People v. Easley
Annotate this Case
No. 3--96--0364
(Consolidated with No. 3--96--0365)
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 14th Judicial Circuit
) Henry County, Illinois
Plaintiff-Appellee, )
)
v. ) Nos. 95--CM--377, 95--CM--354
)
ROGER L. EASLEY and BRIAN J. )
TERRILL, ) Honorable
) Jay Hanson,
Defendants-Appellants. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
The defendants, Roger L. Easley and Brian J. Terrill, were
convicted of unlawful possession of drug paraphernalia (720 ILCS
600/3.5(a) (West 1994)) and unlawful possession of cannabis (720
ILCS 550/4(c) (West 1994)). Easley was fined $1,250, and Terrill's
fine was $1,750. On appeal, the defendants challenge the stop and
search of their vehicle, the conduct of the trial and the
sufficiency of the evidence. After carefully reviewing the record,
we affirm.
FACTS
On May 12, 1995, Officer Shane Oleson of the Geneseo police
department (the officer) saw a white 1985 Toyota vehicle with no
rear registration light make an unsignaled right turn. The car
pulled into a parking lot, and the officer stopped his squad car
behind it. When the officer approached the car, he found the
defendants inside. The officer then asked the driver, Terrill, for
his driver's license. When Terrill opened his wallet, the officer
saw a business card decorated with a picture of a marijuana leaf
inside the wallet. Terrill immediately tried to hide the card from
the officer's view. The officer observed that Terrill appeared
nervous and was perspiring, and the vehicle's ashtray was open.
The officer returned to his squad car to run Terrill's license
through the computer. Because the officer saw the picture of the
marijuana leaf, he ran a check of Terrill's criminal history.
During this time, the defendants remained in the car. The
officer's investigation revealed that Terrill's license was valid,
and he had a prior conviction for a drug offense. When the officer
returned to the defendants' car, he noted that the ashtray was
closed. The officer gave Terrill a verbal warning concerning the
rear registration light and the need to signal his turns.
At this time, a conversation took place during which the
defendants asked how much farther they would have to drive to reach
Chicago. When the officer asked why they were going to Chicago,
the defendants said they were going to a festival to advocate the
legalization of hemp. The officer told the defendants that he was
concerned, based upon seeing the marijuana leaf picture and
Terrill's previous criminal history, that there might be illegal
drugs in the vehicle. The defendants denied carrying any illegal
substances. As a result of their response, the officer asked if he
could search the car. The defendants refused to give permission
for the officer to search the vehicle.
The officer informed the defendants that they were free to go.
However, he told them that he would detain the vehicle to give a
canine unit the chance to walk around the car to determine if drugs
were present. Approximately two minutes elapsed before the canine
unit arrived. The dog proceeded to alert when he reached the trunk
area of the car. The officer then searched the trunk of the
vehicle and found a large box of glass pipes ordinarily used to
smoke marijuana, another box of glass pipes with brass screens also
used to smoke marijuana, several products made from hemp, including
cookie dough mix, pancake mix, lip balm and sunblock, and various
items promoting the legalization of hemp, including bumper
stickers.
Based upon the possession of these items, the officer arrested
the defendants on a charge of unlawful possession of drug
paraphernalia. Following the arrest, the officer searched the
interior of the defendants' car and found 12« grams of marijuana
located inside a camcorder case on the front seat. Consequently,
the defendants were charged with unlawful possession of cannabis.
Prior to trial, the State waived the prospect of any
incarceration for the defendants if they were found guilty of the
various offenses. Based upon this waiver, the trial court denied
the defendants' request for appointment of the public defender.
The defendants filed numerous motions attacking the jurisdiction of
the court and the propriety of the officer's stop and search of the
vehicle. All of the defendants' motions were denied.
At trial, Officer Oleson testified about his observations of
the defendants on May 12, 1995, as well as their arrest and his
search of the vehicle. Two other officers of the Geneseo police
department testified on behalf of the State. Their testimony
corroborated Officer Oleson's testimony.
Following the presentation of the evidence, the defendants
tendered to the court several non-pattern IPI jury instructions.
The judge refused to give the jury these instructions.
After deliberating, the jury found the defendants guilty as
charged. This timely appeal followed.
ISSUES AND ANALYSIS
I. Stop and Search
The defendants first challenge the propriety of the stop and
search of their vehicle. Where, as here, there is no real question
regarding the facts, we conduct a de novo review of the trial
court's determination of reasonable suspicion to stop a vehicle and
probable cause to conduct a search. Ornelas v. United States, ___
U.S. ___, 134 L. Ed. 2d 911, 920-21, 116 S. Ct. 1657 (1996); see
also People v. Kidd, 175 Ill. 2d 1, 25-26, 675 N.E.2d 910, 922
(1996). Following our de novo review, we conclude that the trial
court correctly found that the stop and search were proper.
