People v. Davenport

910 N.E.2d 134, 392 Ill. App. 3d 19, 331 Ill. Dec. 61, 2009 Ill. App. LEXIS 319
CourtAppellate Court of Illinois
DecidedMay 29, 2009
Docket3-05-0812
StatusPublished
Cited by8 cases

This text of 910 N.E.2d 134 (People v. Davenport) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Davenport, 910 N.E.2d 134, 392 Ill. App. 3d 19, 331 Ill. Dec. 61, 2009 Ill. App. LEXIS 319 (Ill. Ct. App. 2009).

Opinions

JUSTICE CARTER

delivered the opinion of the court:

The defendant, Angelia K. Davenport, was charged with cannabis trafficking, unlawful possession of cannabis with intent to deliver, and unlawful possession of cannabis (720 ILCS 550/5.1(a), 5(g), 4(g) (West 2004)). She filed a pretrial motion to suppress evidence, which the circuit court denied. Following a jury trial, the defendant was found guilty as charged. After merging the lesser offenses with the Class X trafficking charge, the court sentenced the defendant to 12 years of imprisonment and imposed fines, costs, and fees. The defendant appealed, arguing that: (1) the court erroneously denied her motion to suppress; (2) the prosecutor impermissibly impeached her with her postarrest silence; (3) she is entitled to monetary credit for the time she spent in presentence incarceration; and (4) a $20 fee imposed for collection of a genetic marker specimen must be vacated. On direct appeal, this court affirmed the defendant’s conviction, modified her sentence in part, and vacated the $20 collection fee. People v. Davenport, No. 3—05—0812 (2007) (unpublished order under Supreme Court Rule 23).

In a supervisory order dated November 26, 2008, the supreme court directed us to vacate judgment and reconsider our decision in light of People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008). After reconsideration, we reverse and remand.

FACTS

At the suppression hearing, the State presented the testimony of Illinois State Trooper Clint Thulen and a video recording of his May 5, 2005, stop of a white Honda sports utility vehicle and his arrest of its occupants. The evidence established that at 11:15 a.m., Thulen, who drove an unmarked canine vehicle, pulled the Honda over. The Honda was bearing Colorado plates, and it was traveling eastbound along Interstate 80 near milepost 19 in Henry County. The Honda slowed considerably when it passed Thulen’s vehicle. Thulen said he clocked the Honda at 70 miles per hour in a 65-mile-per-hour zone.

Thulen approached the vehicle on the passenger side. The defendant, who was seated in the front passenger seat, opened the door and handed Thulen her mother’s driver’s license. She told Thulen that the vehicle belonged to her husband and indicated to Thulen that she was an owner of the vehicle. The defendant’s mother, Catherine Cagle, was the vehicle’s driver. A third individual, who was later identified as Jose Manuel Vasquez Rodriguez, occupied the rear passenger seat. Thulen told the travelers that he was going to write a warning ticket for speeding. He testified that all three seemed unusually nervous. Rodriguez moved his hands under a coat on his lap, and Thulen considered this a “furtive” movement. He ordered Rodriguez to show his hands and asked to see the coat. After determining that there were no weapons in the coat, Thulen returned it and escorted Cagle to his vehicle to write the warning ticket.

Thulen initiated a license check and engaged Cagle in conversation. Cagle told Thulen that she was going to Michigan to visit family. While Thulen was writing the ticket, a message was radioed informing him that Cagle had prior arrests for various offenses, including possession of controlled substances. Thulen said Cagle reacted by turning away from him and staring out the passenger window. He said her level of nervousness heightened, her lip trembled, and she appeared worried.

Thulen then asked if there was anything illegal in the car. Cagle responded, “Not that I know of.” This response concerned Thulen, because he considered it untruthful. He called for backup and asked Cagle if he could search the vehicle. Cagle said it was not her vehicle and she could not consent to a search. Thulen asked if he could conduct a canine sniff of the vehicle, and Cagle again responded that she could not consent because she did not own the vehicle. Thulen asked Cagle if she would have a problem with his searching the vehicle if it was okay with the defendant. Again, Cagle said she had no say in the matter. Thulen finished writing the warning ticket and told Cagle she was free to go. However, he then asked if she would remain in his vehicle while he spoke to the defendant. Cagle agreed to do so.

In his training as a peace officer, Thulen had learned that Colorado was a hub for the distribution of illegal drugs, and substantial amounts of cocaine and marijuana were being transported throughout the country from Denver and Colorado Springs. He also knew that Interstate 80 was a main corridor for the transportation of illegal drugs. Based on this knowledge, together with his observations during the stop and the information he had received regarding Cagle’s prior arrests, he suspected that the vehicle contained contraband.

Thulen told the defendant to put her shoes on and exit the vehicle. Thulen then asked the defendant if he could conduct a canine sniff of the vehicle. He explained that he had observed some indicators of criminal activity. The defendant denied consent for both a canine sniff and a search. Thulen asked Rodriguez to exit the vehicle and told them they were free to leave. He said he was going to detain the vehicle, however, for a canine sniff. Cagle joined the defendant and Rodriguez on the side of the road, and Thulen explained that they could walk away, hop the fence, or he could help them secure a ride.

The three travelers began walking along the shoulder of the highway and stopped a short distance from the vehicle. Thulen led his drug detection dog to the Honda. After the dog took an interest in the rear of the vehicle, Thulen led the dog around to the driver’s side of the vehicle. The dog leaped through an open window on the driver’s side of the vehicle and alerted at luggage in the cargo area. Thulen returned the dog to his vehicle and conducted a manual search of the Honda. He located a duffle bag full of cellophane-wrapped bundles of suspected cannabis in the cargo area. Thulen immediately ordered the three travelers to halt, as they had resumed their slow walk from the vehicle, and placed them under arrest. Sergeant Floyd Blanks arrived in response to Thulen’s request for backup assistance. After securing the travelers, the officers found another container of suspected cannabis in the back of the Honda under a bag of toiletries and a pair of women’s jeans.

Thulen said he had a sinus infection on the date of the arrest, and he was unable to detect the odor of the cannabis until he opened the rear door to the cargo area of the Honda in response to the dog’s alert.

Cagle and the defendant testified in support of the motion to suppress. Cagle said she had had mouth surgery in January 2005, and she still had trouble speaking with her new dentures. She denied that she was acting nervous or upset during the stop or upon hearing her criminal history when it was broadcast on Thulen’s radio. She also testified that the defendant did not appear nervous or upset during the stop.

The defendant testified that her husband owned the vehicle, but she used it as if it were her vehicle. She stated that they were not speeding when they passed Thulen’s vehicle. She said her mother never speeds. She disagreed with Thulen at the scene and told him they were traveling at 60 miles per hour before they were stopped. She corroborated Cagle’s testimony that neither of them was nervous during the stop. The defendant said she did not know Rodriguez before the trip.

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People v. Davenport
910 N.E.2d 134 (Appellate Court of Illinois, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
910 N.E.2d 134, 392 Ill. App. 3d 19, 331 Ill. Dec. 61, 2009 Ill. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davenport-illappct-2009.