Rule 23 order filed NO. 5-09-0563 March 30, 2011; Motion to publish granted IN THE May 5, 2011. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Union County. ) v. ) No. 09-CF-55 ) CEDRIC J. SINEGAL, ) Honorable ) Mark M. Boie, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Welch and Donovan concurred in the judgment and opinion.
OPINION
The defendant, Cedric J. Sinegal, appeals his conviction for unlawful possession of
cannabis. He argues that the trial court erred in denying his motion to quash arrest and
suppress evidence because officers who pierced the side of a plastic-wrapped package
containing the cannabis lacked probable cause to search the package. We affirm.
The defendant's conviction stems from a stop of his vehicle at a gas station near
Interstate 57 in Union County, Illinois. Trooper Rodger Goines initially stopped the vehicle
because the defendant was exceeding the speed limit and his car had tinted windows and did
not have a front license plate. After stopping the vehicle, Trooper Goines learned that the
defendant's vehicle was registered in Louisiana. Illinois requires vehicles to have two license
plates, while Louisiana does not. At the relevant time, Illinois prohibited tinted windows for
the windshield and the windows to each side of the driver, while Louisiana does not. (We
note that the law has subsequently been amended to relax that prohibition. 625 ILCS 5/12-
1 503(a-5) (West Supp. 2009); Pub. Act 96-815, §5 (eff. Oct. 30, 2009).) It is not illegal to
drive an out-of-state vehicle into Illinois that fully complies with the requirements of the state
in which it is registered; however, Trooper Goines did not realize that the car was registered
in Louisiana until he made the stop. During the course of the stop, Trooper Goines
discovered a large package wrapped in opaque green plastic. He suspected that the package
contained narcotics. He therefore called for backup, arrested the defendant and a passenger
in his vehicle, and searched the vehicle. Sergeant Steven Lawrence arrived and pierced the
side of the package, revealing that it contained cannabis.
The defendant and his passenger were charged with unlawful possession with intent
to deliver cannabis, cannabis trafficking, and unlawful possession of cannabis. Their cases
were consolidated for purposes of a series of hearings on their motions to quash their arrests
and suppress evidence of the cannabis.
At the first hearing on the motions, Trooper Goines testified that he saw the
defendant's vehicle traveling at a speed of 68 miles per hour in a 65-mile-per-hour zone. He
also noticed that the vehicle had no front license plate and had black tinted windows on each
side of the driver and on the rear windows. He followed the defendant's vehicle as the
defendant exited the interstate. At the top of the exit ramp, the vehicle did not come to a
complete stop. In addition, it appeared to begin to turn right but then turned left instead.
Trooper Goines testified that he followed the vehicle into a Travel Hut located near the
interchange. There, both the driver and the passenger immediately jumped out of the car.
They stated that they needed to buy gas and both needed to use the restroom. Trooper Goines
patted down each defendant and allowed them to use the restroom one at a time.
Trooper Goines testified that he asked the defendant for permission to look at his gas
gauge and that the defendant consented. When Trooper Goines opened the car door to look
at the gauge, he saw a 24- by 12-inch package wrapped tightly in opaque green plastic shrink
2 wrap. The package was lying on the driver's seat. He immediately suspected that it
contained narcotics. He called for backup, placed both defendants under arrest, and searched
the defendant's car. The search did not turn up any additional contraband. Sergeant Steven
Lawrence arrived on the scene and pierced the side of the package, revealing a leafy
substance the officers suspected to be cannabis.
After his testimony, Trooper Goines left the courtroom, and the attorneys for the
defendants and the State began their arguments. The State argued that once Trooper Goines
saw the package in plain view on the front seat of the defendant's car, it was "rather obvious"
to him that the package contained narcotics. In response, the defendants argued that there
was no evidence to support the officer's suspicion that the package contained drugs. They
argued that there was no suspicious behavior on the part of either defendant to support this
conclusion and that Trooper Goines' search of the car and pat-down searches of both
defendants yielded no evidence of any additional contraband or drug paraphernalia. The
court then made the following observation: "I didn't hear any testimony from the trooper that
he even had any previous drug experience, any previous experience that would lead him to
believe that the bundle was anything about drugs." The court continued the hearing to allow
the parties time to address the applicability of Arizona v. Gant, 556 U.S. ____, 173 L. Ed. 2d
485, 129 S. Ct. 1710 (2009). That case, which was decided five days after the search and
seizure at issue in this case occurred, placed limits on the ability of officers to search a
vehicle incident to an arrest. Gant, 556 U.S. at ____, 173 L. Ed. 2d at 501, 129 S. Ct. at
1723-24. Although relevant at the trial court level, the case is not relevant to the issues
raised in this appeal. The defendant concedes that Trooper Goines discovered the package
after being given consent to open the door to look at the gas gauge and that the search of the
vehicle did not turn up any other incriminating evidence.