Generally, a traffic violation provides a sufficient basis for
a traffic stop. People v. Hood, 265 Ill. App. 3d 232, 241, 638 N.E.2d 264, 271 (1994). Accordingly, a police officer may properly
stop a motor vehicle when the driver turns without signaling.
People v. Shepherd, 242 Ill. App. 3d 24, 29, 610 N.E.2d 163, 166
(1993). Officer Oleson's testimony that Terrill failed to signal
his turn was not contradicted at trial. Thus, the defendants were
properly stopped for turning without signaling.
When a police officer stops a vehicle for a minor traffic
violation, the officer may briefly detain the driver to request a
valid driver's license. People v. Koutsakis, 272 Ill. App. 3d 159,
163, 649 N.E.2d 605, 608 (1995). Also, in some situations, the
police officer may conduct a speedy warrant check. Koutsakis, 272
Ill. App. 3d at 163, 649 N.E.2d at 608. If no further suspicion is
aroused in the officer following these initial inquiries, the
traffic stop may go no further and the individuals involved should
no longer be detained. Koutsakis, 272 Ill. App. 3d at 163, 649 N.E.2d at 608; see also People v. Sinclair, 281 Ill. App. 3d 131,
138, 666 N.E.2d 1221, 1226 (1996).
However, where the officer's suspicion is aroused during these
initial inquiries, further detention may be warranted. United
States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996); People v.
Smith, 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943 (1991). In
deciding whether reasonable suspicion exists to justify the
detention, we must consider the totality of the circumstances or
the "whole picture" in each case. People v. Anaya, 279 Ill. App.
3d 940, 945-46, 665 N.E.2d 525, 529 (1996), citing United States v.
Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585
(1989). Even where there may be an innocent explanation for each
individual factor considered separately, the factors viewed in
combination may constitute enough reasonable suspicion to warrant
further detention. Finke, 85 F.3d at 1280.
Here, in this case, Officer Oleson asked Terrill for his
driver's license and observed a card decorated with a marijuana
leaf in Terrill's wallet. Also, Terrill appeared nervous and was
perspiring. Based upon these facts, Officer Oleson was justified
in running a check of Terrill's criminal history. See Finke, 85 F.3d at 1280 (because of suspicious behavior and circumstances,
officers justified in performing criminal history check).
Officer Oleson then discovered that Terrill had a prior
conviction of a drug offense. When the officer returned to the
vehicle he observed that the ashtray, which had been open, was now
closed. Further, the defendants told the officer that they were
traveling to a festival to advocate the legalization of hemp.
Based upon all of these facts, considered in combination, we
conclude that the officer was justified in detaining the defendants
for an additional two minutes until the canine unit arrived. See
Finke, 85 F.3d at 1282 (considering the suspicious circumstances
and the fact that the passenger had two previous drug convictions,
officers had sufficient reasonable suspicion to hold the defendants
four minutes until the dog arrived). We additionally note there is
nothing in the record to show that the defendants objected to this
short, two-minute detention or that the officer used any kind of
coercion to compel the defendants to stay.
After the dog alerted, Officer Oleson had probable cause to
search the vehicle. See Finke, 85 F.3d at 1282 (when dog alerted,
reasonable suspicion blossomed into probable cause to search);
United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994)
(dog's identification provides probable cause that drugs are
present); Koutsakis, 272 Ill. App. 3d at 163, 649 N.E.2d at 608 (an
alert by a trained dog may constitute probable cause for a search).
Moreover, finding items of drug paraphernalia provides the police
with sufficient probable cause to search the vehicle for concealed
drugs. People v. Schrems, 224 Ill. App. 3d 988, 998, 586 N.E.2d 1337, 1345 (1992). As a consequence, after the police found drug
paraphernalia in the vehicle's trunk, they had probable cause to
search the remainder of the vehicle.
Based upon the undisputed facts in this case, we conclude that
the stop and detention of the vehicle were justified. Also, we
find the search was proper because it was based upon probable
cause.
II. Trial Proceedings
A. Jurisdiction
The defendants claim the circuit court of Illinois lacks
jurisdiction in this case because it is not a court authorized by
Article III of the United States Constitution. U.S. Const., art.
III. Also, they note that only Article III courts have
jurisdiction over controversies between a state and a sovereign.
The defendants contend they are sovereigns, and, because the State
of Illinois is the opposing party, this case must be adjudicated by
an Article III court.
The defendants cite no authority for their contention that an
ordinary citizen is a "sovereign." Furthermore, our research
reveals no such authority. Consequently, we conclude that the
defendants are not sovereigns and are not entitled to have their
case heard by an Article III court.
