People v. Davis , 2019 IL App (1st) 160408 ( 2020 )

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Appellate Court Date: 2020.06.16
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People v. Davis, 2019 IL App (1st) 160408Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PARRISH DAVIS, Defendant-Appellant.
District & No. First District, First Division
No. 1-16-0408
Filed September 23, 2019
Modified upon
denial of rehearing October 28, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-
Review 10327(03); the Hon. Lawrence E. Flood, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Heidi Linn Lambros, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Matthew Connors, and Noah Montague, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 The State charged Parrish Davis with possessing more than 900 grams of cocaine found in
a compartment secreted near where he sat in the backseat of a car. Before trial, Davis moved
to suppress this evidence, arguing that the search leading to its discovery was unreasonable.
The trial court denied the motion. In addition to the cocaine, officers found three guns and
multiple rounds of ammunition. The State moved in limine to admit the gun evidence along
with an admission to police that he possessed the drugs and guns. The trial court granted both
in limine motions. A jury convicted Davis of one count of possession with intent to deliver
more than 900 grams of cocaine. The trial court sentenced Davis to 25 years in prison.
¶2 On appeal, Davis raises four arguments: (i) the trial court erred in denying his motion to
suppress evidence, (ii) the trial court erred in admitting evidence of the guns, (iii) the State
violated the trial court’s in limine ruling by introducing evidence of the statement not covered
by that ruling, and (iv) his sentence is excessive. At oral argument, Davis withdrew his third
contention. We disagree with Davis’s remaining arguments and affirm his conviction and
sentence.
¶3 Background
¶4 At about 3 p.m. on October 24, 2011, Yakov Witherspoon picked up a woman he knew,
Franchon Jenkins, so she could get her paycheck at Navy Pier. He drove a silver two-door
Honda. Parrish Davis accompanied them, sitting in the backseat. When they arrived at Navy
Pier, Witherspoon let Jenkins out and then dropped Davis off at the Louis Vuitton store on
Michigan Avenue. Witherspoon went back to Navy Pier, picked up Jenkins, and returned to
the Louis Vuitton store for Davis. As they drove back to Jenkins’s home, Jenkins lay back and
closed her eyes. She woke up when Witherspoon parked the Honda in a Marshall’s lot.
¶5 Witherspoon backed into the parking space. Davis opened his door, and a man in the
driver’s seat of a van next to them handed a white bag into the backseat. Witherspoon could
not see what was in the bag and had no knowledge about what was in it. Jenkins also saw “a
white bag being hand[ed] towards the back.” After the other man passed the bag into the car,
Witherspoon “pulled off.”
¶6 While the three went about their day, Chicago police officers were deep into a narcotics
investigation, working as part of a task force with the federal Drug Enforcement
Administration (DEA). Undercover Chicago police officer Edison Cevallos phoned a man
named Jorge Urbina—the target of the investigation—at about 2:40 p.m. Cevallos ordered 2.5
ounces of cocaine from Urbina, an order similar to five or six others he had made. Cevallos
arranged with Urbina to buy the cocaine around 5 p.m. that day. He relayed the information
about the planned drug buy to the other members of his team.
¶7 Chicago police officer Robert Dembski, also part of the DEA task force, was already
familiar with Urbina. At 4:11 p.m., Dembski saw Urbina driving a maroon minivan near 59th
Street and Richmond Street. He followed, keeping Urbina under constant surveillance until he
pulled into a parking spot near a Marshall’s in an “outdoor shopping center” at 4:47 p.m. When
they arrived at the parking lot, no other cars were near Urbina’s van. Other surveillance officers
arrived, and Dembski passed off primary surveillance responsibilities to Chicago police officer
Kenneth Mok.
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¶8 About 30 minutes later, Mok watched as “a silver-colored, two-door Honda arrive[d] at the
location and backed into the space next to the minivan.” The Honda and the minivan parked
so that the driver’s sides faced each other. Mok saw the driver door of the Honda and the
minivan open at the same time and saw Urbina “lean outward *** down a little bit and [saw]
a white object being transferred from the minivan to the Honda.” From Mok’s vantage point,
the object looked like the “corner of a white bag, possibly.” The drivers closed their doors, and
the Honda and the van “swiftly left the location.” Mok believed he had seen a drug transaction.
¶9 The van and the Honda travelled in separate directions. Mok instructed his team to follow
the Honda, which drove to the Dan Ryan Expressway and got off at 59th Street. From there,
Mok watched as Witherspoon “did not use his turn signal to make a southbound turn onto
Prairie.” Witherspoon, on the other hand, recalled using his turn signal for every turn.
Witherspoon pulled over near 60th Street and Prairie Avenue to let Jenkins out. Mok “asked
all [his] teammates to converge,” and Witherspoon and Jenkins recalled that “the police cars
just pulled up behind [them]” without activated lights or sirens.
¶ 10 Mok asked Witherspoon for his driver’s license, which he gave. Mok asked all three
occupants if they owned the car, and they all said they did not. After learning that, Mok had
other officers take Jenkins and Davis out of the car. Witherspoon is paralyzed from the waist
down; Mok allowed him to stay in the car.
¶ 11 Mok asked Witherspoon if any drugs were in the car. Witherspoon said, “There’s no drugs
in the car, go ahead and search it, it’s not mine.” At this point, Mok helped Witherspoon out.
Mok then started to search the car. Witherspoon denied being asked about drugs and denied
giving consent to search, saying that officers “[p]retty much just start[ed] tearing the car up”
from front to back right when they got to the car.
¶ 12 Mok started his search “from the front passenger side and worked [his] way towards the
back compartment.” He did not find any drugs or contraband in the front area. He overheard a
sergeant talking to Witherspoon, “trying to convince Mr. Witherspoon to tell [them] where the
drug location was.” At that point, Mok said that Witherspoon made either a “gesture” or an
“eye movement” to “make some sort of indication to [Mok] that, without being too specific,
that there [was], you know, the contraband in the back seat [sic].” According to Mok,
Witherspoon was “nodding his head towards the side of the—the rear side of the vehicle with
eye movement as well as, you know, whispering that it’s over there.”