A few days after the first hearing, the State filed a motion to strike the defendants'
3 motions to quash arrest and a motion to reopen direct examination and allow additional
witnesses. The defendants promptly filed an objection to the State's motions. The court held
a second hearing to address these pending motions. The court denied the motion to strike,
finding that it was untimely and moot. The court found that it had never closed the evidence
in the first hearing; therefore, over the defendants' objections, the court ruled that the State
would be permitted to present additional evidence without the need to reopen the case.
The court then held a third hearing in the matter. Trooper Goines again took the
stand. This time, he testified that he asked the passenger about the package and that the
passenger told him that the package did not belong to him and that he did not know what was
in the package or how it got there. Trooper Goines also testified that he questioned both
defendants about where they were going. The defendant, who was the driver, told him that
they were going to Indianapolis. The passenger said that he was just going along for the ride
and did not know where they were going.
Trooper Goines further testified that he immediately suspected that the package
contained some type of narcotics because of the way it was wrapped as well as the
defendants' behavior. He explained that he had some training in drug interdiction, from
which he had learned that plastic wrap was used by drug traffickers to conceal narcotics. He
further explained that although many drivers appear to be nervous when stopped for routine
traffic violations, both defendants here acted more nervous than the typical motorist. Trooper
Goines acknowledged that he did not know what type of narcotic he could expect to find in
the package. He suspected it contained cocaine because he ran a warrant check on each
defendant and learned that each had a history of cocaine trafficking. He also acknowledged
that his search of the car did not turn up any additional evidence of contraband.
Sergeant Steven Lawrence, the officer who pierced the package, also testified for the
State. He testified that he had taken five different one-week training seminars dealing with
4 drug interdiction, including one seminar specifically geared towards interdiction on the
interstate. In addition, he had attended shorter one-day seminars on the topic. He explained
that narcotics are generally transported in shrink-wrapped packages, such as the one found
in the defendant's car, to make it harder to detect. The human nose cannot smell the narcotics
through the airtight wrap, and because opaque wrap is used, the drugs themselves are not
visible, either. Sergeant Lawrence testified that he had been involved in 8 to 10 previous
stops involving packages containing narcotics. Although the wrap was black rather than
green in most of the stops, the packages were otherwise identical to the one Trooper Goines
found in the defendant's car. He testified that the type of packaging used here was never used
for anything other than illegal drugs.
Sergeant Lawrence went on to explain that he suspected not only that the package
contained narcotics but that it contained cannabis. He explained that the packaging for
different types of drugs was distinctive–for example, cocaine was ordinarily wrapped in
small brick-shaped packs that could easily be concealed in the door pocket of a vehicle, while
cannabis was ordinarily wrapped in larger packages such as the one involved here. He
testified that two things led him to question whether the package might contain something
other than cannabis–first, he knew from Trooper Goines that both defendants had a history
of cocaine trafficking, and second, ordinarily with a package that large it was possible to
smell the faint aroma of cannabis in spite of the plastic wrap, but he could not smell it.
Finally, Sergeant Lawrence testified that he pierced the side of the package at the scene so
that he could tell the drug interdiction unit what type of narcotic they had found before they
arrived.
The court found that Trooper Goines had consent to look at the gas gauge. This
required him to open the door to the car, which in turn led to the discovery of the package
in plain view. This gave him probable cause to arrest the defendant and search the car. The
5 court further found that the officers' training and experience in drug detection, combined with
their knowledge of the defendants' prior history of drug trafficking and the nervousness
displayed by both men during the stop, gave Sergeant Lawrence probable cause to open the
package at the scene. The court denied the motion to suppress. After a stipulated bench trial,
the defendant was convicted of unlawful possession of cannabis, and the State dropped the
other charges. The defendant then filed the instant appeal.