B. Grand Jury Indictment
The defendants claim they were entitled to be indicted by a
grand jury. However, it is well-settled law that the fifth
amendment constitutional requirement of a grand jury indictment is
not applicable to state criminal proceedings. People v. Redmond,
67 Ill. 2d 242, 246, 367 N.E.2d 703, 705 (1977). Accordingly, the
defendants had no right to be indicted by a grand jury.
C. Right to Counsel
The defendants argue that they were entitled to the appoint-
ment of a public defender to represent them in this case. However,
the sixth amendment right to counsel applies only in those cases
where the defendant is actually sentenced to imprisonment. Scott
v. Illinois, 440 U.S. 367, 373-4, 59 L. Ed. 2d 383, 388-9, 99 S. Ct. 1158, 1162 (1979). Because the prosecutor waived any jail
sentence for the defendants, they were not entitled to the
appointment of counsel at the State's expense.
D. Continuance
Next, the defendants maintain they were prejudiced in
preparing for trial because the trial court denied their request
for a continuance. Again, from our review of the record, we
disagree.
The granting of a continuance rests within the sound
discretion of the trial court, and that court's determination will
not be reversed unless there has been an abuse of discretion.
People v. Cobb, 97 Ill. 2d 465, 477, 455 N.E.2d 31, 36 (1983).
Before it can be held that a motion for continuance based upon a
lack of preparedness was improperly denied, it must appear from the
record that the refusal prejudiced the defendant. People v.
Wilson, 29 Ill. 2d 82, 92, 193 N.E.2d 449, 454 (1963).
It is abundantly clear from the record that the defendants
sought a continuance only to gain time so they could file
additional motions to relitigate on the very issues the trial court
had previously ruled upon. It is also clear from our review of the
record that the defendants were not conducting any investigation
which would exculpate them at trial. Indeed, their defense was
solely based on their personal opinion that the possession of
cannabis should not be illegal. For these reasons, we find the
trial court did not abuse its discretion in denying the defendants'
request for a continuance.
E. Jury Instructions
The defendants' final contention is that the trial court erred
in refusing to give various instructions they tendered at trial.
A trial judge's decision to reject non-pattern jury
instructions is not an abuse of discretion when the instructions
the court has given the jury adequately cover the issues in the
case. People v. Garcia, 165 Ill. 2d 409, 432, 651 N.E.2d 100, 111
(1995). The law is well settled that argumentative instructions
should not be given by the trial court. See People v. Yutt, 231
Ill. App. 3d 718, 724, 597 N.E.2d 208, 212 (1992). From our
review, we find the defendants' instructions to be argumentative.
Moreover, the pattern instructions given by the court adequately
informed the jury of the rules of law governing their
deliberations. Accordingly, we find no error in the trial court's
refusal to give the defendant's non-pattern jury instructions.
III. Reasonable Doubt
The next issue raised by the defendants is whether they were
proved guilty beyond a reasonable doubt. They contend that the
State failed: (1) to prove the "corpus delicti" of the crime; (2)
to prove they intended to possess drug paraphernalia or cannabis;
and (3) to present any reliable witnesses.
In assessing whether the defendant has been proven guilty
beyond a reasonable doubt, the relevant question is whether,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276
(1985). A reviewing court will not reverse a conviction unless the
evidence is so improbable, unreasonable or unsatisfactory as to
raise a reasonable doubt concerning the defendant's guilt. People
v. Singletary, 237 Ill. App. 3d 503, 506, 604 N.E.2d 1009, 1012
(1992).
A person commits unlawful possession of drug paraphernalia
when he knowingly possesses an item of drug paraphernalia with the
intent to use it in ingesting, inhaling or otherwise introducing
cannabis into the human body. 720 ILCS 600/3.5(a) (West 1994). In
determining whether the defendant intended to use the
paraphernalia, the trier of fact may consider whether the cannabis
was found in the proximity of the paraphernalia. 720 ILCS
600/3.5(b) (West 1994). A person commits unlawful possession of
cannabis when he knowingly possesses any substance containing
cannabis. 720 ILCS 550/4 (West 1994).
From our careful review of the record, we find the evidence
was sufficient to prove the defendants guilty beyond a reasonable
doubt. The defendants admitted they were traveling to a festival
to advocate the legalization of hemp. Also, Terrill carried a
picture of a marijuana leaf in his wallet. Moreover, when Officer
Oleson went to his squad car to run a check on Terrill's license,
the defendants closed the vehicle's ashtray. A search revealed
that the trunk of the car was filled with pipes used to smoke
marijuana, as well as other products derived from the hemp plant.
Based on these facts, the jury could reasonably have concluded that
the defendants knew they possessed drug paraphernalia and intended
to use the paraphernalia to ingest cannabis. Also, from this
evidence, the jury could have easily concluded that the defendants
knew they possessed cannabis.