¶ 13 Inspired by his communication with Witherspoon, Mok shifted his search to “the rear
behind the driver’s side.” Mok noticed “a vinyl panel about the armrest,” which he “pried open
with [his] hand.” Once he opened the panel, Mok could see that “there’s a hidden compartment,
you know, inside that location.” Mok reached in and took out a white bag with an object
“wrapped in black electrical tape.” Mok believed the object was a kilogram of cocaine. The
compartment also had three semiautomatic guns and an electronic scale. Then Mok opened
another panel on the rear passenger side. He found another compartment with a green bag
containing 9-millimeter and .45-caliber rounds of ammunition.
¶ 14 Before trial, Davis filed a motion to suppress all the evidence found in the Honda. He
argued that there was no basis for the stop, that it was illegal, and that any consent Witherspoon
gave was tainted by the stop’s illegality. Davis’s counsel also argued that, even if it was not an
illegal stop, the search exceeded the scope of the stop’s purpose. The trial court pressed the
State on the consent issue, and the State argued (among other points) “that this was a consent,
a valid consent stop, and the stop itself is supported by the observations and experience of the
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officer.” The trial court denied the motion, finding that the officers conducted a valid Terry
stop (see Terry v. Ohio, 392 U.S. 1 (1968)) based on their observations of the interaction
between Witherspoon and Urbina. As to consent, the trial court denied the motion, finding, “I
believe the police officer. I believe that Mr. Witherspoon gave consent to the officer to search
the vehicle. The officer searched the vehicle and recovered the contraband.”
¶ 15 Also before trial, the State moved “[t]o allow the People to introduce the three handguns
that were recovered at the same time as the kilogram of cocaine.” The State sought admission
of the gun evidence on the ground that it was relevant to prove Davis’s intent to deliver the
drugs. The State also contended that the evidence was not cumulative of Davis’s statement
because Davis would deny making the statement and the gun evidence helped prove up the
statement, which also contained an admission about the guns. Defense counsel argued that the
gun evidence would be “overkill” as the statement was already coming in.
¶ 16 The trial court partially denied the State’s motion to admit the gun evidence:
“I’m going to deny the motion in limine on behalf of the State because in light of
my ruling as far as the statement and the purpose for which that’s being admitted,
knowledge, lack of mistake and intent, I think that in looking at the probative value
versus the undue prejudice, I think by allowing that information in regarding the guns
under 403, number one, it may be cumulative, number one; and number two, I think in
light of my ruling on the statement, it would be unduly prejudicial.”
The State sought clarification on the scope of the ruling and this exchange took place:
“THE COURT: Right, but I’m not going to let you argue the inference that’s to be
drawn from those weapons as far as knowledge, intent, or lack of mistake. Do you
understand?
ASSISTANT STATE’S ATTORNEY [(ASA)]: So the recovery comes in.
THE COURT: Yes. That’s what the officers recovered.
[ASA]: And then I just stay away from the argument.
THE COURT: Absolutely.
[ASA]: Certainly.
THE COURT: Okay? Don’t argue that to the jury about the recovery of the guns.
[ASA]: I won’t but the fact that it comes in will come out of the officer.
THE COURT: Right.”
In sum, the trial court allowed the State to admit evidence that officers recovered guns but
admonished the State to refrain from arguing to the jury any inferences based on the recovery
of the guns.
¶ 17 At Davis’s jury trial, Dembski and Mok gave testimony substantially similar to their
suppression hearing testimony. Mok described the recovery of the cocaine and guns from the
hidden compartments. Through Mok’s testimony, the State introduced the three guns as
exhibits, and Mok described their make and caliber and explained that they were loaded when
he recovered them. Mok also described the ammunition and magazines recovered from the
hidden compartments. In addition, Chicago police officer Guillermo Gamboa testified about
the inventory procedures used for the recovered handguns, detailing his procedure, and again
describing them by make and caliber. After the testimony concluded, the court admitted all of
the State’s exhibits, including the guns and the statement, without objection.
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¶ 18 The jury found Davis guilty of one count of possession of a controlled substance with intent
to deliver. Davis filed a motion for a new trial, arguing, among other reasons, that the trial
court should have granted his motion to suppress evidence. The motion also challenged the
trial court’s ruling on the admission of Davis’s statement but did not argue that the admission
of the gun evidence was improper. The trial court denied the motion.
¶ 19 Before sentencing, the probation department prepared a presentence investigation report
(PSI). The PSI noted that Davis did not have a record of criminal convictions, either as an adult
or as a juvenile. Davis graduated from high school and, until the time of his arrest, was
employed. He has three children. Davis reported that he has heard voices in his head since he
was five years old but never has been prescribed psychotropic medication. He, however, took
prescribed medication for diagnosed depression. In addition to prescribed medication, Davis
self-medicated by abusing alcohol, consuming about a fifth of liquor daily. He denied using
any illegal drugs.
¶ 20 At sentencing, the State agreed that Davis would be at the lower end of the sentencing
range if he had possessed less cocaine. But, the State focused on the amount, 989.2 grams, and
the presence of guns and ammunition, which constituted aggravation in its view. The State
asked for a sentence “with an eye towards the idea that the minimum sentence would not be
appropriate.” Defense counsel asked for the minimum sentence, emphasizing Davis’s lack of
criminal background, steady work history, and untreated mental health issues.
¶ 21 The trial court sentenced Davis to 25 years, finding:
“Let [the] record reflect that the court has reviewed the presentence investigation
and also considered the matters in aggravation and mitigation involving this case. I
have heard the arguments of counsels and I have given the defendant the right of
allocution in this case.
This is a case which is a Class X felony but there is an enhanced sentence based on
the amount of drugs recovered. The range is from 15 to 60 years at 75 percent.
The court is required to take into consideration many factors in the case and not
only the amount of drugs and the circumstances under which the drugs were recovered
but also the information that I received in the presentence investigation regarding your
background.
In this case, this is a non-probationable case. The court requires that I look at the
issue of probation but in this case, that’s taken off the table because of the nature of the
charge against you and the finding by the jury in that regard.
The range of sentence in this case is from 15 to 60 years at 75 percent. Considering
the fact that you have no prior background and considering the facts in the case, I think
the appropriate sentence is a lesser sentence in the range, therefore, I am going to
sentence you to 25 years.”
Davis filed a motion to reconsider his sentence, arguing that it was “excessive and
unwarranted,” which the trial court denied.