A ruling on a motion to suppress evidence presents mixed questions of fact and law.
On appeal, we will reverse the trial court's findings of fact only if they are against the
manifest weight of the evidence. However, we will consider de novo "the ultimate question
of whether the evidence should be suppressed." People v. McDonough, 239 Ill. 2d 260, 266,
940 N.E.2d 1100, 1105 (2010).
The fourth amendment does not protect citizens from any and all searches and
seizures; it prohibits only those searches and seizures that are unreasonable. People v. Hall,
352 Ill. App. 3d 537, 545, 816 N.E.2d 703, 710 (2004). Generally, this requires a warrant
supported by probable cause. However, there are exceptions to the requirement of a warrant.
People v. Jones, 215 Ill. 2d 261, 269, 830 N.E.2d 541, 548 (2005). "The central requirement
of the fourth amendment is reasonableness." Jones, 215 Ill. 2d at 268, 830 N.E.2d at 548.
Two exceptions are relevant to this appeal. First, officers may properly conduct a search
without a warrant if they are given consent. People v. Davis, 398 Ill. App. 3d 940, 956, 924
N.E.2d 67, 82 (2010). Second, under the plain view doctrine, an officer may seize an object
without a warrant if (1) the officer is lawfully in the place where he sees the object in plain
view, (2) the officer has a lawful right of access to the object, and (3) the incriminating
nature of the object is "immediately apparent." Jones, 215 Ill. 2d at 271-72, 830 N.E.2d at
550. The incriminating nature is immediately apparent if the officer has probable cause to
believe that the object is evidence of a crime without searching further. Jones, 215 Ill. 2d
6 at 272, 830 N.E.2d at 550.
Here, there is no real dispute that the defendant gave Trooper Goines consent to enter
his car to look at his gas gauge. Thus, there is no question that he was lawfully in the vehicle
when he saw the package in plain view or that he had lawful access to it. What is at issue is
whether he had probable cause to believe that the package contained illegal drugs without
conducting a further search.
The defendant argues that Trooper Goines lacked probable cause to arrest the
defendant or seize the package because (1) the package was not distinctive enough to make
it obvious that it contained narcotics and (2) the defendant's actions were not suspicious. We
disagree on both counts.
The defendant argues that the package "could have contained anything." Trooper
Goines acknowledged that he did not know with certainty that the package contained
narcotics; however, probable cause to believe that a package contains contraband does not
require absolute certainty. Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103
S. Ct. 1535, 1543 (1983); Jones, 215 Ill. 2d at 277, 830 N.E.2d at 553. Trooper Goines
testified that he had seen similar packages on at least five previous occasions and that each
one had contained narcotics. As previously noted, he also testified that he had at least some
training in drug interdiction, although he did not provide much detail.
Moreover, in determining whether Trooper Goines had probable cause to believe that
the package contained illegal drugs, we must consider all the circumstances known to him
at the time. See People v. Holmes, 104 Ill. App. 3d 1049, 1053-54, 433 N.E.2d 1027, 1031
(1982). Here, Trooper Goines' suspicion that the package contained narcotics was
heightened due to what he considered to be suspicious behavior by the defendant and his
passenger. In arguing that this behavior did not give rise to probable cause, the defendant
focuses on two observations. He notes that Trooper Goines testified that the defendant and
7 his passenger acted nervous during the encounter and that he believed they were taking
evasive measures as he followed the vehicle on the exit ramp. The defendant argues that
there are innocent explanations for both of these behaviors. He points out that anyone might
be nervous during a traffic stop and that the defendant likely turned left after beginning to
turn right at the top of the ramp because he did not know where the gas station was. We note
that Trooper Goines acknowledged both of these possibilities in his testimony. Although he
testified that they appeared to be trying to avoid him when the vehicle began to turn right but
turned left instead, he also acknowledged that it was apparent they did not know where they
were going. Trooper Goines also indicated that most motorists are nervous during traffic
stops. However, he specifically testified that both the defendant and his passenger seemed
more nervous than most people he encounters making routine traffic stops. Moreover, these
are not the only relevant circumstances Trooper Goines considered. As previously noted, the
passenger told Trooper Goines that he did not know where they were going, what was in the
package, or how the package got in the car. In addition, a warrant check revealed that both
the defendant and his passenger had prior drug charges. We believe that the combination of
all of these circumstances–including Trooper Goines' knowledge that the package was the
type of package used to transport drugs–gave rise to probable cause to arrest the defendants
and seize the package.
