People v. Baltazar

No. 3--97--0361

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE ) Appeal from the Circuit Court
STATE OF ILLINOIS, ) for the 14th Judicial Circuit
) Henry County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 96--CF--47
)
LEONARDO BALTAZAR, ) Honorable
) Jay M. Hanson,
Defendant-Appellant. ) Judge Presiding

JUSTICE HOMER delivered the opinion of the court:

The defendant appeals his conviction and 10-year prison
sentence for unlawful possession of over 5,000 grams of cannabis
(720 ILCS 550/4(g) (West 1996)) and unlawful possession with
intent to deliver over 5,000 grams of cannabis (720 ILCS 550/5(g)
(West 1996)). We determine that the police search of the
defendant's U-Haul truck exceeded the scope of the defendant's
consent. Therefore, we reverse.

FACTS
On the morning of February 28, 1996, the defendant was
driving a U-Haul truck on Interstate 80 in Henry County when he
was stopped for speeding by Illinois State Police Sergeant James
Buysse. The defendant presented Buysse with his driver's license
and the truck's rental agreement. Buysse testified that the
rental agreement listed the defendant as the renter of the truck.
Buysse informed the defendant that he would receive a warning
ticket for speeding and asked him to accompany him back to the
squad car. The passenger travelling with the defendant, Agipato
Almonte, waited in the truck.
While they were sitting in the squad car, Buysse noticed
that the defendant appeared to be nervous because he was wringing
his hands and repeatedly glancing out the window. The defendant
explained that the passenger in the truck was his uncle who was
along to help with the driving. At the suppression hearing,
Buysse testified that the defendant could not remember his
passenger's name. At trial, Buysse testified that the defendant
identified the passenger by a false name, although he could not
remember the name that the defendant gave.
Buysse then approached Almonte who was still sitting in the
cab of the U-Haul. After Almonte produced his identification
card, Buysse observed that he spoke very little English. When
asked if he was related to the defendant, Almonte shook his head
and said "no." However, Buysse did not know whether Almonte
understood his questions.
After speaking to Almonte, Buysse returned to his squad car
and resumed questioning the defendant. The defendant explained
that he was moving to Detroit to begin a new job and that the U-
Haul contained his personal belongings. Buysse asked the
defendant if he could "take a look" inside the back of the U-
Haul. The defendant responded by saying, "sure." Buysse did not
tell the defendant the reason for his request or what he was
looking for.
After suggesting that the defendant remain in the squad car,
Buysse approached the truck with two other troopers who had
arrived on the scene. Upon opening the rear cargo door, Buysse
saw various items, including couches, dressers, a headboard,
mattresses, and bicycles. He also noticed a roll of packing tape
and thought it unusual because he saw no boxes.
Buysse and one of the other officers entered the cargo hold
of the truck and began moving items around. After moving one of
the couches which was lying upside down on another couch, Buysse
observed three cardboard boxes. At the suppression hearing,
Buysse testified that the boxes were sealed with tape and he had
to cut them open. At trial, he testified that the boxes were not
taped closed, but the flaps were folded down. Inside the first
box Buysse found an object wrapped in duct tape. Upon cutting
the object open, he found a green leafy substance that would
later field test as cannabis. Further investigation revealed
that the boxes contained 188 pounds of cannabis.
On appeal, the defendant raises the following issues: (1)
the trial court's denial of his motion to suppress the evidence;
(2) the trial court's admission of Buysse's hearsay testimony as
to the name written on the rental agreement; (3) the State's
failure to prove him guilty beyond a reasonable doubt; and (4)
the propriety of his sentence in light of our supreme court's
recent decision striking down Public Act 89--428, which amended
the code provisions under which he was sentenced. See Johnson v.
Edgar, 176 Ill. 2d 499, 680 N.E.2d 1372 (1997).

