Opinion
No. 1-15-1355
09-01-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK NODORA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 14 CR 5964 Honorable Maura Slattery Boyle, Judge Presiding. JUSTICE DELORT delivered the judgment of the court.
Presiding Justice Hoffman and Justice Rochford concurred in the judgment.
ORDER
¶ 1 Held: We affirm the circuit court's denial of defendant's pretrial motion to suppress evidence over his contention that the search of his backpack in the interest of officer safety exceeded the scope of a search permitted by Terry v. Ohio, 392 U.S. 1 (1968). ¶ 2 Following a bench trial, defendant was convicted of possession of methamphetamine (720 ILCS 646/60(a)(2) (West 2014)) and aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1) (West 2014)), and sentenced to two concurrent terms of three years' imprisonment. On appeal, defendant argues that the trial court erred by denying his motion to suppress evidence that resulted from a warrantless search in violation of the Fourth Amendment. We affirm. ¶ 3 Defendant was charged with armed violence, possession with intent to deliver methamphetamine, defacing identification marks of a firearm, and various counts of AUUW. Prior to trial, defendant moved to quash his arrest and suppress evidence of the gun and methamphetamine, arguing it was the result of an illegal, warrantless search. The court held the suppression hearing immediately before the bench trial. ¶ 4 At the suppression hearing, Megan Hovaniec testified that, on February 28, 2014, around 7:30 p.m., she was driving her vehicle, a Mitsubishi Eclipse. Defendant, whom she was dating at the time, was in the passenger seat. While driving on Leclaire Avenue, a police car drove out of an alleyway and almost collided with her vehicle. Both vehicles stopped, but the officer subsequently waved her forward. Hovaniec continued driving on Leclaire for several blocks, and the police car travelled behind her. Hovaniec was driving the speed limit, but after approximately four blocks, the police activated their lights and pulled her over. ¶ 5 When Hovaniec stopped, one officer approached her side of the car and another approached the passenger side of the car. The officer on her side asked for her license and registration. The officer would not respond to her questions, and although she eventually produced her insurance information on her cell phone, the officer did not look at it. Instead, he took her license and returned to the police vehicle. ¶ 6 Less than five minutes elapsed, four officers approached her vehicle; two officers were on each side. The officers asked Hovaniec and defendant to exit the vehicle. They both exited and walked to the rear of her vehicle. The officers did not tell Hovaniec and defendant that they were under arrest, but they began searching Hovaniec's vehicle, including her purse and the passenger compartment of her car. An officer removed defendant's backpack from the passenger side of the vehicle. The backpack was closed, but the officers unzipped it and searched it. Inside the backpack, the officers looked though various pieces of mail and found an opaque, black case. Hovaniec could not recall whether the case was zipped closed. The case was six inches by four inches long and had a zipper. Although Hovaniec did not observe the officers open the case, she heard them state that they found drugs inside it. ¶ 7 After finding the case, the officers handcuffed Hovaniec and defendant and continued searching the backpack. Hovaniec did not observe the officers find a gun, but she knew they found one. After the weapon was found, officers arranged to have Hovaniec and defendant transported to the police station. When the police inquired about who owned the backpack, defendant stated that it belonged to him. ¶ 8 Hovaniec did not observe a weapon or drugs while she was in her vehicle and could not see into the backpack because it had been zipped closed. There were no warrants out for her or defendant's arrest that night, nor did the police have a warrant to search her vehicle. Hovaniec acknowledged that the license plates on her car were from a Michigan dealership and that she did not have the correct license plates displayed. She estimated that at least 15 minutes passed between the time the officers stopped her vehicle and the time she was arrested. ¶ 9 Chicago police officer Christopher Lane testified he was on duty driving a marked patrol car with three other officers on February 28, 2014, at approximately 7:20 p.m. Lane observed a Mitsubishi Eclipse use an alley as a through street, and, after observing several traffic violations, conducted an inquiry on the vehicle's registration. Based on the inquiry, Lane discovered that the license plates were Michigan dealer plates that had been reported as missing and cancelled. After two to three blocks, Lane "curbed" the vehicle. ¶ 10 Lane approached the driver's side of the vehicle and his partner, Officer Thomas Bakula, approached the passenger side. The two other officers stood at the back of the vehicle. Defendant was sitting in the passenger side. Lane did not see anything in defendant's hands or lap at that time. Lane spoke with Hovaniec and was initially going to ask her for her driver's license and registration. However, before obtaining her information, Lane's partner alerted him to a gun in the vehicle. Lane and Bakula asked Hovaniec and defendant to step out of the vehicle. Lane detained Hovaniec, Bakula detained defendant, and the officers escorted them to the back of the vehicle where the other two officers stood. ¶ 11 Lane then went to the passenger side of the vehicle and observed the butt of a handgun in plain view protruding from a backpack. He searched the backpack and found inside an unloaded, two-tone Smith and Wesson handgun; two magazines loaded with 12 rounds each; several