Find Legal Information

Docket No. 93628-Agenda 3-March 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
MARCELO LEDESMA et al. (Guadalupe Jose Perez et al., Appellants.

Opinion filed June 19, 2003.

JUSTICE GARMAN delivered the opinion of the court:

Following simultaneous traffic stops of two vehicles resultingfrom an anonymous 911 tip and police observations based on thattip, defendants were charged with delivery of cannabis in violationof section 5(f) of the Cannabis Control Act (Act) (720 ILCS550/5(f) (West 1998)) and possession of cannabis in violation ofsection 4(f) of the Act (720 ILCS 550/4(f) (West 1998)). Thecircuit court of Vermilion County granted a defense motion tosuppress as evidence drugs found in one of the vehicles. Theappellate court reversed (327 Ill. App. 3d 805), and we grantedleave to appeal (177 Ill. 2d R. 315). We are asked to determinewhether the evidence should have been suppressed because thetraffic stops in question were based on information obtained inviolation of state eavesdropping statutes, federal wiretappingstatutes, and constitutional protections against unreasonablesearches and seizures contained in the United States and IllinoisConstitutions. We are also asked to determine whether the policesearch of one of the vehicles was conducted pursuant to thedriver's consent.

BACKGROUND

Between 11:30 p.m. and 12 a.m. on September 18, 1998,Tilton police officers received a radio dispatch that an anonymous911 caller reported a "possible drug deal" was to take place in theparking lot of an Aldi store on Georgetown Road in Tilton,Illinois. The anonymous caller stated that he had overheard acellular phone conversation on his police scanner. The caller statedthat one of the vehicles involved in the transaction would be teal-colored. The officers positioned themselves in a parking lot acrossthe road from the Aldi store. As officers watched the Aldi parkinglot, a maroon automobile drove into the Aldi lot and then into theparking lot of an adjacent gas station. Officers observed themaroon vehicle pull alongside a parked teal vehicle and stop. Theheadlights on both vehicles were turned off and they brieflyremained parked beside each other. The vehicles then left the gasstation parking lot simultaneously and traveled north on IllinoisRoute 1, where another police vehicle was waiting. Police pulledover the vehicles along Route 1. Marcelo Ledesma was the driverof the teal vehicle and defendant Jose Perez was his passenger.Richard W. Roth, Jr. was the driver of the maroon vehicle andJeremy A. Edwards was his passenger. After stopping Ledesma'svehicle, police officer Steve Cornett informed Ledesma that hehad reason to believe he had engaged in drug-related activity andasked if there were any drugs or alcohol in the vehicle. Ledesmareplied that there were none. Officer Cornett then inquired ifLedesma had any objections to Officer Cornett "taking a look" inthe vehicle. Ledesma stated he had no objections. After indicatinghis consent to the search and exiting the vehicle along with Perez,Ledesma inquired into the purpose of the search and, in the wordsof Officer Cornett, was "kind of hem-hawing around." Ledesmadid not expressly withdraw his consent to the search. OfficerCornett's narcotics detection canine "indicated" the presence ofnarcotics on Perez's legs and the vehicle doors. The canine alsoindicated on the seat and a bag found on the front passengerfloorboard. Officer Cornett opened the bag and discovered whatappeared to be a substantial amount of cannabis. Tests confirmedthat the substance was marijuana weighing in excess of 2,200grams.

Upon stopping the vehicles, Officer David Phillipsapproached the maroon vehicle and asked the driver, Roth, for adriver's license. Roth stated that his license had been revoked andhe was immediately placed under arrest for driving with a revokedlicense. While seated in the front seat of the squad car, Rothadvised Officer Phillips that his bond money was underneath thefront seat and that he wanted Edwards to get it for him. WhileOfficer Mike Schull reached in to get the bond from under theseat, Officer Phillips, who was standing beside Edwards outsidethe car, noticed that a large amount of cash had fallen out fromunderneath the driver's seat. Police discovered $5,000 in cashlaying loose underneath the seat.

On September 21, 1998, Ledesma, Perez, Roth, and Edwardswere charged with delivery of cannabis in violation of section 5(f)of the Act (720 ILCS 550/5(f) (West 1998)) and possession ofcannabis in violation of section 4(f) of the Act (720 ILCS 550/4(f)(West 1998)). Defendants moved to suppress all evidence obtainedas a result of the traffic stop. The trial court granted the motion tosuppress, holding that a Terry stop (Terry v. Ohio, 392 U.S. 1, 20L. Ed. 2d 889, 88 S. Ct. 1868 (1968)) was not warranted becausethere was insufficient independent corroboration of the tip and thatpolice had exceeded Ledesma's consent to search his vehicle. Theappellate court reversed, holding that the stop was permissiblebecause there was no violation of state or federal statues orconstitutional protections against unreasonable searches andseizures. 327 Ill. App. 3d at 810-15. The court also held that thesearch did not exceed the scope of Ledesma's consent. 327 Ill.App. 3d at 815. This court has jurisdiction pursuant to SupremeCourt Rule 315 (177 Ill. 2d R. 315).

