People v. Berry

2020 IL App (4th) 180048-U

• Court: Appellate Court of Illinois
• Decided: June 8, 2020
• Docket: 4-18-0048
• Status: Unpublished

Opinion

NOTICE 2020 IL App (4th) 180048-U This order was filed under Supreme FILED Court Rule 23 and may not be cited NO. 4-18-0048 June 8, 2020 as precedent by any party except in Carla Bender the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County ROBYN R. BERRY, ) No. 15CM362 Defendant-Appellant. ) ) Honorable ) Mark A. Fellheimer, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER ¶1 Held: The trial court did not err in denying defendant’s motion to suppress her statement to the police officer admitting the contraband found during a search of her vehicle was hers when she testified at trial admitting the same.

¶2 In an October 2017 bench trial, defendant was convicted of unlawful use of a

weapon and unlawful possession of a weapon without a valid Firearm Owner’s Identification

(FOID) card. The weapon, a stun gun or taser, was found in defendant’s vehicle during a search at

the scene of a traffic stop. In this direct appeal, she challenges her convictions, claiming (1) the

statute under which she was convicted of unlawful use of a weapon had been declared facially

unconstitutional, and (2) the trial court erred in denying her motion to suppress her admission that

the stun gun was hers. After our review of the issues presented, we vacate defendant’s conviction

for unlawful use of a weapon and affirm her conviction for unlawful possession of a weapon

without a valid FOID card. ¶3 I. BACKGROUND

¶4 On November 24, 2014, as a result of a traffic stop, police searched defendant’s

vehicle and discovered a taser or stun gun in the center console. On September 21, 2015, the State

charged defendant with two counts: count I alleged she committed the offense of unlawful use of

a weapon (720 ILCS 5/24-1(a)(4) (West 2014)) when she knowingly carried or possessed in her

vehicle a pink stun gun at a time when she was not upon her own abode, legal dwelling, or fixed

place of business, nor upon another’s land or legal dwelling as an invitee; and count II alleged she

committed the offense of unlawful possession of a firearm without a requisite FOID card (430

ILCS 65/2(a)(1) (West 2014)) when she knowingly possessed a stun gun without having in her

possession a valid FOID card previously issued in her name by the Department of State Police

under the provisions of the Firearm Owners Identification Card Act.

¶5 According to the officer’s report, the dashcam video recording of the traffic stop,

and the testimony presented at the hearing on the motion to suppress and the bench trial, the

charges stemmed from the following. At approximately 10 p.m., on southbound Interstate 55,

Illinois State Police Trooper Eric Greenlee observed defendant’s vehicle exceeding the speed limit

at 87 miles per hour. Trooper Greenlee pulled out and began to follow defendant’s vehicle.

Because defendant slowed down, Greenlee decided he was not going to conduct a traffic stop.

However, when he passed defendant, he noticed her high beams were on. This was the third

violation he observed, as her vehicle was also travelling in the left lane. He decided to effectuate

a traffic stop, which was audio and video recorded by the officer’s dashcam.

¶6 Greenlee approached the passenger’s side window and noticed the presence of a

front seat passenger, Dontae Olivier, and an odor of alcohol and cannabis emanating from the

vehicle. Olivier said he had been drinking but both passengers denied the presence of cannabis.

-2- The trooper asked if a dog would alert on anything during a search of the vehicle. The passengers

said no.

¶7 Greenlee ran a LEADS search and discovered Olivier had an outstanding warrant.

Greenlee arrested Olivier and gave defendant directions to the jail. He told defendant he would be

issuing her a few citations and asked her to “sit tight.”

¶8 Illinois State Trooper Josh Vanausdoll arrived to assist Greenlee with the search of

the vehicle incident to Olivier’s arrest and on the suspicion of the presence of cannabis. Officers

found a pink stun gun in a black Velcroed sheath in the center console of the vehicle; no other

contraband was found. Greenlee’s report states: “I asked [defendant] about the stun gun; [she]

stated it was received upon completion of a self-defense class.” Greenlee reported defendant did

not have a valid FOID card. He stated he arrested her for aggravated unlawful use of a weapon.

She was handcuffed and placed in the front seat of the patrol car. He did not mention in his report

whether defendant was Mirandized.

¶9 On February 23, 2016, defendant filed a motion to suppress “all items seized,”

claiming the search and seizure violated the fourth amendment to the United States Constitution

(U.S. Const., amend. IV), which applies to the states under the fourteenth amendment (U.S. Const.,

amend. XIV), in that, inter alia, (1) the police conducted a warrantless search of the vehicle, which

yielded defendant’s pink stun gun, (2) defendant was unreasonably and unjustifiably seized in

violation of Terry v. Ohio, 392 U.S. 1, 22 (1968), and (3) the officers did not have probable cause

or consent to conduct the search.

