{ "id": 5107438, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GUTIERREZ, Defendant-Appellant", "name_abbreviation": "People v. Gutierrez", "decision_date": "1993-04-14", "docket_number": "No. 5-91-0375", "first_page": "867", "last_page": "871", "citations": [ { "type": "official", "cite": "243 Ill. App. 3d 867" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "550 N.E.2d 616", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "618" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2500516 ], "weight": 2, "pin_cites": [ { "page": "895-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0892-01" ] }, { "cite": "320 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "5" } ], "opinion_index": 0 }, { "cite": "59 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958938 ], "year": 1976, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0352-01" ] }, { "cite": "557 N.E.2d 1277", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "1279" } ], "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 1008", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467814 ], "year": 1974, "pin_cites": [ { "page": "1012" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/1008-01" ] }, { "cite": "358 N.E.2d 375", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "44 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815960 ], "weight": 2, "pin_cites": [ { "page": "514" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0510-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "357" }, { "page": "585" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] } ], "analysis": { "cardinality": 466, "char_count": 8069, "ocr_confidence": 0.779, "pagerank": { "raw": 5.807366253629069e-08, "percentile": 0.3616409682572227 }, "sha256": "b0d88c00b6583c70cc82ffc1a094dd06ee3f44e268d5f857b10a76c6b52b4732", "simhash": "1:9f63dcce09dc38f8", "word_count": 1338 }, "last_updated": "2023-07-14T20:55:01.285518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GUTIERREZ, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nAfter a bench trial based on stipulated evidence in the circuit court of Franklin County, defendant, Jerry Gutierrez, was found to have committed the offenses of unlawful cannabis trafficking in that he knowingly brought 2,500 or more grams of cannabis into the State of Illinois for purposes of delivering it to Indiana in violation of section 5.1 of the Cannabis Control Act (the Act) (Ill. Rev. Stat. 1989, ch. 56%, par. 705.1); unlawful possession of cannabis with intent to deliver in that he knowingly and unlawfully possessed with intent to deliver more than 500 grams of a substance containing cannabis in violation of section 5(e) of the Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(e)); and unlawful possession of cannabis in that he knowingly and unlawfully had in his possession more than 500 grams of a substance containing cannabis in violation of section 4(e) of the Act (Ill. Rev. Stat. 1989, ch. 56x/2, par. 704(e)). Defendant was sentenced to 10 years in the Department of Corrections on count I, unlawful cannabis trafficking, and was fined $128,500. Defendant appeals, contending his motion to suppress should have been granted because he did not consent to the search of the trunk of his automobile where the cannabis was found. We affirm.\nAt approximately 12:07 p.m. on December 31, 1990, defendant was stopped by an Illinois State trooper, Michael Swift, on Interstate 57 northbound at milepost 74 for traveling too fast for conditions (the road was icy) and for following too closely. Defendant was issued a written warning for improper lane usage, traveling too fast for conditions, and following too closely. Defendant was traveling alone, and Swift noted that he was nervous upon questioning. Swift questioned defendant as to his destination. Defendant told Swift he was traveling from Texas to Indiana to visit his sister. At the scene, Swift requested a check of defendant\u2019s criminal history by radio. The check revealed that defendant was previously arrested for possession of cocaine. Swift then asked defendant whether he would agree to a search of his vehicle. According to Swift, defendant consented both orally and by signing a written consent form which read as follows:\nI understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.\u201d\nSwift testified that he did not ask defendant for a limited search of the passenger compartment but requested a search of the entire vehicle.\nA search of the vehicle was conducted. Upon opening the trunk of defendant\u2019s car, Swift smelled a strong odor of cannabis. Swift opened a suitcase found in the trunk of defendant\u2019s car and discovered 25,704 grams of a substance later identified as cannabis. Swift stated that defendant told him the cannabis was his and that he intended to sell it in Indiana. Defendant testified that after he was given warning tickets, Trooper Swift asked him if he could search his car for \u201cweapons.