Contrary to the defendants' assertion, the State did prove the
"corpus delicti," i.e., that a crime had been committed. See
Black's Law Dictionary 344 (6th ed. 1990). Possession of drug
paraphernalia and cannabis is against the laws of the State of
Illinois. The prosecutor in this case proved that the defendants
possessed these items. Additionally, he proved the proper mental
state for the offense by proving the defendants knew they possessed
the cannabis and the paraphernalia. See 720 ILCS 5/4--4, 4--5,
550/4, 600/3.5(a) (West 1994).
Finally, it is well-settled law that a court of review may not
substitute its judgment for that of the trier of fact concerning
the weight, credibility or conflicting nature of the evidence. See
People v. Sanchez, 115 Ill. 2d 238, 260-1, 503 N.E.2d 277, 284
(1986). It is clear from the record that the jury found the
testimony of the police officers was reliable and worthy of belief.
A court of review should not disagree with the trier of fact's
determination on issues of credibility.
After reviewing the record, we find the defendants were proven
guilty beyond a reasonable doubt.
IV. Other Issues
The defendants have raised numerous other issues regarding the
conduct of their trial. However, from our review, we find that the
defendants have waived these claims on appeal because they failed
to support them with coherent legal arguments. See Spinelli v.
Immanuel Lutheran Evangelical Congregation, 118 Ill. 2d 389, 401,
515 N.E.2d 1222, 1227 (1987).
For the reasons stated, we affirm the judgment of the circuit
court of Henry County.
Affirmed.
SLATER, J., concurs.
HOLDRIDGE, J., dissents
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. I would find that Officer Oleson did
not have probable cause to search defendants' vehicle subsequent to
the traffic stop and I would reverse the conviction on that basis.
I agree that under Ornelas v. United States, 517 U.S. ___, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996), a de novo standard of review
should be applied to issues involving reasonable suspicion to stop
a vehicle and probable cause to conduct a search. See, People v.
Kidd, No. 76490 (Ill. Supreme Court, December 19, 1996). However,
even under a manifest weight of the evidence standard of review, I
would hold that probable cause to search the vehicle was lacking.
Warrantless searches are presumptively unreasonable unless
certain limited exceptions apply. People v. Rinaldo, 80 Ill. App.
3d 433, 434 (1980). Prior to the search of a car, the police must
obtain a search warrant unless the circumstances fall within an
exception to the warrant requirement such as probable cause.
United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 583-84,
102 S. Ct. 2157, 2164-65 (1982).
To establish probable cause to search an automobile, it must
be shown that the totality of the facts and circumstances known to
the officer at the time of the search would justify a reasonable
person in believing that contraband was present in the automobile.
People v. Smith, 95 Ill. 2d 412, 419 (1983). "Stopping a vehicle
for a minor traffic violation does not, by itself, justify a search
of the detainee's person or vehicle. The officer must reasonably
believe that he is confronting a situation more serious than a
routine traffic violation to do so." People v. Penny, 188 Ill.
App. 3d 499, 502 (1989).
In this matter, I believe that a review of the record shows
that Officer Oleson lacked probable cause to detain the vehicle
after issuing the verbal warning, checking the driver's license and
running the warrant check. The facts that one defendant had a
business card with a marijuana leaf embossed on it, and that the
defendants told the officer that they were in route to a festival
advocating the legalization of hemp are both lawful activities
protected by the First Amendment to the United States Constitution.
I do not believe that these lawful activities can constitute
probable cause.
These facts, combined with the officer's observation of the
ash tray being open the first time he saw it, and closed the next,
amount to mere suspicion. "Mere suspicion or curiosity is not
enough to justify a search, and an officer's authority to in-
vestigate a traffic violation may not serve as a subterfuge to
obtain other evidence based on suspicion." Penny, 188 Ill. App. 3d
at 502.
Likewise, the officer's observation of Terrill's nervousness
and perspiration cannot support a finding of probable cause.
Merely appearing nervous at the approach of a police officer is not
sufficiently suspicious conduct to justify probable cause. People
v. Blake, 268 Ill. App. 3d 737, 741 (1995).
Finally, the fact that the trained dog "alerted" to a possible
presence of a controlled substance after the defendants' vehicle
was detained cannot support a finding that the officer had probable
cause to detain the vehicle for the search. The existence of
probable cause to detain and search must be based upon the totality
of the circumstances known to the officer at the time of the
search. The critical time period in this case is the period of
time from the initial stop of the vehicle until the dog's alert.
People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995). If there
was no basis for a search the vehicle prior to the dog's alert,
the defendants were not lawfully detained at the time of the alert,
and the search was unlawful. Koutsakis, 272 Ill. App. 3d at 163.