This does not end our inquiry, however. Even when the plain view doctrine supports
the warrantless seizure of a package or container, it does not always follow that the contents
of the package or container may be searched without a warrant, as was done here. Jones, 215
Ill. 2d at 278, 830 N.E.2d at 554. If the contents of the properly seized package "are a
forgone conclusion," police officers may properly search the package without obtaining a
warrant. Jones, 215 Ill. 2d at 279, 830 N.E.2d at 554. The contents of a package may be a
foregone conclusion if the package is transparent or open or "when its 'distinctive
8 configuration proclaims its contents.' " Jones, 215 Ill. 2d at 279, 830 N.E.2d at 554 (quoting
People v. Williams, 41 F.3d 192, 197 (4th Cir. 1994)). Applying this principle to the instant
case, we find that Sergeant Lawrence was justified in piercing the side of the package.
As previously discussed, both Trooper Goines and Sergeant Lawrence testified to
prior training and experience in drug interdictions. Although Goines gave little specific
testimony related to his training, Sergeant Lawrence was the officer who actually made the
decision to pierce the package, and he testified that he had attended at least five different
weeklong training seminars in addition to several one-day seminars. He further testified that,
at these seminars, participants were given the opportunity to see and handle various examples
of different types of drug packages. In addition, both officers testified that they had been
involved in multiple prior drug interdictions and that each time they had encountered a
package similar to the one found in the defendant's car, it had contained narcotics. As the
defendant acknowledges, the officers may rely on this training and experience. Jones, 215
Ill. 2d at 274, 830 N.E.2d at 551.
The facts before us are similar to those present in Jones. There, an officer asked a
driver to produce his driver's license during a routine traffic stop. After the driver handed
his license to the officer, his front shirt pocket opened, revealing a small wooden box. Jones,
215 Ill. 2d at 264, 830 N.E.2d at 546. Due to his training and experience in drug interdiction,
the officer recognized the box as a "one-hitter" box, which is commonly used to hold
cannabis. The officer opened the box and found a pipe and some cannabis inside. Jones, 215
Ill. 2d at 264, 830 N.E.2d at 546.
The officer testified that he had received a one-week course in drug detection. During
this training course, the officer had the opportunity to examine exhibits of various types of
drug paraphernalia, including a one-hitter box. Jones, 215 Ill. 2d at 275, 830 N.E.2d at 551.
He also testified that he had encountered one-hitter boxes 24 previous times and that every
9 time he encountered one, it contained drugs. He had never seen this type of box used for any
other purpose. Jones, 215 Ill. 2d at 275, 830 N.E.2d at 551-52.
In upholding the validity of the search of the contents of the box, the supreme court
noted that it might not have been obvious to a civilian that Jones's one-hitter box was an item
of drug paraphernalia almost certain to contain marijuana. The court concluded, however,
that "taking into account [the officer's] training and experience," the one-hitter box was
distinctive enough to "proclaim[] its contents." Jones, 215 Ill. 2d at 282, 830 N.E.2d at 556.
Here, similarly, the training and experience of both officers, particularly Sergeant
Lawrence, led them to expect with near certainty that the package would contain illegal
drugs. Both officers testified that every time they had encountered a similar package, it had
contained narcotics. Sergeant Lawrence, who had encountered similar packages on 10 prior
occasions and testified to fairly extensive training in drug detection, stated that he had never
seen anything other than drugs packaged in this distinctive manner. He testified regarding
the reasons that drug traffickers use opaque plastic wrap to avoid detection. He even testified
that the configuration and size of the package revealed that it almost certainly contained
cannabis. The defendant contends that the package in this case is not as distinctive as the
one-hitter box in Jones. However, we find this contention to be contradicted by the
testimony of the officers. In light of this training and experience, we find that Sergeant
Lawrence's near certainty that the package would contain drugs justified his act of piercing
the package at the scene without first obtaining a warrant.