ANALYSIS

A trial court's ruling on a motion to suppress evidence issubject to reversal only if it is manifestly erroneous. People v.Mitchell, 165 Ill. 2d 211, 230 (1995). As both parties note, de novoreview is appropriate, however, when neither facts nor credibilityof witnesses is questioned. Mitchell, 165 Ill. 2d at 230. Althoughthe parties may have varying interpretations of the motives of theanonymous caller or the conversation that took place betweenLedesma and Officer Cornett, neither party has identified anydisputed facts. Therefore, we review de novo the suppression ofthe evidence.

The Anonymous Tip and Propriety of the Stop

Defendants argue that the evidence should have beensuppressed because the sole basis for the traffic stop was based ona "vague and anonymous" 911 call that indirectly provided policewith information obtained in violation of state eavesdroppingstatutes, federal wiretapping legislation, and constitutionalprotections against unreasonable searches and seizures.

State Law

Defendants argue that evidence seized during the stop shouldbe suppressed pursuant to the Illinois eavesdropping statute (720ILCS 5/14-1 et seq. (West 1998)). Section 14-5 of the CriminalCode of 1961 (Code) provides:

"Any evidence obtained in violation of this Article isnot admissible in any civil or criminal trial, or anyadministrative or legislative inquiry or proceeding, nor inany grand jury proceedings; provided, however, that somuch of the contents of an alleged unlawfully intercepted,overheard or recorded conversation as is clearly relevant,as determined as a matter of law by the court in chambers,to the proof of such allegation may be admitted intoevidence in any criminal trial or grand jury proceedingbrought against any person charged with violating anyprovision of this Article." 720 ILCS 5/14-5 (West 1998).

Section 14-2 of the Code provides in part:

"A person commits eavesdropping when he:

(a) Uses an eavesdropping device to hear or record allor any part of any conversation ***; or

(b) Uses or divulges *** any information which heknows or reasonably should know was obtained throughthe use of an eavesdropping device." 720 ILCS 5/14-2(West 1998).

Section 14-3(d) contains a number of exemptions to theactivities prohibited under section 14-2. Section 14-3 exempts:

"(d) Recording or listening with the aid of any device toany emergency communication made in the normal courseof operations by any federal, state or local lawenforcement agency or institutions dealing in emergencyservices, including, but not limited to, hospitals, clinics,ambulance services, fire fighting agencies, any publicutility, emergency repair facility, civilian defenseestablishment or military installation[.]" 720 ILCS5/14-3(d) (West 1998).

The Illinois eavesdropping statute defines "conversation" as"any oral communication between 2 or more persons regardless ofwhether one or more of the parties intended their communicationto be of a private nature under circumstances justifying thatexpectation." 720 ILCS 5/14-1(d) (West 1998).

Section 114-12(b) of the Code permits the bringing of amotion to suppress evidence illegally seized and states that "theburden of proving that the search and seizure were unlawful shallbe on the defendant." 725 ILCS 5/114-12(b) (West 1998). InPeople v. Gipson, 203 Ill. 2d 298, 306-07 (2003), this court stated:

"The defendant bears the burden of proof at a hearing ona motion to suppress. [Citations.] A defendant must makea prima facie case that the evidence was obtained by anillegal search or seizure. [Citation.] If a defendant makesa prima facie case, the State has the burden of goingforward with evidence to counter the defendant's primafacie case. [Citation.] However, the ultimate burden ofproof remains with the defendant. [Citation.]"

Assuming, arguendo, that defendants met their initial burdenof making a prima facie showing in this case, we find that theState met its burden of going forward. Police responded to a callfrom the dispatch office that a tip had been received stating that adrug transaction was to take place involving a specific type ofvehicle at a specific location. The officers' observationscorroborated the information reported by the tipster. The informantstated that he overheard the cellular conversation while listeningto a police scanner. Police scanners are devices designed to"[r]ecord[ ] or listen[ ] *** to any emergency communicationmade in the normal course of operations by any federal, state orlocal law enforcement agency or institutions dealing in emergencyservices ***." 720 ILCS 5/14-3(d) (West 1998). Such devices arespecifically exempt from the eavesdropping statute by section14-3(d) of the Code (720 ILCS 5/14-3(d) (West 1998)). We findnothing in the record to indicate that the Illinois eavesdroppingstatute was violated or that the tipster's interception of theconversation was anything but inadvertent. The factual content ofthe tip was sufficiently corroborated through the officers'observations.

Federal Law

Defendants also contend that all evidence seized during thestop should be suppressed pursuant to section 2515 of the federal"wiretap" statute. 18 U.S.C.