I would hold that Officer Oleson did not have probable cause
to search the defendants' vehicle and would reverse the trial court
on that basis. Since the People could not prevail on remand
without the evidence that I would find should have been suppressed,
I would reverse defendants' convictions outright. People v. Woods,
241 Ill. App. 3d 285, 290 (1993).
(Consolidated with No. 3--96--0365)
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 14th Judicial Circuit
) Henry County, Illinois
Plaintiff-Appellee, )
)
v. ) Nos. 95--CM--377, 95--CM--354
)
ROGER L. EASLEY and BRIAN J. )
TERRILL, ) Honorable
) Jay Hanson,
Defendants-Appellants. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
The defendants, Roger L. Easley and Brian J. Terrill, were
convicted of unlawful possession of drug paraphernalia (720 ILCS
600/3.5(a) (West 1994)) and unlawful possession of cannabis (720
ILCS 550/4(c) (West 1994)). Easley was fined $1,250, and Terrill's
fine was $1,750. On appeal, the defendants challenge the stop and
search of their vehicle, the conduct of the trial and the
sufficiency of the evidence. After carefully reviewing the record,
we affirm.
FACTS
On May 12, 1995, Officer Shane Oleson of the Geneseo police
department (the officer) saw a white 1985 Toyota vehicle with no
rear registration light make an unsignaled right turn. The car
pulled into a parking lot, and the officer stopped his squad car
behind it. When the officer approached the car, he found the
defendants inside. The officer then asked the driver, Terrill, for
his driver's license. When Terrill opened his wallet, the officer
saw a business card decorated with a picture of a marijuana leaf
inside the wallet. Terrill immediately tried to hide the card from
the officer's view. The officer observed that Terrill appeared
nervous and was perspiring, and the vehicle's ashtray was open.
The officer returned to his squad car to run Terrill's license
through the computer. Because the officer saw the picture of the
marijuana leaf, he ran a check of Terrill's criminal history.
During this time, the defendants remained in the car. The
officer's investigation revealed that Terrill's license was valid,
and he had a prior conviction for a drug offense. When the officer
returned to the defendants' car, he noted that the ashtray was
closed. The officer gave Terrill a verbal warning concerning the
rear registration light and the need to signal his turns.
At this time, a conversation took place during which the
defendants asked how much farther they would have to drive to reach
Chicago. When the officer asked why they were going to Chicago,
the defendants said they were going to a festival to advocate the
legalization of hemp. The officer told the defendants that he was
concerned, based upon seeing the marijuana leaf picture and
Terrill's previous criminal history, that there might be illegal
drugs in the vehicle. The defendants denied carrying any illegal
substances. As a result of their response, the officer asked if he
could search the car. The defendants refused to give permission
for the officer to search the vehicle.
The officer informed the defendants that they were free to go.
However, he told them that he would detain the vehicle to give a
canine unit the chance to walk around the car to determine if drugs
were present. Approximately two minutes elapsed before the canine
unit arrived. The dog proceeded to alert when he reached the trunk
area of the car. The officer then searched the trunk of the
vehicle and found a large box of glass pipes ordinarily used to
smoke marijuana, another box of glass pipes with brass screens also
used to smoke marijuana, several products made from hemp, including
cookie dough mix, pancake mix, lip balm and sunblock, and various
items promoting the legalization of hemp, including bumper
stickers.
Based upon the possession of these items, the officer arrested
the defendants on a charge of unlawful possession of drug
paraphernalia. Following the arrest, the officer searched the
interior of the defendants' car and found 12« grams of marijuana
located inside a camcorder case on the front seat. Consequently,
the defendants were charged with unlawful possession of cannabis.
Prior to trial, the State waived the prospect of any
incarceration for the defendants if they were found guilty of the
various offenses. Based upon this waiver, the trial court denied
the defendants' request for appointment of the public defender.
The defendants filed numerous motions attacking the jurisdiction of
the court and the propriety of the officer's stop and search of the
vehicle. All of the defendants' motions were denied.
At trial, Officer Oleson testified about his observations of
the defendants on May 12, 1995, as well as their arrest and his
search of the vehicle. Two other officers of the Geneseo police
department testified on behalf of the State. Their testimony
corroborated Officer Oleson's testimony.
Following the presentation of the evidence, the defendants
tendered to the court several non-pattern IPI jury instructions.
The judge refused to give the jury these instructions.
After deliberating, the jury found the defendants guilty as
charged. This timely appeal followed.
ISSUES AND ANALYSIS
I. Stop and Search
The defendants first challenge the propriety of the stop and
search of their vehicle. Where, as here, there is no real question
regarding the facts, we conduct a de novo review of the trial
court's determination of reasonable suspicion to stop a vehicle and
probable cause to conduct a search. Ornelas v. United States, ___
U.S. ___, 134 L. Ed. 2d 911, 920-21, 116 S. Ct. 1657 (1996); see
also People v. Kidd, 175 Ill. 2d 1, 25-26, 675 N.E.2d 910, 922
(1996). Following our de novo review, we conclude that the trial
court correctly found that the stop and search were proper.
