N.E.2d 318 (2001), appeal denied, 195 Ill. 2d 582, 755 N.E.2d479 (2001). The parties do not dispute the historical facts inthis case, although they dispute whether defendant voluntarilyconsented to the viewing of the videotape.

The state and federal constitutions protect the peoplefrom unreasonable searches and seizures. 1970 Ill. Const., art.I,