Finally, we acknowledge that we reach a different conclusion than the court in People
v. Penny, 188 Ill. App. 3d 499, 544 N.E.2d 1015 (1989), a case that is factually similar to the
case before us. There, two Chicago police officers stopped a motorist because his
registration sticker had expired. Penny, 188 Ill. App. 3d at 500, 544 N.E.2d at 1015. When
they asked the driver to produce his driver’s license, they noticed that his hands shook.
10 Penny, 188 Ill. App. 3d at 500, 544 N.E.2d at 1015-16. One officer looked into the vehicle
and saw a small, bricklike package wrapped in opaque brown plastic. (One of the officers
in Penny testified that the package looked " 'like a kilo of cocaine' " and felt " 'like a brick.' "
Penny, 188 Ill. App. 3d at 500, 544 N.E.2d at 1016. We note that in this case, Sergeant
Lawrence testified that cocaine is ordinarily packaged in this bricklike configuration.) The
officer removed the package from the car, pierced it with a knife, and discovered that it
contained a white powder. Subsequent testing revealed that the powder was cocaine. Penny,
188 Ill. App. 3d at 500, 544 N.E.2d at 1016.
There, the trial court granted the defendant’s motion to suppress, finding that the
officers " 'had nothing more than mere suspicion.' " Penny, 188 Ill. App. 3d at 501, 544
N.E.2d at 1016. The First District Appellate Court affirmed that ruling. Penny, 188 Ill. App.
3d at 505, 544 N.E.2d at 1019. We do not find that the same result is warranted here. Even
if we were obliged to follow a 20-year-old decision of a different district of the appellate
court, we find Penny distinguishable from the instant case for two key reasons.
First, the officer who testified in Penny stated only that, based on his experience, he
believed that the package " 'looked like a kilo of cocaine.' " Penny, 188 Ill. App. 3d at 503,
544 N.E.2d at 1017. Unlike Sergeant Lawrence, he did not testify that the package was
distinctive, and he did not provide any testimony outlining what type of training and
experience he had in drug interdiction. Although the officers in Penny might well have had
more than a mere suspicion that the package contained cocaine, they did not provide the court
with a factual basis to allow the court to reach this conclusion. Here, by contrast, Sergeant
Lawrence testified that he had extensive knowledge and training in drug interdiction and that
the type of packaging used here was distinctive and typically used by drug traffickers to
conceal the contents. A fact in point was that Sergeant Lawrence had personal experience
in 8 to 10 prior cases of similar packages, all of which contained narcotics, and that this type
11 of package was not used for anything other than illegal drugs.
Second, in Penny the only additional circumstance known to the arresting officers was
the fact that the driver’s hands were shaking when he produced his license. Penny, 188 Ill.
App. 3d at 503, 544 N.E.2d at 1017. As the First District pointed out, nervousness alone is
not enough to give rise to suspicion, especially during a routine traffic stop when many
drivers are likely to be nervous. Penny, 188 Ill. App. 3d at 503, 544 N.E.2d at 1017. Here,
by contrast, the officers were aware that both the defendant and his passenger had prior drug
trafficking arrests and that they gave conflicting answers when asked their destination. We
thus find the instant case distinguishable from Penny and decline to follow the decision in
that case.
We conclude that the trial court correctly denied the motion to suppress evidence.
Accordingly, we affirm the defendant's conviction.
Affirmed.
12 NO. 5-09-0563
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ___________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Union County. ) v. ) No. 09-CF-55 ) CEDRIC J. SINEGAL, ) Honorable ) Mark M. Boie, Defendant-Appellant. ) Judge, presiding. ___________________________________________________________________________________
Rule 23 Order Filed: March 30, 2011 Motion to Publish Granted: May 5, 2011 Opinion Filed: May 5, 2011 ___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, P.J.
Honorable Thomas M. Welch, J., and Honorable James K. Donovan, J., Concur ___________________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Johannah B. Weber, Deputy Defender, for E. Joyce Randolph, Assistant Appellate Defender, Office of the State Appellate Appellant Defender, 909 Water Tower Circle, Mt. Vernon, IL 62864 ___________________________________________________________________________________
Attorneys Hon. Tyler R. Edmonds, State's Attorney, Union County Courthouse, 309 W. Market for Street, Jonesboro, IL 62952; Patrick Delfino, Director, Stephen E. Norris, Deputy Appellee Director, Timothy James Ting, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Hwy 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ___________________________________________________________________________________