¶ 22 Analysis
¶ 23 Davis makes three arguments challenging the judgment. In support of outright reversal, he
argues that the trial court erred in denying his motion to suppress evidence because officer
Mok’s search went beyond the scope of the driver’s consent. In support of a new trial, he argues
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that the trial court erred in granting the State’s motion in limine to admit evidence about the
guns found in the car. Finally, challenging his sentence, he argues that 25 years is excessive
given the nature of his conduct or that, at minimum, we should remand for resentencing, as the
trial court failed to adequately justify the sentence.
¶ 24 The Search of the Car
¶ 25 Although Witherspoon disputed it, in this court, Davis does not dispute Witherspoon’s
consent to the search. Instead, Davis contends that Mok exceeded the scope of the consent by
“physically” tearing apart the car’s interior, an action Witherspoon would not have reasonably
understood his consent to include. The State disagrees on two grounds. According to the State,
we are not presented with the issue of Witherspoon’s consent because the officers had probable
cause to search the Honda, bringing the search within the automobile exception to the fourth
amendment’s warrant requirement. Responding to the argument Davis made, the State asserts
that Witherspoon’s nonverbal communications to Mok extended the scope of his consent to
“the hidden compartments.” In reply, Davis says the officer did not have probable cause; the
police “could not identify the item passed between Davis and Urbina,” and so the automobile
exception does not apply.
¶ 26 We review the trial court’s ruling on Davis’s motion to suppress, applying a two-part
standard of review. People v. Luedemann, 222 Ill. 2d 530, 542 (2006). We will not reverse the
trial court’s factual determinations unless they are against the manifest weight of the evidence,
but we review the trial court’s legal conclusions de novo. Id.¶ 27 As a preliminary matter, Davis argues that the State cannot raise its argument based on the
automobile exception, having not argued that theory in the trial court. We disagree. In criminal
cases, principles of forfeiture apply to the State as much as they apply to defendants. People v.
Holloway, 86 Ill. 2d 78, 91 (1981). But, the forfeiture rule is one of fairness, based on the
premise that the trial court should get the first opportunity to examine an issue and that a party
should not be able to win reversal of a judgment “through [its] own inaction.” People v.
Denson, 2014 IL 116231, ¶ 13. Those principles do not apply to the prevailing party, who can
generally “defend its judgment on any basis appearing in the record.” Id. ¶ 17. That said, even
a prevailing party cannot “advance a theory or argument on appeal that is inconsistent with the
position taken” in the trial court. (Emphasis added.) Id.
¶ 28 We agree with Davis that the arguments in the trial court heavily focused on the validity
and scope of Witherspoon’s consent. Throughout the State’s argument, however, it repeatedly
asserted that the officers had sufficient cause to stop Witherspoon and engage with the
passengers more generally. The State argued, “the officers had plenty of observations here to
support approaching the vehicle and speaking to the driver.” The State described, as
“background” information, the surveillance done on Urbina and its purpose “to find out where
he gets his drugs possibly, if he sells to other people, other customers. It’s surveillance. They
have a known target and they’re following him. That leads them to these individuals.” The
State’s final submission was “that this was a consent, a valid consent stop, and the stop itself
is supported by the observations and experience of the officer.”
¶ 29 In context, the State’s argument, while focused on consent, includes repeated references to
its belief that the officers had sufficient cause to stop the Honda. The State’s position on appeal,
that the officers had probable cause to search the car independent of consent, follows from (or
at least is not inconsistent with) its arguments before the trial court. As the appellee, the State
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can rely on the automobile exception in support of its contention that we should affirm the trial
court’s judgment.
¶ 30 Considering both arguments, we agree that the officers exceeded the scope of
Witherspoon’s consent but find that, by the time the officers exhausted the limits of
Witherspoon’s consent, they had sufficient cause to continue searching under the automobile
exception. We affirm the denial of Davis’s motion to suppress.
¶ 31 Consent to Search
¶ 32 The fourth amendment protects people from unreasonable searches by government
officers. U.S. Const., amend. IV. The United States Supreme Court has “long approved
consensual searches” as inherently reasonable. Florida v. Jimeno, 500 U.S. 248, 250-51
(1991). As a result, a search done with consent “is not subject to the fourth amendment’s
warrant and probable cause requirements.” People v. Holliday, 318 Ill. App. 3d 106, 112
(2001). But consent does not necessarily give the officer unbridled discretion. Id. (“[an officer]
has no more authority than the defendant apparently gave through the consent”). The scope of
a consent search must consider “what a reasonable person would have understood from the
exchange between the defendant and the officer.” Id. We apply an objective reasonableness
standard; irrelevant are the subjective beliefs of both the consenting party and the searching
officer. People v. Baltazar, 295 Ill. App. 3d 146, 149-50 (1998).
¶ 33 As to the reasonableness of consent searches, the United States Supreme Court has
explained that the search’s “express object” generally defines its scope. Jimeno, 500 U.S. at
251. In Jimeno, the defendant gave the officer permission to search his car and knew that the
officer was looking for drugs. Id. During the search, the officer found a paper bag on the floor.
Id. Given that combination of facts, the court concluded that “[a] reasonable person may be
expected to know that narcotics are generally in some form of container,” which extended the
search “beyond the surfaces of the car’s interior to the paper bag lying on the car’s floor.” Id.So even though an officer may develop probable cause to believe that there are trap
compartments during a consent search, entry into those compartments goes beyond the scope
of the consent unless a reasonable person would view the interaction between the officer and
consent-giver as encompassing those specific areas.
¶ 34 We view the objective facts supporting a search or seizure from the officer’s perspective.
See People v. Booker, 2015 IL App (1st) 131872, ¶ 41 (Facts known at the time of the police
action “ ‘should be considered from the perspective of a reasonable officer at the time that the
situation confronted him or her.’ ” (quoting People v. Thomas, 198 Ill. 2d 103, 110 (2001))).