Generally, a traffic violation provides a sufficient basis for
a traffic stop. People v. Hood, 265 Ill. App. 3d 232, 241, 638 N.E.2d 264, 271 (1994). Accordingly, a police officer may properly
stop a motor vehicle when the driver turns without signaling.
People v. Shepherd, 242 Ill. App. 3d 24, 29, 610 N.E.2d 163, 166
(1993). Officer Oleson's testimony that Terrill failed to signal
his turn was not contradicted at trial. Thus, the defendants were
properly stopped for turning without signaling.
When a police officer stops a vehicle for a minor traffic
violation, the officer may briefly detain the driver to request a
valid driver's license. People v. Koutsakis, 272 Ill. App. 3d 159,
163, 649 N.E.2d 605, 608 (1995). Also, in some situations, the
police officer may conduct a speedy warrant check. Koutsakis, 272
Ill. App. 3d at 163, 649 N.E.2d at 608. If no further suspicion is
aroused in the officer following these initial inquiries, the
traffic stop may go no further and the individuals involved should
no longer be detained. Koutsakis, 272 Ill. App. 3d at 163, 649 N.E.2d at 608; see also People v. Sinclair, 281 Ill. App. 3d 131,
138, 666 N.E.2d 1221, 1226 (1996).
However, where the officer's suspicion is aroused during these
initial inquiries, further detention may be warranted. United
States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996); People v.
Smith, 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943 (1991). In
deciding whether reasonable suspicion exists to justify the
detention, we must consider the totality of the circumstances or
the "whole picture" in each case. People v. Anaya, 279 Ill. App.
3d 940, 945-46, 665 N.E.2d 525, 529 (1996), citing United States v.
Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581, 1585
(1989). Even where there may be an innocent explanation for each
individual factor considered separately, the factors viewed in
combination may constitute enough reasonable suspicion to warrant
further detention. Finke, 85 F.3d at 1280.
Here, in this case, Officer Oleson asked Terrill for his
driver's license and observed a card decorated with a marijuana
leaf in Terrill's wallet. Also, Terrill appeared nervous and was
perspiring. Based upon these facts, Officer Oleson was justified
in running a check of Terrill's criminal history. See Finke, 85 F.3d at 1280 (because of suspicious behavior and circumstances,
officers justified in performing criminal history check).
Officer Oleson then discovered that Terrill had a prior
conviction of a drug offense. When the officer returned to the
vehicle he observed that the ashtray, which had been open, was now
closed. Further, the defendants told the officer that they were
traveling to a festival to advocate the legalization of hemp.
Based upon all of these facts, considered in combination, we
conclude that the officer was justified in detaining the defendants
for an additional two minutes until the canine unit arrived. See
Finke, 85 F.3d at 1282 (considering the suspicious circumstances
and the fact that the passenger had two previous drug convictions,
officers had sufficient reasonable suspicion to hold the defendants
four minutes until the dog arrived). We additionally note there is
nothing in the record to show that the defendants objected to this
short, two-minute detention or that the officer used any kind of
coercion to compel the defendants to stay.
After the dog alerted, Officer Oleson had probable cause to
search the vehicle. See Finke, 85 F.3d at 1282 (when dog alerted,
reasonable suspicion blossomed into probable cause to search);
United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994)
(dog's identification provides probable cause that drugs are
present); Koutsakis, 272 Ill. App. 3d at 163, 649 N.E.2d at 608 (an
alert by a trained dog may constitute probable cause for a search).
Moreover, finding items of drug paraphernalia provides the police
with sufficient probable cause to search the vehicle for concealed
drugs. People v. Schrems, 224 Ill. App. 3d 988, 998, 586 N.E.2d 1337, 1345 (1992). As a consequence, after the police found drug
paraphernalia in the vehicle's trunk, they had probable cause to
search the remainder of the vehicle.
Based upon the undisputed facts in this case, we conclude that
the stop and detention of the vehicle were justified. Also, we
find the search was proper because it was based upon probable
cause.
II. Trial Proceedings
A. Jurisdiction
The defendants claim the circuit court of Illinois lacks
jurisdiction in this case because it is not a court authorized by
Article III of the United States Constitution. U.S. Const., art.
III. Also, they note that only Article III courts have
jurisdiction over controversies between a state and a sovereign.
The defendants contend they are sovereigns, and, because the State
of Illinois is the opposing party, this case must be adjudicated by
an Article III court.
The defendants cite no authority for their contention that an
ordinary citizen is a "sovereign." Furthermore, our research
reveals no such authority. Consequently, we conclude that the
defendants are not sovereigns and are not entitled to have their
case heard by an Article III court.
B. Grand Jury Indictment
The defendants claim they were entitled to be indicted by a
grand jury. However, it is well-settled law that the fifth
amendment constitutional requirement of a grand jury indictment is
not applicable to state criminal proceedings. People v. Redmond,
67 Ill. 2d 242, 246, 367 N.E.2d 703, 705 (1977). Accordingly, the
defendants had no right to be indicted by a grand jury.