ANALYSIS
Ordinarily a trial court's ruling on a motion to suppress
evidence will not be disturbed on appeal unless it is manifestly
erroneous. People v. James, 163 Ill. 2d 302, 310, 645 N.E.2d 195, 199 (1994). However, when a determination concerning an
individual's constitutional rights depends on a legal conclusion
which is based upon undisputed facts, the decision should be
reviewed as a matter of law. People v. Anaya, 279 Ill. App. 3d
940, 945, 665 N.E.2d 525, 528 (1996); United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993). Because the facts are
essentially uncontroverted and the credibility of witnesses is
not at issue in the instant case, we will review the trial
court's decision de novo. See People v. Foskey, 136 Ill. 2d 66,
76, 554 N.E.2d 192, 197 (1990).
The defendant contends that the trial court erred in denying
his motion to suppress evidence seized during the search of his
rented U-Haul truck. He does not raise issue with the
voluntariness of his consensual response to Buysse's request to
"take a look" inside the back of the U-Haul. Rather, the
defendant argues that Buysse's actions exceeded the scope of his
consent because he only agreed to permit Buysse to look inside
the back of the truck to confirm that it contained the
defendant's personal items. He contends that he did not consent
to Buysse entering the truck, moving his personal belongings
around, and opening boxes or taped objects found in boxes.
The fourth amendment of the United States Constitution and
article I, section 6 of the Illinois Constitution protect
individuals from unreasonable searches and seizures. U.S.
Const., amend. IV; Ill. Const. 1970, art. I, 6. The fundamental
purpose of these provisions is to safeguard the privacy and
security of individuals against arbitrary invasions by
governmental officials. See People v. Dilworth, 169 Ill. 2d 195,
201, 661 N.E.2d 310, 314 (1996). It is well settled, however,
that an individual may consent to a search conducted without a
warrant, thereby eliminating the need for probable cause and a
search warrant. People v. Phillips, 264 Ill. App. 3d 213, 217,
636 N.E.2d 1118, 1121 (1994).
When the police rely upon consent as the basis for a
warrantless search, they have no more authority than they have
apparently been given by the voluntary consent of the defendant.
W. LaFave, Search & Seizure, 8.1(c), at 610 (3d ed. 1996). The
scope of their authority is not determined based on the
subjective intentions of the consenting party nor the subjective
interpretation of the searching officer. W. LaFave, Search &
Seizure, 8.1(c), at 610 (3d ed. 1996). Rather, the standard for
measuring the scope of a suspect's consent is that of "objective
reasonableness," which requires consideration of what a "typical
reasonable person [would] have understood by the exchange between
the officer and the suspect." Florida v. Jimeno, 500 U.S. 248,
251, 114 L. Ed. 2d 297, 302, 111 S. Ct. 1801, 1803-804 (1991).
In most instances, this determination is easily made because
courts ordinarily define the scope of a search by the express
object or purpose. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at
303, 111 S. Ct. at 1804. By stating the intended object of the
search either directly or by revealing a suspicion of specific
criminal activity, a police officer not only apprises the suspect
that his constitutional rights are being impacted, but he also
informs the suspect of the reasonable parameters of his inquiry.
For that reason, courts have determined that an officer may
search smaller containers found inside the larger area being
searched if it would be objectively reasonable to find the stated
object of the search in that smaller container. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302-03, 111 S. Ct. at 1804
(defendant's consent to search his car included search of a small
paper bag found in the car because he was informed that the
officer suspected that he possessed narcotics); Phillips, 264
Ill. App. 3d at 222, 636 N.E.2d at 1124 (defendant's consent to
search of his motorcycle included search of a jacket located in
the rear cargo area when the express object of the search was
narcotics); United States v. Lechuga, 925 F.2d 1035, 1042 (7th
Cir. 1991) (consent to search unfurnished apartment included
search of suitcase in closet because the express purpose of the
search was drugs); Rich, 992 F.2d at 506-07 (defendant's consent
to the officer's request to look in his truck included suitcase
located behind the passenger seat because the officer had just
asked the defendant if he had any narcotics in the truck).
The search in the instant case is problematic, however,
because the record reveals that Buysse did not express any
specific purpose for his request to "take a look" in the back of
the U-Haul truck. Further, our research has uncovered no
authority directly on point. Therefore, we must consider the
totality of the circumstances surrounding the exchange between
the defendant and Buysse to determine whether a typical
reasonable person would have believed that the scope of the
defendant's consent included permission for the officer to search
the contents of unopened boxes not in plain view in the cargo
hold of the truck and to cut open the sealed objects found inside
those boxes.
We acknowledge that it is not necessary for a police officer
to specifically use the term "search" to constitute a valid
search request under the fourth amendment. Rich, 922 F.2d at
506. However, the words used by the officer, when viewed in
context, must objectively communicate to a reasonable individual
that the officer is requesting permission to examine the vehicle
and its contents. Rich, 922 F.2d at 506. After our careful
review of the facts in the instant case, we determine that
Buysse's actions exceeded the scope of the defendant's consent.
Just prior to making the request to "take a look," Buysse
had asked the defendant where he was going and what he had in the
back of his truck. The defendant explained that all of his
personal belongings were in the cargo hold of the truck because
he was moving to Detroit to start a new job. Buysse immediately
followed the defendant's explanation with the question: "can I
take a look?" We determine that the defendant's affirmative
response, "sure," reasonably communicated to Buysse consent only
to look into the truck to see if it contained what the defendant
claimed it did, his personal belongings. At no time did Buysse
inform the defendant that he wanted to search for illegal drugs
or other contraband. Therefore, Buysse failed to reasonably
communicate to the defendant that he intended to conduct a
thorough search of the cargo hold of the defendant's U-Haul.
Upon opening the door of the cargo hold and seeing that it
contained what the defendant claimed, Buysse, having no probable
cause, was obligated to obtain additional consent if he wished to
investigate beyond the implied object of the search.
The State points out that the squad car in which the
defendant was sitting was located only two or three car lengths
behind the U-Haul. Therefore, the State contends that because
the defendant did not object when the officer entered the truck,
moved the contents around, and opened boxes and packages, the
defendant's consent was a "general consent." See United States
v. Verduzco, 996 F.2d 1220 (7th Cir. 1993), citing United States
v. Pena, 920 F.2d 1509 (10th Cir. 1990). Consequently, the State
argues that the scope of the search was unlimited. We disagree.
Although a defendant has the right to place explicit limitations
on the scope of his consent (Jimeno, 500 U.S. at 252, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804) as well as the right to withdraw
it before any incriminating evidence is found (U.S. v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986)), police officers remain
constrained by the bounds of reasonableness in conducting their
searches. See United States v. Harris, 928 F.2d 1113 (11th Cir.
1991). We decline to find that the defendant's failure to exit
the squad car and object once Buysse exceeded the scope of his
authority served to transform his limited consent to a general
consent to search.
We hold that an objectively reasonable person would have
understood the exchange between Buysse and the defendant to mean
simply that the defendant consented to Buysse looking into the
back of the truck to confirm that it contained the defendant's
furniture and other personal belongings. Because Buysse's search
exceeded the scope of the defendant's consent, we reverse the
trial court's ruling denying the defendant's motion to suppress.
Further, because the State cannot prevail on remand without the
evidence that we have held should have been suppressed, we
reverse the defendant's conviction and sentence outright. People
v. Sweborg, 293 Ill. App. 3d 298, 305, 688 N.E.2d 144, 149
(1997). The remaining issues raised by the defendant are
rendered moot by our decision.

CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Henry County is reversed.
Judgment reversed.
LYTTON, J., and MCCUSKEY, P.J., concur.