The State argues the record shows “that [Witherspoon] affirmatively indicated to the officer
the compartment’s location.” We do not see sufficient evidence in the record supporting an
objective belief that Witherspoon’s head nod referred to the secret compartments. At the time
of the search leading to the discovery of the secret compartments, Mok knew that Urbina
passed a white object into the Honda. He knew that every occupant of the Honda had denied
owning the car. He knew that he found nothing in the front area and that Witherspoon had
indicated the package was “over there,” motioning toward the back. On these facts, it was
objectively reasonable for Mok to believe that he had permission to search the back passenger
compartment—Witherspoon’s initial consent to search coupled with the head movement and
eye gestures got him that far. But Mok had no objective information leading him to reasonably
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believe that Witherspoon even knew there were trap compartments, let alone that he had given
permission to remove interior panels.
¶ 35 We find instructive Holliday, 318 Ill. App. 3d 106, which Davis cites. In Holliday, officers
on patrol saw the defendant in an alley engaging in what they thought was a drug transaction.
Id. at 108. The officers went up to the defendant and asked for permission to search his person,
which he granted. Id. During the search, one of the officers “performed a ‘crotch check’ ” and
felt what he thought to be crack cocaine around the genital area based on “his experience with
drug dealers who had concealed cocaine” there. Id. The court found that the search exceeded
the scope of the defendant’s consent. Id. at 113. The court reasoned that the officer, in
requesting consent, had not “singled out any particular area of the defendant’s body.” Id.
Because the officer had failed to particularize the request, “a reasonable person would have
expected no more than a general frisk or pat-down” and “would be surprised to find an officer’s
hand grabbing his crotch.” Id.
¶ 36 Even though the court in Holliday focused on the “heightened privacy” we have in our
bodies (id. at 112), much of the reasoning applies to the search here. Officer Mok did not single
out any area of the car for inspection and received only general consent to “go ahead and
search.” Without giving Witherspoon more information, it would be unreasonable to expect
his consent to go beyond “a general frisk or pat-down” of the interior compartment. As we
have already explained, Witherspoon’s head movements and whisper that “it’s over there” only
directed Mok to the backseat area where he had only just begun to search. Mok’s testimony
reveals that Witherspoon was “trying to make some sort of indication to [him] that, without
being too specific, that there is, you know, the contraband in the back seat [sic] of the vehicle.”
Even if we were evaluating Mok’s subjective belief, his testimony shows that he understood
Witherspoon’s head movement to be a nonspecific indication to check the backseat. Without
seeking more specific consent, Mok did not have an objectively reasonable belief that
Witherspoon permitted the search to extend to the hidden compartments.
¶ 37 The Automobile Exception
¶ 38 Though Witherspoon’s actions did not provide Mok with sufficient consent to search the
trap compartments, Witherspoon’s actions did provide Mok with a crucial piece of evidence
establishing probable cause. Ordinarily, if officers believe they have probable cause to search,
the fourth amendment requires them to get a warrant. People v. Contreras, 2014 IL App (1st)
131889, ¶ 27. The United States Supreme Court has carved out an “automobile exception” to
the warrant requirement, allowing officers to “search a vehicle without a warrant where
probable cause exists to believe the automobile contains evidence of criminal activity subject
to seizure.” Id. ¶ 28 (citing People v. James, 163 Ill. 2d 302, 312 (1994)); see also California
v. Acevedo, 500 U.S. 565, 569 (1991). The exception draws on the idea that automobiles are
mobile and a driver can “render[ ] it impossible *** to obtain warrants for their search” by
absconding with the vehicle and its contents. Contreras, 2014 IL App (1st) 131889, ¶ 28.
Under the automobile exception, the search area “includes any interior compartment of the
vehicle that might reasonably contain the contraband.” Id.¶ 39 The State, relying primarily on Contreras, argues that the officers had probable cause to
believe narcotics secreted in the Honda, particularly given their background knowledge learned
from investigating Urbina. The State emphasizes that officers saw a white package enter the
car without ever seeing anyone remove it. Davis, relying on People v. Trisby, 2013 IL App
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(1st) 112552, argues that the observation of a single interaction of an unknown object does not
amount to probable cause to believe that a drug deal has taken place. Our review of these cases
reveals that the facts known to the officers, leading to the search of Davis’s car, fall somewhere
in between Contreras and Trisby.
¶ 40 Because Contreras contains a lengthy factual recitation, we only include the facts relevant
to our discussion. Local police officers working with the DEA arrested a man named Kasp,
who became an informant. Contreras, 2014 IL App (1st) 131889, ¶¶ 4, 6. Kasp identified
Contreras as his heroin supplier. Id. ¶ 6. Contreras and a codefendant (known only as Pedro)
arrived at Kasp’s house in Pedro’s car, and Kasp saw Pedro take out a brown paper bag from
a hidden compartment in the back of the car. Id. The three then went into Kasp’s house where
Contreras gave the bag, which contained heroin, to Kasp. Id. Officers followed Pedro’s car
once it left Kasp’s house. One of the officers saw Contreras (who was driving) holding a brown
paper bag; Contreras then “turned his body right reaching into the backseat area” and turned
back around without the bag in his hand. Id. ¶ 13. Another officer had already indicated that a
suspected “trap or secret compartment” was in the backseat. Id. The officers pulled the car over
after noticing that neither Contreras nor Pedro wore a seatbelt. Id. ¶ 15.
¶ 41 The officers looking in the car did not see a brown paper bag nor had they seen a brown
paper bag thrown or dropped from the car. Id. ¶¶ 14-15. The officers did a brief search and
noticed nothing in the backseat resembling the brown paper bag. Id. ¶ 17. They relocated the
car to a police station and conducted a dog sniff, which was positive for narcotics. Id. ¶¶ 19,
21. They opened a “car trap” in the backseat containing heroin, cocaine, four guns, and cash.
Id. The court concluded that this combination of facts amounted to probable cause to search
the car. Id. ¶ 35.
¶ 42 By relying on Contreras, the State inflates the information available to the officers. Unlike
Contreras, the officers that searched the Honda did not have an informant to tell them about
the narcotics activities of the targets of the search. Mok and his companions knew nothing
about Witherspoon, Jenkins, or Davis. More importantly, the officers had no knowledge about
the Honda and could not have known it had trap compartments. Also, unlike Contreras, the
officers made no direct observations of anything about the car itself or the actions of the people
inside to indicate the presence of hidden compartments. Mok could not see the package being
handed into the backseat; no testimony indicates that the officers saw anyone in the Honda
make any movements.