C. Right to Counsel
The defendants argue that they were entitled to the appoint-
ment of a public defender to represent them in this case. However,
the sixth amendment right to counsel applies only in those cases
where the defendant is actually sentenced to imprisonment. Scott
v. Illinois, 440 U.S. 367, 373-4, 59 L. Ed. 2d 383, 388-9, 99 S. Ct. 1158, 1162 (1979). Because the prosecutor waived any jail
sentence for the defendants, they were not entitled to the
appointment of counsel at the State's expense.
D. Continuance
Next, the defendants maintain they were prejudiced in
preparing for trial because the trial court denied their request
for a continuance. Again, from our review of the record, we
disagree.
The granting of a continuance rests within the sound
discretion of the trial court, and that court's determination will
not be reversed unless there has been an abuse of discretion.
People v. Cobb, 97 Ill. 2d 465, 477, 455 N.E.2d 31, 36 (1983).
Before it can be held that a motion for continuance based upon a
lack of preparedness was improperly denied, it must appear from the
record that the refusal prejudiced the defendant. People v.
Wilson, 29 Ill. 2d 82, 92, 193 N.E.2d 449, 454 (1963).
It is abundantly clear from the record that the defendants
sought a continuance only to gain time so they could file
additional motions to relitigate on the very issues the trial court
had previously ruled upon. It is also clear from our review of the
record that the defendants were not conducting any investigation
which would exculpate them at trial. Indeed, their defense was
solely based on their personal opinion that the possession of
cannabis should not be illegal. For these reasons, we find the
trial court did not abuse its discretion in denying the defendants'
request for a continuance.
E. Jury Instructions
The defendants' final contention is that the trial court erred
in refusing to give various instructions they tendered at trial.
A trial judge's decision to reject non-pattern jury
instructions is not an abuse of discretion when the instructions
the court has given the jury adequately cover the issues in the
case. People v. Garcia, 165 Ill. 2d 409, 432, 651 N.E.2d 100, 111
(1995). The law is well settled that argumentative instructions
should not be given by the trial court. See People v. Yutt, 231
Ill. App. 3d 718, 724, 597 N.E.2d 208, 212 (1992). From our
review, we find the defendants' instructions to be argumentative.
Moreover, the pattern instructions given by the court adequately
informed the jury of the rules of law governing their
deliberations. Accordingly, we find no error in the trial court's
refusal to give the defendant's non-pattern jury instructions.
III. Reasonable Doubt
The next issue raised by the defendants is whether they were
proved guilty beyond a reasonable doubt. They contend that the
State failed: (1) to prove the "corpus delicti" of the crime; (2)
to prove they intended to possess drug paraphernalia or cannabis;
and (3) to present any reliable witnesses.
In assessing whether the defendant has been proven guilty
beyond a reasonable doubt, the relevant question is whether,
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.
People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276
(1985). A reviewing court will not reverse a conviction unless the
evidence is so improbable, unreasonable or unsatisfactory as to
raise a reasonable doubt concerning the defendant's guilt. People
v. Singletary, 237 Ill. App. 3d 503, 506, 604 N.E.2d 1009, 1012
(1992).
A person commits unlawful possession of drug paraphernalia
when he knowingly possesses an item of drug paraphernalia with the
intent to use it in ingesting, inhaling or otherwise introducing
cannabis into the human body. 720 ILCS 600/3.5(a) (West 1994). In
determining whether the defendant intended to use the
paraphernalia, the trier of fact may consider whether the cannabis
was found in the proximity of the paraphernalia. 720 ILCS
600/3.5(b) (West 1994). A person commits unlawful possession of
cannabis when he knowingly possesses any substance containing
cannabis. 720 ILCS 550/4 (West 1994).
From our careful review of the record, we find the evidence
was sufficient to prove the defendants guilty beyond a reasonable
doubt. The defendants admitted they were traveling to a festival
to advocate the legalization of hemp. Also, Terrill carried a
picture of a marijuana leaf in his wallet. Moreover, when Officer
Oleson went to his squad car to run a check on Terrill's license,
the defendants closed the vehicle's ashtray. A search revealed
that the trunk of the car was filled with pipes used to smoke
marijuana, as well as other products derived from the hemp plant.
Based on these facts, the jury could reasonably have concluded that
the defendants knew they possessed drug paraphernalia and intended
to use the paraphernalia to ingest cannabis. Also, from this
evidence, the jury could have easily concluded that the defendants
knew they possessed cannabis.