\u201d Defendant was given a consent form to sign, which he did. According to defendant, he did not read the form but did ask Swift what he intended to search. Swift replied, \u201cThe passenger area.\u201d Defendant then signed the form and told Swift to \u201cgo ahead.\u201d\nDefense counsel filed a motion to suppress before trial. A hearing was held on defendant\u2019s motion. Ultimately, the trial court denied defendant\u2019s motion on the basis that there was probable cause for the traffic stop and, while there was no probable cause to search the vehicle, defendant consented to the search of his vehicle. The trial court specifically stated:\n\u201cThe defendant also contends that the search of the defendant\u2019s vehicle was done without probable cause. The officer conducted a complete search of the vehicle, including the trunk, after warning tickets were issued to the defendant.\nIt is clear that there was no probable cause, at that point, for the search of the defendant\u2019s automobile. The basis of the search by the police officer was not because probable cause existed prior to the search, but this search was based on a written Consent to Search signed by the defendant at the time the warning citations were issued to him. The defendant consented to the search of the vehicle by description, which consent included luggage and contents thereof, as more fully shown by the Consent introduced in evidence as People\u2019s Exhibit Number 2.\u201d\nAfter the trial court denied defendant\u2019s motion to suppress, the parties agreed to a stipulated bench trial. Defendant was ultimately convicted and sentenced on count I.\nIt is well settled that \u201csearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment \u2014 subject only to a few specifically established and well-delineated exceptions.\u201d (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514; People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.) A person may, however, consent to a search conducted without a search warrant, but in order for the consent to be considered a waiver of the person\u2019s fourth amendment rights, the State must prove by a preponderance of the evidence that the consent was voluntarily given. (People v. Harris (1990), 199 Ill. App. 3d 1008, 1012, 557 N.E.2d 1277, 1279.) Where a search is justified on the basis of consent, the trial court\u2019s finding will not be disturbed on appeal unless it is clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5; People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.\nThe instant case is analogous to People v. Woolery (1990), 193 Ill. App. 3d 892, 550 N.E.2d 616, in which our colleagues on the Fourth District Appellate Court held that a defendant\u2019s consent to search his automobile was authority to search the entire vehicle, including the trunk. In Woolery, as here, there was conflict between the testimony of the arresting officer and the defendant. The defendant testified he made it clear that consent was for the passenger compartment only, whereas the arresting officer testified that no such limitation was given. The Woolery court noted that the trial court believed the officer\u2019s testimony over the defendant\u2019s and that \u201c[t]he trial court\u2019s determination that consent to search the entire vehicle was voluntarily given was not clearly unreasonable.\u201d 193 Ill. App. 3d at 895-96, 550 N.E.2d at 618.\nHere, we cannot agree with defendant that the trial court\u2019s finding that the trooper\u2019s testimony was more credible than defendant\u2019s was manifestly erroneous. Instead, we agree with the Woolery court that a defendant can voluntarily consent to an otherwise improper search knowing that such a search may well result in the discovery of a large quantity of drugs. We have carefully reviewed the record in this case and cannot say the trial court\u2019s determination was incorrect. While there was conflict in the testimony between defendant and Trooper Swift as to what the search was meant to entail, the consent form clearly shows that defendant agreed to a search of the entire vehicle. The consent form does not limit the area to be searched to the passenger compartment.\nFor the foregoing reasons, the judgment of the circuit court of Franklin County is affirmed.\nAffirmed.\nCHAPMAN, P.J., and LEWIS, J., concur.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, and G. Edward Moorman, of Alton, for appellant.", "Terry M. Green, State\u2019s Attorney, of Benton (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GUTIERREZ, Defendant-Appellant.\nFifth District\nNo. 5\u201491\u20140375\nOpinion filed April 14, 1993.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, and G. Edward Moorman, of Alton, for appellant.\nTerry M. Green, State\u2019s Attorney, of Benton (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0867-01", "first_page_order": 887, "last_page_order": 891 }