¶ 43 Just as the State inflates its case, Davis’s reliance on Trisby understates the information
available to the officers. In Trisby, officers on patrol saw a woman walk up to a car and hand
some money to the rear passenger. Trisby, 2013 IL App (1st) 112552, ¶ 4. That passenger then
handed “a small unknown object” to the woman. Id. The officers followed the car and pulled
it over for failing to use a turn signal. Id. ¶ 5. An officer walked up and saw the backseat
passenger (the defendant) with a $10 bill in his hand. Id. The officer had the defendant get out
of the car and reached directly into defendant’s front pocket, finding nine clear plastic baggies
containing heroin. Id. ¶¶ 5-6. The court held that “probable cause is not established by a single
hand-to-hand transaction involving an unidentified object together with a few furtive hand
movements towards a pants pocket.” Id. ¶ 17.
¶ 44 We agree with Davis’s argument that Mok was only able to observe one transaction
between Urbina and the occupants of Witherspoon’s car. We also agree that Mok was unable
to identify the object with any specificity. But, there our agreement ends. The officers in Trisby
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were on routine patrol, not part of any ongoing investigation and not experts in narcotics. See
id. ¶ 4. The context of Mok’s observations represents a distinct addition to the factual landscape
absent in Trisby.
¶ 45 The officers’ testimony shows involvement in a long-running investigation with Urbina as
its target. Cevallos had engaged in at least five or six transactions with Urbina; Mok was close
enough to see that the white package came from Urbina and went to the Honda’s occupants.
Given what the officers knew at this point, at least a possibility existed that Mok had seen a
drug transaction. The orientation of the vehicles during the transaction added to the
suspicion—Urbina pulled into his parking space and Witherspoon backed into his. While
innocent actions on their own, so parked, the entire transaction appeared designed to
intentionally conceal—when Urbina opened his door, he would block the view of the space
between the cars from one direction; when Witherspoon opened his door, he would block the
view of the space between the cars from the other.
¶ 46 Once the officers pulled around the Honda, more facts added to the suspicion. During
Mok’s initial search, consented to by Witherspoon, he did not find anything resembling the
white package. At oral argument, Davis’s counsel noted the possibility that Jenkins could have
discarded the white package because she was already out of the car when officers arrived. But,
Jenkins’s location when the officers arrived was a disputed fact. Jenkins testified that she was
already walking toward her house; Mok testified that he had to remove Jenkins from the Honda
before searching it. The trial court expressly resolved the credibility question in favor of the
officers.
¶ 47 In his petition for rehearing, Davis argues that the trial court’s factual findings suggest the
court believed Jenkins was out of the car when the officers arrived. We acknowledge that the
trial court’s recitation indicates “the woman who was in the vehicle was alighting from the
vehicle.” While the court was summarizing the testimony it referred to “the female who by this
time was out of the vehicle and almost across the street.” That was Witherspoon’s and Jenkins’s
testimony; but, as we noted, the trial court did not find either of them credible. Regardless,
whether Jenkins was seated in the Honda, “alighting from the vehicle,” or “almost across the
street,” nothing in anyone’s testimony reveals she was seen acting in a way connoting she
possessed or discarded the white object. Additionally, officers detained her and searched her.
They did not find anything. Probable cause does not require an officer’s belief that a person
has committed a crime or, by extension, that contraband is located in a particular place to be
more likely true than false. E.g., People v. Wear, 229 Ill. 2d 545, 564 (2008). That Jenkins may
have been outside the car does not render unreasonable the officer’s belief that the white object
was still inside.
¶ 48 The final significant difference between this case and Trisby involves Witherspoon
indicating that Mok search in the backseat. While Witherspoon’s actions did not extend his
consent, as we have discussed, his actions did indicate to Mok that the white package must be
hidden somewhere despite his initial search. Mok testified that he was an experienced narcotics
officer, familiar “with locations in which individuals could secrete or hide narcotics,” having
found drugs in secret compartments “numerous times.” That experience, together with the facts
we have described, amount to probable cause to search.
¶ 49 We conclude that Mok’s actions exceeded the scope of Witherspoon’s consent to search,
but by the time Mok exceeded Witherspoon’s consent, he had sufficient facts to amount to
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probable cause. Once Mok had probable cause, the search fell within the automobile exception
and was permissible without a warrant.
¶ 50 We affirm the trial court’s denial of Davis’s motion to suppress.
¶ 51 Motion to Allow Gun Evidence
¶ 52 Davis claims that the trial court’s ruling on the State’s motion to allow the gun evidence
was error. The State argues this issue has been forfeited because Davis did not raise it as an
alleged error in his motion for a new trial. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“Both
a trial objection and a written post-trial motion raising the issue are required for alleged errors
that could have been raised during trial.” (Emphases omitted.)). Davis raised two errors
concerning the trial court’s rulings on motions in limine, neither related to the introduction of
the gun evidence. Under Enoch, the issue is forfeited.
¶ 53 Davis maintains he sufficiently preserved the issue because “the improper admission of
extraneous other-crimes evidence violated Davis’[s] due process right to a fair trial,” a
condition, he says, that eliminates the need for a posttrial motion. This exception to the
forfeiture rule, known as the constitutional issue exception, allows appellate courts to review
constitutional claims that were not properly preserved at trial but that could be raised later in a
postconviction petition. People v. Cregan, 2014 IL 113600, ¶ 18. The exception advances
judicial economy, preventing extended litigation when the record contains enough to consider
the issue on direct appeal. Id. Davis, however, reads the constitutional issue exception too
broadly.
¶ 54 Of course, in a broad sense, every defendant has a constitutional right to a fair trial
protected by the due process clauses of both the United States and Illinois Constitutions. People
v. Blue, 189 Ill. 2d 99, 138 (2000) (citing U.S. Const., amend. XIV, § 1, and Ill. Const. 1970,
art. I, § 2). Nevertheless, not every error that could potentially deprive a defendant of that right
establishes constitutional error. Our supreme court regularly distinguishes between evidentiary
errors and constitutional errors. See, e.g., In re E.H., 224 Ill. 2d 172, 180-81 (2006) (outlining
distinction between harmless error tests for evidentiary errors versus constitutional errors).