Contrary to the defendants' assertion, the State did prove the
"corpus delicti," i.e., that a crime had been committed. See
Black's Law Dictionary 344 (6th ed. 1990). Possession of drug
paraphernalia and cannabis is against the laws of the State of
Illinois. The prosecutor in this case proved that the defendants
possessed these items. Additionally, he proved the proper mental
state for the offense by proving the defendants knew they possessed
the cannabis and the paraphernalia. See 720 ILCS 5/4--4, 4--5,
550/4, 600/3.5(a) (West 1994).
Finally, it is well-settled law that a court of review may not
substitute its judgment for that of the trier of fact concerning
the weight, credibility or conflicting nature of the evidence. See
People v. Sanchez, 115 Ill. 2d 238, 260-1, 503 N.E.2d 277, 284
(1986). It is clear from the record that the jury found the
testimony of the police officers was reliable and worthy of belief.
A court of review should not disagree with the trier of fact's
determination on issues of credibility.
After reviewing the record, we find the defendants were proven
guilty beyond a reasonable doubt.
IV. Other Issues
The defendants have raised numerous other issues regarding the
conduct of their trial. However, from our review, we find that the
defendants have waived these claims on appeal because they failed
to support them with coherent legal arguments. See Spinelli v.
Immanuel Lutheran Evangelical Congregation, 118 Ill. 2d 389, 401,
515 N.E.2d 1222, 1227 (1987).
For the reasons stated, we affirm the judgment of the circuit
court of Henry County.
Affirmed.
SLATER, J., concurs.
HOLDRIDGE, J., dissents
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. I would find that Officer Oleson did
not have probable cause to search defendants' vehicle subsequent to
the traffic stop and I would reverse the conviction on that basis.
I agree that under Ornelas v. United States, 517 U.S. ___, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996), a de novo standard of review
should be applied to issues involving reasonable suspicion to stop
a vehicle and probable cause to conduct a search. See, People v.
Kidd, No. 76490 (Ill. Supreme Court, December 19, 1996). However,
even under a manifest weight of the evidence standard of review, I
would hold that probable cause to search the vehicle was lacking.
Warrantless searches are presumptively unreasonable unless
certain limited exceptions apply. People v. Rinaldo, 80 Ill. App.
3d 433, 434 (1980). Prior to the search of a car, the police must
obtain a search warrant unless the circumstances fall within an
exception to the warrant requirement such as probable cause.
United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572, 583-84,
102 S. Ct. 2157, 2164-65 (1982).
To establish probable cause to search an automobile, it must
be shown that the totality of the facts and circumstances known to
the officer at the time of the search would justify a reasonable
person in believing that contraband was present in the automobile.
People v. Smith, 95 Ill. 2d 412, 419 (1983). "Stopping a vehicle
for a minor traffic violation does not, by itself, justify a search
of the detainee's person or vehicle. The officer must reasonably
believe that he is confronting a situation more serious than a
routine traffic violation to do so." People v. Penny, 188 Ill.
App. 3d 499, 502 (1989).
In this matter, I believe that a review of the record shows
that Officer Oleson lacked probable cause to detain the vehicle
after issuing the verbal warning, checking the driver's license and
running the warrant check. The facts that one defendant had a
business card with a marijuana leaf embossed on it, and that the
defendants told the officer that they were in route to a festival
advocating the legalization of hemp are both lawful activities
protected by the First Amendment to the United States Constitution.
I do not believe that these lawful activities can constitute
probable cause.
These facts, combined with the officer's observation of the
ash tray being open the first time he saw it, and closed the next,
amount to mere suspicion. "Mere suspicion or curiosity is not
enough to justify a search, and an officer's authority to in-
vestigate a traffic violation may not serve as a subterfuge to
obtain other evidence based on suspicion." Penny, 188 Ill. App. 3d
at 502.
Likewise, the officer's observation of Terrill's nervousness
and perspiration cannot support a finding of probable cause.
Merely appearing nervous at the approach of a police officer is not
sufficiently suspicious conduct to justify probable cause. People
v. Blake, 268 Ill. App. 3d 737, 741 (1995).
Finally, the fact that the trained dog "alerted" to a possible
presence of a controlled substance after the defendants' vehicle
was detained cannot support a finding that the officer had probable
cause to detain the vehicle for the search. The existence of
probable cause to detain and search must be based upon the totality
of the circumstances known to the officer at the time of the
search. The critical time period in this case is the period of
time from the initial stop of the vehicle until the dog's alert.
People v. Koutsakis, 272 Ill. App. 3d 159, 163 (1995). If there
was no basis for a search the vehicle prior to the dog's alert,
the defendants were not lawfully detained at the time of the alert,
and the search was unlawful. Koutsakis, 272 Ill. App. 3d at 163.
I would hold that Officer Oleson did not have probable cause
to search the defendants' vehicle and would reverse the trial court
on that basis. Since the People could not prevail on remand
without the evidence that I would find should have been suppressed,
I would reverse defendants' convictions outright. People v. Woods,
241 Ill. App. 3d 285, 290 (1993).
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