pieces of mail with defendant's name; other personal effects; and a black leather cell phone case with a zipper. The case was opaque and he could not see what was inside of it without opening it. Lane opened the phone case and found three bags of suspected methamphetamine, a scale, and a zip-top bag containing multiple empty zip-top bags. As Lane searched the backpack and black case, defendant was detained at the rear of the vehicle. After finding the weapon and black case, Lane arrested defendant and called for a transport vehicle. Lane specified that defendant was not arrested until after he found the weapon and black case containing suspected methamphetamine. There were no arrest warrants for defendant or Hovaniec that evening, nor did the officers have a warrant to search Hovaniec's vehicle. ¶ 12 On cross-examination, Lane testified that Hovaniec's car "practically" cut him off when driving, and he was initially going to pull her over for traffic violations, such as failing to use her turn signal and failing to yield to a police car. Sometime after pulling the vehicle over, Lane handcuffed Hovaniec and Bakula handcuffed defendant. They did this for officer safety because of the presence of the firearm. Lane's police car was not equipped with a "cage" in the back seat to transport or hold persons in custody. After securing the scene by detaining both Hovaniec and defendant, Lane looked at the passenger side of the car. He observed that the backpack sitting on the floor of the passenger side was open with the gun exposed. Lane estimated that two minutes elapsed between the time he pulled Hovaniec over until the time he called for a backup car to transport defendant and Hovaniec. He issued four citations to Hovaniec. The suppression hearing then concluded. ¶ 13 Following arguments, the court denied defendant's motion to suppress. The court found that Hovaniec's testimony was not believable and that "[t]here was probable cause" and "exigent circumstances in regards to finding the gun. And the opaque case." The court went on to state:
"This isn't even in the location where the back pack and gun are. It's the same compartment or bag they are both in. It does lead to them looking because the gun was unloaded, they don't know if there's additional bullets. And/or what else the weapons might be. Just for the safety of the officers, opening that opaque case is clearly within their authority."¶ 14 The case proceeded to a bench trial. The State adopted Officer Lane's testimony from the motion hearing in its case-in-chief. Officer Thomas Bakula testified that on February 28, 2014, at approximately 7:34 p.m., he was in the passenger seat of a marked squad car with three other officers. They conducted a traffic stop on a vehicle, and Bakula approached the passenger side of the vehicle while Lane approached the driver's side. The passenger side window was down and Bakula observed a backpack between defendant's legs in the front passenger seat. The backpack was open with the butt of a gun exposed in plain view. Upon seeing the gun, Bakula ordered defendant out of the car and informed his partner there was a gun present. Bakula handcuffed defendant and took him to the rear of the vehicle. ¶ 15 Bakula was present when Lane recovered the backpack and observed him pull out a Smith and Wesson gun with bullets in a magazine. He could not see the serial number on the gun because it had been scratched off. Prior to having defendant transported to the police station, Bakula conducted a custodial search of defendant and recovered $495 in cash. Bakula drove the impounded vehicle, containing the backpack, back to the police station. He inventoried the contents of the backpack, including the gun, three bags of methamphetamine, and two pieces of mail. ¶ 16 On cross-examination, Bakula acknowledged that there were no magazines in the gun when he was doing the inventory at the police station. He further acknowledged that he did not search defendant himself but was present when defendant was searched. ¶ 17 The parties stipulated that, if called, Nancy McDonagh would testify that she was employed by the Illinois State Police crime lab and qualified as an expert in forensic chemistry. In McDonagh's expert opinion, within a reasonable degree of scientific certainty, one of the three items she received tested positive for six grams methamphetamine. The parties also stipulated to the chain of custody, as well as a certification from the Illinois State Police that defendant had not been issued a Firearm Owner's Identification card. ¶ 18 The defense adopted Hovaniec's testimony from the motion hearing for its case in chief and rested without presenting additional evidence. Following arguments, the court found defendant not guilty of armed violence or defacing a firearm, but guilty of possession of a methamphetamine and four counts of AUUW. ¶ 19 Defendant filed a motion for a new trial, arguing, inter alia, that the court erred by denying his motion to suppress prior to trial. The court denied defendant's motion for a new trial, finding no Fourth Amendment violation. ¶ 20 The court thereafter sentenced defendant to two terms of three years' imprisonment for possession of a controlled substance and one of the AUUW counts with a recommendation for boot camp and two years of mandatory supervised release. The court merged the various AUUW counts. Defendant filed a motion to reconsider sentence, which the court denied. This appeal followed. ¶ 21 On appeal, defendant contends the trial court erroneously denied his motion to suppress evidence obtained by a warrantless search in violation of the Fourth Amendment. He asserts the search of the closed black case was illegal because, before recovering the weapon, the police had already detained him so he could not have posed a threat. Thus, he argues that evidence of the