Indeed, in Blue, our supreme court equated the question of whether cumulative errors deprived
a defendant of a constitutional right to a fair trial with the analysis we undertake under the
second prong of plain error. Blue, 189 Ill. 2d at 138. Determining whether a defendant has been
denied his or her right to a fair trial, while part of our “corrective action,” does not constitute
its own standard for classifying a particular error. Id. Davis has not cited, and we have not
found, a case suggesting that the question of the admissibility of evidence subsumes
constitutional magnitude.
¶ 55 We conclude that the constitutional issue exception to forfeiture does not apply, so Davis
has forfeited his claim. That said, Davis argues that we can review the trial court’s ruling on
the State’s motion in limine for second prong plain error. See, e.g., People v. Thompson, 238
Ill. 2d 598, 614 (2010) (second prong plain error implicated where alleged error “affect[s]
[defendant’s] right to a fair trial and challenge[s] the integrity of the judicial process”).
Alternatively, Davis argues that counsel was ineffective for failing to preserve the issue. Under
either alternative, we first consider whether error occurred. People v. Hensley, 2014 IL App
(1st) 120802, ¶ 47 (“the failure of a defendant to show that error occurred at all defeats both
an ineffective assistance claim and a claim of error under either prong of the plain error
doctrine”).
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¶ 56 Turning to the merits, we will affirm the trial court’s admission of other-crimes evidence
unless the trial court abused its discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003). To
demonstrate an abuse of discretion, the trial court’s decision must be “arbitrary, fanciful, or
unreasonable.” (Internal quotation marks omitted.) Id.¶ 57 Evidence of other crimes is inadmissible if its only purpose seeks to establish the
defendant’s propensity to commit crimes. People v. Thingvold, 145 Ill. 2d 441, 452 (1991).
But that evidence is admissible when “relevant to prove modus operandi, intent, identity,
motive, or absence of mistake.” Id. In the trial court, the State moved to introduce evidence of
the guns recovered from the Honda on the ground that “the combination of the guns and the
drugs *** demonstrate[s] Defendant’s intent in this case (coupled of course with the evidence
that both were discovered in a secret compartment).” The trial court admitted evidence of
“what the officers recovered,” but told the State not to “argue that to the jury about the recovery
of the guns.” Davis argues that his intent had never been at issue, rendering the admission of
the gun evidence as cumulative and prejudicial.
¶ 58 In support of this argument, Davis cites People v. Knight, 309 Ill. App. 3d 224, 227 (1999),
holding that when “[t]he defendant’s state of mind was not in controversy,” evidence of other
crimes to be inadmissible to prove intent. The State counters with People v. Cavazos, 2015 IL
App (2d) 120444, where the court rejected a similar argument because “regardless of [the]
defense, the State had to prove [the defendant]’s intent beyond a reasonable doubt.” Id. ¶ 71
(relying on People v. Heard, 187 Ill. 2d 36, 59-60 (1999)). Only a few months later, this district
interpreted Heard to the contrary and followed Knight. People v. Clark, 2015 IL App (1st)
131678, ¶¶ 33-38. In Clark, the court held that the use of “intent” in Heard was not in the
“strict legal sense,” but instead encompassed the defendant’s “overall state of mind” (id. ¶ 38),
and concluded that other-crimes evidence cannot be used to prove intent where intent is not at
issue. Id. ¶ 47.
¶ 59 We confront a split in authority about the admissibility of other-crimes evidence to help
prove intent where intent is not expressly put at issue. Actually, the split extends beyond the
districts of our appellate court. See Hubbard v. State, 422 P.3d 1260, 1264-65 (Nev. 2018)
(mentioning Clark and describing competing approaches in federal circuit courts of appeals).
Davis’s case does not require us to stake our own position because his theory at trial did not
make intent an expressly disputed issue; his primary argument characterized the police
investigation as faulty and any evidence of his involvement should not have been trusted.
¶ 60 We start with the Illinois Supreme Court’s decision in Heard. There, the defendant
murdered his ex-girlfriend and her current boyfriend. Heard, 187 Ill. 2d at 46-47. During trial,
the State introduced evidence of three incidents where the defendant had been violent toward
both of them. Id. at 57-58. The court held that the trial court did not abuse its discretion in
admitting that evidence, as it was “evidence of defendant’s *** motive and intent to harm [the
victims].” Id. at 58-59. The defendant argued, as Davis does, that “motive and intent were not
at issue.” Id. at 59. The court rejected that argument saying, “Although the evidence readily
demonstrated that the shooter intended to kill the victims, the prosecution had to prove that
defendant was the shooter. The prosecution introduced the other-crimes evidence to prove
defendant’s motive and intent to kill the victims ***.” (Emphasis in original.) Id. at 60.
¶ 61 As we have said, this court interpreted Heard’s use of “motive and intent” to refer broadly
to the defendant’s “overall state of mind” as opposed to whether the defendant intended to
cause death or great bodily harm to the victims in a legal sense. Clark, 2015 IL App (1st)
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131678, ¶ 38. We disagree with the distinction suggested by Clark, as the defendant’s state of
mind—whether we call it motive or intent—also was not at issue in Heard for two reasons.
First, the defendant’s theory of the case was not that Heard lacked a motive for harming his
ex-girlfriend; his entire defense depended on an alleged alibi. Heard, 187 Ill. 2d at 50-51(describing alibi witness testimony). So, to the extent that the Heard court zeroed in on motive
or general mental state as opposed to legal intent, its holding would be the same: other-crimes
evidence relevant to prove mental state is admissible even where that mental state is not at
issue.
¶ 62 Second, though motive can provide important context for a defendant’s actions, it is not
itself an element of a criminal offense. See People v. Easley, 148 Ill. 2d 281, 325-26 (1992)
(citing People v. Smith, 141 Ill. 2d 40, 56 (1990)). This is important. The court in Heard
focused on “the prosecution [having] to prove that defendant was the shooter” even though no
real evidentiary dispute existed about Heard’s intent. (Emphasis added.) Heard, 187 Ill. 2d at
60. We deem the Cavazos court as the better reading of Heard: evidence of other crimes can
be used to prove intent, even if intent is not put expressly at issue because the burden remains
on the prosecution to prove intent beyond a reasonable doubt regardless of whether the
defendant disputes it. Cavazos, 2015 IL App (2d) 120444, ¶ 71 (citing People v. Henderson,
142 Ill. 2d 258, 319 (1990) (prosecution entitled to prove every element of crime charged even
if defendant stipulates to facts establishing that very element)).