¶ 10 The trial court conducted a hearing on defendant’s motion to suppress on May 19,

2016. We do not have a report of proceedings or a transcript from the hearing, but the parties have

submitted an agreed bystander’s report. According to this report, Greenlee testified he “informed

-3- the defendant that he smelled raw and burnt cannabis inside her vehicle and stated that he was

going to perform a search.” After finding the stun gun, Greenlee said he “confronted the defendant

about the stun gun and determined that defendant did not have a FOID card.” Greenlee could not

get the stun gun to operate at the scene, but he was able to later charge it at headquarters and found

it emitted a charge.

¶ 11 The May 19, 2016, docket entry indicates (1) Greenlee testified for defendant,

(2) the recorded dashcam video was admitted into evidence by stipulation, (3) the State presented

no evidence, and (4) the court took the matter under advisement.

¶ 12 On May 31, 2016, the parties convened for the trial court’s ruling on defendant’s

motion to suppress. Again, we do not have a report of proceedings or a transcript of the hearing,

but the parties have provided an agreed bystander’s report. The bystander’s report indicates the

trial court first summarized Greenlee’s testimony. Part of that summary included the basis for

Greenlee’s search of the vehicle: “he performed a search based on the odor of cannabis emitting.”

After finding the stun gun in the center console, Greenlee “placed the defendant under arrest.”

¶ 13 According to the bystander’s report, the trial court denied defendant’s motion to

suppress, finding as follows:

“[T]he trooper had a reasonable, articulable suspicion to initially pull the vehicle

over and perform a Terry stop and thereafter, a search of the vehicle based on the

odor of cannabis emanating from the vehicle. The trooper did not prolong the stop

based on the time it took to process the passenger on a warrant and that the cannabis

odor was present from inception. The entire encounter was captured on audio/video

recording.”

-4- ¶ 14 At the bench trial on October 24, 2017, Greenlee testified as to the events as

summarized above. During his testimony, the prosecutor asked if he recalled “if the defendant

made any statements to [him] regarding whose stun gun that was.” Greenlee said yes. Defense

counsel objected and asked to voir dire Greenlee on a “possible Miranda issue.” During this

examination, Greenlee was asked about his conversation with defendant regarding ownership of

the stun gun. Greenlee could not recall whether defendant was in his squad car or the assisting

squad car at the time, but he believed she was “in one of those two places.” He could not recall if

she was in the front or back seat. He said defendant had not been arrested at that point. When asked

if defendant was in custody, Greenlee stated he did not believe she was “in cuffs.” The following

exchange occurred:

“Q. And was she free to leave?

A. She was certainly detained.

Q. And at that point she was not free to leave, and in your view she had been

detained?

A. She was detained, yes.”

¶ 15 Defense counsel claimed defendant should have been Mirandized since she was

detained. The trial court explained the question was not whether defendant was detained but

whether she was subject to custodial interrogation. The prosecutor argued the situation did not rise

to the level of custodial interrogation. The court stated, “[I]t is also clear that this would qualify as

interrogation. Certainly, there [are] questions being asked of somebody in relation to this alleged

stun gun.” However, “under the limited facts,” the court “can’t find that it [was] custodial.” The

court overruled defendant’s objection to the testimony but indicated it would revisit the issue if

-5- “things turn differently” with the presentation of evidence that defendant was “placed into

restraints.”

¶ 16 Greenlee’s trial testimony continued. He said he asked defendant whose stun gun

it was. He said defendant admitted it was hers; she got it in a self-defense class. The State rested.

¶ 17 Defendant testified she received the stun gun at a self-defense class a few years

prior. She had it in the bottom of her center console in her vehicle with other miscellaneous items.

The bottom of her console is accessed by raising the covers of two layers of storage trays. She

agreed with counsel’s characterization that it had “been rattling around in the bottom of this center

console” for two years. She had never charged the stun gun and had forgotten it was there. She

was not aware she was required to have a FOID card to possess it. She said she had never tested it

or used it on anyone.

¶ 18 Defendant asked to admit Greenlee’s dashcam video of the traffic stop. As part of

our review, this court reviewed the video and found it consistent with the parties’ representations

of the same.

¶ 19 In announcing its ruling after trial, the trial court indicated it had watched the dash

cam recording three times. After considering the evidence and arguments of counsel, the court

found defendant guilty of both counts.

¶ 20 In January 2018, the trial court conducted the sentencing hearing. The court first

considered defendant’s motion for a new trial, which claimed the State failed to sufficiently prove

defendant had access to the weapon. The court denied defendant’s motion and proceeded to

sentencing. The State presented no evidence in aggravation.