methamphetamine discovered in the black case should have been suppressed and his possession of a controlled substance conviction must be reversed outright. He does not challenge his AUUW conviction. ¶ 22 In reviewing an order denying defendant's motion to quash arrest and suppress evidence, mixed questions of law and fact are presented. People v. Pitman, 211 Ill. 2d 502, 512 (2004). Factual findings made by the trial court will be upheld unless they are against the manifest weight of the evidence, whereas we apply de novo review regarding the trial court's application of the facts to the issues presented and the ultimate question of whether the evidence should be suppressed. Id. ¶ 23 The Fourth Amendment to the United States Constitution guarantees the right of the people to be free from unreasonable searches and seizures. U.S. Const., amend. IV. Reasonableness under that amendment generally requires a warrant supported by probable cause. People v. Sorenson, 196 Ill. 2d 425, 432 (2001). However, in Terry v. Ohio, 392 U.S. 1, 21-22 (1968), the Supreme Court recognized a limited exception to this requirement that permits a police officer, under appropriate circumstances, to conduct a brief, investigatory stop of a person when the officer reasonably believes that the person has committed or is about to commit a crime. People v. Sanders, 2013 IL App (1st) 102696, ¶ 13. This exception is codified in section 107-14 of the Code of Criminal Procedure of 1963. 725 ILCS 5/107-14(a) (West 2014). ¶ 24 Here, defendant does not challenge the validity of the stop and concedes the officers justifiably searched his backpack to seize the gun. Instead, he contends that the officers did not have a reasonable justification to search the black opaque case after detaining him and Hovaniec and recovering the gun in his backpack because there was no longer a threat to officer safety. The State counters that because the officers knew defendant was armed, Officer Lane was justified in searching the rest of defendant's backpack to determine whether defendant was in possession of additional weapons. ¶ 25 Whether an investigatory stop is valid is a separate question from whether a search for weapons is valid. People v. Thomas, 198 Ill. 2d 103, 109 (2001). The fact that an officer has reason to stop a person does not automatically justify a search for weapons. People v. Flowers, 179 Ill. 2d 257, 263 (1997). Rather, the officer must have reason to believe that the individual is armed and presently dangerous to the officer or to others. Id. "The sole justification for the search allowed by the Terry exception is the protection of the police officer and others in the vicinity, not to gather evidence." Id.; see also 725 ILCS 5/108-1.01 (West 2014) ("When a peace officer has stopped a person for temporary questioning pursuant to Section 107-14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons.") In the context of an automobile stop, where police have a reasonable suspicion based on specific and articulable facts to believe that a vehicle occupant may be armed and dangerous, they may conduct a protective search for weapons, not only of the suspect's person, but also of the passenger compartment of the automobile. Sorenson, 196 Ill. 2d at 440 (citing Michigan v. Long, 463 U.S. 1032, 1048-49 (1983)). "If the protective search goes beyond what is necessary to determine if a suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." Id. at 432 (citing Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). ¶ 26 Although the standard for the officer's belief is an objective one, the officer's subjective belief regarding the safety of the situation is one of the factors that a court may consider in determining whether a weapons search was valid under Terry. Flowers, 179 Ill. 2d at 264. The scope of the search must be confined to " 'an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' " Sorenson, 196 Ill. 2d at 440 (quoting Terry, 392 U.S. at 29). "In evaluating the validity of an officer's protective conduct under Terry, the touchstone of the analysis is the reasonableness under the circumstances of the particular governmental invasion of a citizen's personal security." Id. at 441 (citing Long, 463 U.S. at 1051). ¶ 27 Here, we find defendant did not meet his burden to establish that the court erred by denying his motion to suppress. The record demonstrates that the officer, after validly stopping Hovaniec's vehicle, immediately observed a gun in plain view protruding from defendant's backpack, located on the floor between his feet. This objective circumstance supports a reasonable belief that defendant was armed and dangerous. Thus, we find it was not unreasonable that, after detaining Hovaniec and defendant for officer safety, the officer continued to search the rest of the backpack, including the black case, for other possible weapons or ammunition after recovering the gun from the backpack. People v. Kantowski, 98 Ill. 2d 75, 84 (1983) (under Terry, a search may be conducted of a place in addition to the search of the person and after the discovery of a weapon). Evidence showed that the black case was four inches by six inches, large enough to contain additional weapons or bullets. In light of the circumstances, we cannot conclude that the officer's search was unreasonable or beyond the scope of a Terry search. As the methamphetamine was discovered during a legitimate Terry search of the backpack contents, the Fourth Amendment does not require its suppression. Long, 463 U.S. at 1050. ¶ 28 Based on the foregoing, we affirm the judgment of the circuit court of Cook County. ¶ 29 Affirmed.
The court did not orally merge the four AUUW counts. The mittimus lists each count of AUUW and reflects a sentence on each of the four counts. However, the mittimus also reflects that the four AUUW counts were merged. --------