¶ 63 In addition, the other cases relied on by the court in Clark offer poor support for its position.
In Knight, on which Davis also relies, the court offered no authority for its assertion that the
State cannot use other crimes to prove intent where intent is not at issue. Knight, 309 Ill. App.
3d at 227. The same applies to Clark’s reliance on People v. Lenley, 345 Ill. App. 3d 399, 406-
07 (2003). Were we to embrace the reasoning in Knight, Lenley, and Clark, a defendant could
deprive the State of its right to introduce relevant, competent evidence simply by staying silent
about certain elements of the offense for which he or she has been charged. That is out of step
with the high burden placed on the State in a criminal prosecution. We hold, in accordance
with Cavazos, that the State can introduce otherwise admissible other-crimes evidence to prove
intent even where the defendant does not put intent directly in issue.
¶ 64 We also agree with the State that the other-crimes evidence—possession of firearms—
relates to the issue of Davis’s intent to distribute the cocaine. Illinois courts include weapons
on the list of seven generally relevant factors to proving intent to deliver: (1) whether the
quantity of drugs exceeds an amount for personal use; (2) the degree of purity of the controlled
substance; (3) possession of weapons; (4) possession of large amounts of cash; (5) possession
of police scanners, beepers, or cell phones; (6) possession of drug paraphernalia; and (7) the
manner in which the drugs are packaged. People v. Chavez, 327 Ill. App. 3d 18, 25 (2001).
¶ 65 We agree that the 989-gram brick of cocaine found in the Honda was likely not for personal
use, but no testimony was introduced about the cocaine’s purity or the presence of electronic
communication devices. And the persuasiveness of evidence of some paraphernalia—a scale—
diminished severely when Gamboa testified that the scale was somehow destroyed before trial.
Davis had $472 on him, which, while perhaps more than an average person might possess, falls
within the realm of the ordinary. Finally, the packaging of the cocaine in one large brick, at the
very least, does not indicate imminent delivery. Cf. People v. Robinson, 167 Ill. 2d 397, 411-
12 (1995) (collecting cases describing narcotics contained in multiple individual packages).
We find that the gun evidence was relevant and important circumstantial evidence to support
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an inference that Davis intended to deliver the cocaine. We have held similarly. See People v.
Jones, 269 Ill. App. 3d 797, 803 (1994) (“Not only is a reasonable inference of intent permitted
when the amount of the controlled substance possessed could not be designed for personal
consumption [citation], but the inference may be enhanced by the presence of weapons and
large amounts of cash.”).
¶ 66 Davis goes on to argue that even if the gun evidence was relevant, the manner in which it
was introduced was prejudicial. He asserts that the “use of two separate witnesses to testify
about the recovery of the guns” along with the in-court identification of the gun exhibits created
a minitrial on the issue of Davis’s possession of guns. We disagree.
¶ 67 When a court admits relevant other-crimes evidence, it “should carefully limit the details
to what is necessary to illuminate the issue for which the other crime was introduced.” People
v. Nunley, 271 Ill. App. 3d 427, 432 (1995). The proceedings should not devolve into a minitrial
on the uncharged offense. Id. Mok’s testimony about the recovery of the guns was brief,
covering about five pages of trial transcript. He did not go into excessive detail and gave basic
information about the guns and ammunition he found. The second witness to testify about the
guns, Gamboa, merely established the chain of custody for the items found in the car. For the
gun evidence to have served its intended purpose of proving Davis’s intent to deliver, the State
had to establish that the gun evidence introduced at trial was the gun evidence found in the
Honda. We do not see the manner in which the gun evidence as introduced going beyond the
narrow purpose for which it was admitted.
¶ 68 Every case that Davis cites entailed a more heavy-handed emphasis on the other-crimes
evidence. In Nunley, the State called three witnesses, two of whom testified to gruesome details
of the stabbing of a person and killing of a dog that led to the defendant’s arrest for the separate
murder for which he was on trial. Id. In People v. Bedoya, 325 Ill. App. 3d 926, 940 (2001),
the State presented 7 witnesses about previous shootings, introduced 22 photographs, and
admitted bullets and bullet casings as exhibits. In People v. Brown, 319 Ill. App. 3d 89, 97
(2001), 6 of the State’s 12 witnesses testified about the other-crimes evidence, 4 of them
testifying exclusively about it. We do not agree that the gun evidence in Davis’s case similarly
shifted focus from the crime; the possession of the guns was part of the same course of conduct
as the possession of the drugs. See People v. Pikes, 2013 IL 115171, ¶ 20 (other-crimes
evidence admissible where “it is part of the ‘continuing narrative’ of the charged crime”
because “[s]uch uncharged crimes do not constitute separate, distinct, and disconnected
crimes”).
¶ 69 The trial court properly allowed the State to admit evidence of Davis’s concurrent gun
possession and properly limited the evidence presented to information necessary to prove that
possession. Having found no error, there can be no plain error. People v. Castillo, 2018 IL App
(1st) 153147, ¶ 43. We affirm the trial court’s admission of the gun evidence.
¶ 70 Sentencing
¶ 71 Finally, Davis argues that we should reduce his 25-year sentence to the 15-year statutory
minimum or remand for resentencing for two reasons: (i) the trial court abused its discretion
and imposed an excessive sentence and, alternatively, (ii) the trial court failed to adequately
explain its reasons for imposing the 25-year sentence. We disagree with both arguments. We
review a trial court’s sentencing determination for an abuse of discretion. People v. Stacey,
193 Ill. 2d 203, 209-10 (2000). An abuse of discretion occurs when the sentence (i) is
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“manifestly unjust or palpably erroneous,” (ii) plainly departs from the spirit of the law, or (iii)
is disproportionate to the nature and seriousness of the offense. People v. Anderson, 112 Ill. 2d
39, 46 (1986).
¶ 72 Possession with intent to deliver a controlled substance classifies as a Class X felony, with
punishments set out in the Illinois Controlled Substances Act (720 ILCS 570/401(a) (West
2012)). The sentence for possessing “900 grams or more of any substance containing cocaine”
ranges from “not less than 15 years and not more than 60 years.” Id. § 401(a)(2)(D).