¶ 21 Defendant testified she obtained a finance degree from Bradley University but she

was not working in her field of study because it was “very difficult to find a job with a background,

-6- a criminal firearm background; no one will hire [her].” She was working in the financial area

before this case, but she now is employed as a home care aide for a terminally ill cancer patient.

She said this has created a financial hardship for her and her two children. She testified she has no

criminal history. She has since obtained her FOID card and concealed carry registration.

¶ 22 After considering defendant’s testimony, the recommendations of counsel, and

defendant’s statement of allocution, the trial court sentenced defendant to 12 months’ conditional

discharge on her conviction for unlawful use of a weapon (count I) and 12 months’ court

supervision on her conviction for unlawful possession of a firearm without a FOID card (count II).

¶ 23 This appeal followed.

¶ 24 II. ANALYSIS

¶ 25 Both parties agree, in light of our supreme court’s decision in People v. Webb, 2019

IL 122951, defendant’s conviction on count I for unlawful possession of a stun gun must be

vacated. In Webb, the supreme court ruled section 24-1(a)(4) of the Criminal Code of 2012

(Criminal Code) (720 ILCS 5/24-1(a)(4) (West 2014)), which prohibits the carriage or possession

of stun guns and tasers, was facially unconstitutional under the second amendment. Webb, 2019

IL 122951, ¶ 21. A conviction under a facially unconstitutional statute must be vacated. In re N.G.,

2018 IL 121939, ¶ 37. Accordingly, we agree with the parties and vacate defendant’s conviction

on count I for unlawful possession of a stun gun.

¶ 26 Defendant also claims the trial court erred in denying her motion to suppress

statements she made to the police when she was unreasonably detained and interrogated without

the officers advising her of Miranda warnings. Although typically a bifurcated standard of review

applies when reviewing a ruling on a motion to suppress, the only question before us here is a

question of law. See People v. Sadeq, 2018 IL App (4th) 160105, ¶ 49 (When reviewing a ruling

-7- on a motion to suppress, a trial court’s findings of fact are reviewed under a manifest-weight-of-

the-evidence standard, while the court’s conclusions of law are reviewed de novo.) Both sides

agree our standard of review in this case is de novo. Id.

¶ 27 Defendant filed a motion to suppress requesting that her statement—her admission

that the stun gun was hers—should have been precluded from trial because it was obtained as a

result of an illegal search and seizure. We disagree.

¶ 28 Defendant voluntarily testified at trial that the stun gun was indeed hers. The record

does not indicate she was coerced or compelled into so testifying. Greenlee’s testimony that

defendant told him it was her stun gun provided no new information to the trier of fact. Defendant

took the witness stand and testified she had received the stun gun in a self-defense class

approximately two years earlier. Her admission at trial nullified any claim that her same statement

to Greenlee was wrongfully obtained. As our supreme court stated, “[I]t generally has been held

that if a defendant takes the witness stand and admits in substance matters contained in a confession

or statement [s]he has given the police, this testimony will be considered to have waived or made

harmless any error that may have occurred in the admission of the confession or statement.” People

v. Auilar, 59 Ill. 2d 95, 100 (1974).

¶ 29 Further, even without her admission of ownership, the State could have sufficiently

proved defendant possessed the stun gun simply by proving it was found on defendant’s

“premises,” in a compartment in a vehicle driven, registered, and owned by defendant. See People

v. Whalen, 145 Ill. App. 3d 125, 129-30 (1986). If the defendant is driving a motor vehicle, one

may infer that she controls the vehicle and everything in it (People v. McNeely, 99 Ill. App. 3d

1021, 1024 (1981)), and if contraband was found in the vehicle, that fact alone will support a

further inference that the defendant knew of the contraband and constructively possessed it (People

-8- v. Milam, 224 Ill. App. 3d 642, 647 (1992)), absent other facts or circumstances creating reasonable

doubt (Whalen, 145 Ill. App. 3d at 129; People v. Chavez, 327 Ill. App. 3d 18, 26 (2001)).

Defendant presents no other facts or circumstances to create reasonable doubt.

¶ 30 For these reasons, defendant cannot demonstrate prejudicial error in the trial court’s

denial of her motion to suppress.

¶ 31 III. CONCLUSION

¶ 32 Consistent with our decision above, we vacate defendant’s conviction of unlawful

use of a weapon governed by section 24-1(a)(4) of the Criminal Code (720 ILCS 5/24-1(a)(4)

(West 2014)) and the corresponding sentence. We otherwise affirm the trial court’s judgment.

¶ 33 Affirmed in part and vacated in part.

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