¶ 73 Davis argues the trial court abused its discretion by not adequately considering mitigating
factors when imposing the 25-year sentence. He contends the nonviolent nature of the offense,
his lack of criminal background, his substance use and mental health problems, and his family
connections justify the minimum. Davis additionally argues that the trial court improperly
considered the amount and dangerousness of cocaine when determining the seriousness of his
crime because the legislature took that factor into account when creating the statutory
sentencing range. The State responds that the seriousness of the crime justified sentencing
Davis above the minimum.
¶ 74 Davis believes that the trial court should have given more weight to the mitigating factors
in the PSI. When determining an appropriate sentence, the trial court weighs all the relevant
factors. Stacey, 193 Ill. 2d at 209. These factors include the nature of the offense, the
defendant’s criminal history, any mental health issues, and social environment, among others.
People v. Quintana, 332 Ill. App. 3d 96, 109 (2002). Absent evidence in the record, we
presume the trial court took mitigating factors presented at sentencing into account. People v.
Willis, 2013 IL App (1st) 110233, ¶ 123. Even if we would have weighed the factors
differently, we will not substitute our judgment for the trial court’s. Id. ¶ 122.
¶ 75 The trial court expressly considered Davis’s lack of a criminal history. The trial court
mentioned it reviewed the PSI and the information about Davis’s background, including his
substance use and mental health history. The trial court was not obligated, however, to give
the mitigating evidence in the PSI greater weight than the seriousness of the offense. People v.
Sims, 403 Ill. App. 3d 9, 24 (2010). Given the crime’s seriousness and the harm threatened by
Davis’s conduct, we cannot say the trial court abused its discretion, even though this was his
first conviction.
¶ 76 We also cannot say that the trial court departed from the spirit or purpose of the law. The
officers found Davis in possession of a kilogram of cocaine, three loaded firearms, and a
substantial amount of ammunition. Davis cites this court’s decision in People v. Busse, 2016
IL App (1st) 142941, ¶¶ 15-17, to support excessiveness due to the nonviolent nature of his
offense. In Busse, this court found a 12-year sentence for burglary greatly departed from the
spirit and purpose of the law where a defendant stole $44 worth of quarters from vending
machines. Id. ¶ 29. Unlike Davis, who possessed three loaded firearms, Busse was unarmed.
Id. Twenty-five years does not frustrate the spirit and purpose of the law, unlike a defendant
given a twelve-year sentence for a petty crime.
¶ 77 The seriousness of the offense serves as the most important factor. Willis, 2013 IL App
(1st) 110233, ¶ 123; Ill. Const. 1970, art. I, § 11; 730 ILCS 5/1-1-2 (West 2014). Chicago
police and federal agents found Davis with nearly a kilogram of cocaine, three handguns,
several magazines, and live cartridges. Davis admitted to purchasing two handguns and
cocaine to sell. The seriousness of Davis’s crime cannot be doubted.
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¶ 78 Davis correctly asserts that the potential societal danger posed by the quantity of drugs
cannot be employed as an aggravating factor; the legislature used this factor when creating the
sentencing range. People v. Corn, 358 Ill. App. 3d 825, 827-28 (2005). A sentencing judge,
however, can properly consider the quantity of drugs as an aggravating factor when
determining the seriousness of the offense. People v. Garcia, 2018 IL App (4th) 170339, ¶¶ 41-
42. The legislature explicitly allows trial courts to do so. 720 ILCS 570/411(2) (West 2012).
¶ 79 The trial court imposed a sentence on the lower end of the 15- to 60-year range. Any
amount in excess of the statutory minimum of 900 grams can justify a lengthier sentence.
Davis’s sentence resides 10 years higher than the minimum and 35 years lower than the
maximum. On this record, we cannot say that the trial court abused its discretion.
¶ 80 The trial court also can consider the specific degree of harm threatened by the defendant’s
conduct. People v. Robinson, 391 Ill. App. 3d 822, 844 (2009). The record, however, does not
show that the trial judge focused on the general danger to society posed by Davis’s conduct.
Instead, the trial judge stated that he considered the facts along with Davis’s background. Even
though this was Davis’s first conviction, Davis admitted that he sold cocaine four to six times
before. Davis also possessed three loaded handguns, three regular magazines, an extended
magazine with double capacity, and live cartridges. Taken together, Davis’s conduct posed a
potential for specific harm that justifies aggravating his sentence.
¶ 81 Absent evidence to rebut the presumption that the trial judge considered all of the factors
in aggravation and mitigation, we defer to the trial court’s judgment
¶ 82 Davis alternatively argues that his case should be remanded for resentencing because the
trial judge failed to adequately state his reasons for imposing the sentence. Davis acknowledges
that Illinois law does not require a judge to state reasons for imposing a sentence. People v.
Davis, 93 Ill. 2d 155, 157-58, 162 (1982) (interpreting “shall” in section 5-8-1(b) as directory,
not mandatory, where Unified Code of Corrections requires “ ‘sentencing judge in each felony
conviction shall set forth his reasons for imposing the particular sentence he enters in the
case’ ” (quoting Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1(b) (now codified at 730 ILCS 5/5-4.5-
50 (West 2014))). We affirm and note that even though Illinois law does not require it, the trial
judge adequately stated his reasons.
¶ 83 Since Davis in 1982, appellate justices have encouraged trial courts to more thoroughly
discuss their reasons for imposing sentences so as to aid appellate review and enhance the
perception of justice. People v. Jackson, 375 Ill. App. 3d 796, 805 (2007) (McDade, J.,
specially concurring); id. at 809 (Wright, J., concurring in part and dissenting in part); People
v. Bryant, 2016 IL App (1st) 140421, ¶¶ 26-35 (Hyman, J., specially concurring). We continue
to urge trial courts to thoroughly explain the sentences they impose.
¶ 84 The trial judge stated, “Considering the fact that you have no prior background and
considering the facts in this case, I think the appropriate sentence is a lesser in the range,
therefore, I am going to give you 25 years.” The judge listed the amount of drugs found in
Davis’s possession, the conditions under which the drugs were recovered, and Davis’s
background, and referred to the PSI when imposing the sentence. All of this involves more
than a bare-bones recitation regarding the factors in mitigation and aggravation. The judge
offered enough insight into the sentence to allow for adequate appellate review.
¶ 85 Affirmed.
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