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Appellate Court Date: 2022.04.01
11:39:14 -05'00'
People v. Banta, 2021 IL App (4th) 180761
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption GERMAL L. BANTA, Defendant-Appellant.
District & No. Fourth District
No. 4-18-0761
Filed March 17, 2021
Rehearing denied April 8, 2021
Decision Under Appeal from the Circuit Court of Sangamon County, No. 17-CF-716;
Review the Hon. Leslie J. Graves, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Catherine K. Hart, and Bryan J.W. McIntyre, of State
Appeal Appellate Defender’s Office, of Springfield, for appellant.
Daniel K. Wright, State’s Attorney, of Springfield (Patrick Delfino,
David J. Robinson, and Benjamin M. Sardinas, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE DeARMOND delivered the judgment of the court, with
opinion.
Justices Cavanagh and Harris concurred in the judgment and opinion.
OPINION
¶1 In July 2017, defendant Germal L. Banta was charged with four drug-related offenses,
including manufacture and delivery of a controlled substance, a Class X felony. In March 2018,
after a hearing on defendant’s motion to suppress evidence, the trial court denied the motion,
finding defendant voluntarily consented to the police search of his person.
¶2 In August 2018, defendant was convicted of the Class X felony after a stipulated bench
trial, and the trial court set the matter for sentencing in October 2018. At that time, defendant
was sentenced to nine years in the Illinois Department of Corrections (DOC).
¶3 On appeal, defendant argues (1) the trial court erred by denying his motion to suppress
because (a) he did not consent to a search of his person by the police and (b) his illegal
detention and subsequent frisk vitiated any later consent; (2) the search was unconstitutionally
invasive and exceeded the scope of any implied consent; (3) the trial court’s in camera viewing
of body camera videos admitted during the motion to suppress constitutes second-prong plain
error; (4) the evidence was insufficient to find defendant guilty of delivery—rather than
possession—of heroin; and (5) the trial court committed plain error at sentencing by
(a) considering factors inherent in the offense, (b) refusing to properly consider mitigating
evidence, (c) making disparaging remarks about defendant, and (d) giving undue weight to
defendant’s criminal history in aggravation.
¶4 I. BACKGROUND
¶5 In July 2017, the State charged defendant in a four-count complaint with two counts of
manufacture/delivery of a controlled substance, one a Class X felony involving heroin (720
ILCS 570/401(a)(1)(A) (West 2016)) and the other a Class 1 felony involving cocaine (720
ILCS 570/401(c)(2) (West 2016)), and two counts of unlawful possession of a controlled
substance (720 ILCS 570/402(a)(1)(A) (West 2016)), one count a Class 1 felony and the other
a Class 4 felony.
¶6 In November 2017, defendant moved to suppress evidence, claiming, in part, police had
no reasonable suspicion to detain and search defendant and the controlled substance found on
defendant’s person was illegally obtained since police retrieved it from defendant’s person
without consent and without first procuring a warrant.
¶7 A. Motion to Suppress Hearing
¶8 During the March 2018 suppression hearing, the trial court heard testimony from
defendant, Illinois State Police Trooper Clayton Chapman, and Springfield police detective
Michael Raynolds. The witnesses were in agreement that defendant was a passenger in a car
lawfully stopped for speeding on the interstate and the driver did not have a license. While
Trooper Chapman spoke to the driver, another trooper arrived and performed a K-9 dog sniff,
alerting to the presence of drugs inside the vehicle. Defendant testified the trooper approached
and asked him to step out of the vehicle and allow him to perform a “pat down” for weapons.
Defendant stated he consented to the “pat down,” after which the trooper ordered him to stand
in the grass next to other officers (defendant said “like six or seven”) while they searched the
vehicle.
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¶9 Defendant testified the police searched the car “for almost an hour” without finding
anything. Nothing was found on the driver of the vehicle, and no testimony regarding the
driver’s statements, if any, was introduced at the hearing. Defendant recalled Trooper
Chapman approached him after searching the vehicle and said, “I want to re-search you again.”
Defendant said he told Chapman, “No, you already searched me. Was anything found or nothin
[sic] at all? Can I go?”
¶ 10 He claimed one of the officers pulled his Taser and told him to put his hands up, which he
did. Trooper Chapman grabbed defendant’s hands behind his head and started sliding his hand
up and down between his buttocks “like a credit card.” Defendant said he “jumped away from
him” and said, “you’re feeling on me. This is not a search.” He asked for someone other than
Trooper Chapman to continue searching him because he claimed Chapman continued to stick
his hand up defendant’s rectum during the search. Defendant testified that “[t]he officer put
me in cuffs” and began walking him as if to put him in the squad car and then placed his feet
in front of defendant, causing him to fall down. Officers pulled down defendant’s pants and
held him down while one of the officers pulled the drugs out of his “rectum.”
¶ 11 Trooper Chapman, a 14-year veteran with the Illinois State Police, testified he initially
spoke with the driver. He eventually determined neither the driver nor defendant had a valid
driver’s license. On cross-examination, Chapman acknowledged defendant was never free to
leave prior to the search he and another officer later conducted of defendant. After learning the
K-9 alerted on the vehicle, Chapman and the K-9 handler searched the vehicle, finding no
contraband. As a result, the decision was made to search the driver and passenger again.
Chapman approached defendant to conduct the search. His testimony then proceeded as
follows:
“[ASSISTANT STATE’S ATTORNEY]: And did you ask his consent to search his
person again?
A. Yes.
Q. And what was his response?
A. He did not tell me no.”
When Chapman began searching defendant, he said he felt an object in between defendant’s
buttocks, which he “believed to be illegal drugs.” Chapman testified defendant “reacted to me
and believed that I was rubbing him and felt uncomfortable, and didn’t want me to search him
anymore.”
¶ 12 Detective Raynolds, a detective with the Springfield street crimes unit, testified he assisted
the Illinois State Police during the traffic stop. Without providing further explanation, he stated
he was “assigned to assist DEA and Illinois State Police in locating a vehicle and possibly
stopping it.” He was standing next to defendant when he saw Trooper Chapman search him.
He heard Chapman say he found something and heard defendant ask to have another officer
conduct the search. That other officer, Officer Reidy, then continued with the search and said
he found something. Defendant was placed in handcuffs, and Detective Raynolds then began
searching and felt a “rock-like substance” in defendant’s buttocks, which he believed to be
narcotics. Detective Raynolds stated he attempted to retrieve the object but defendant “kept
moving and clinching his buttocks.” After defendant continued to clench his buttocks, police
forced defendant to the ground. Detective Raynolds continued to search defendant, and he
pulled the drugs from defendant’s buttocks. While defendant was handcuffed, Raynolds
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testified he heard defendant say “he had a little dope on him.” On cross-examination, he
confirmed, when he arrived, there was no indication defendant had committed any crime, but
he agreed with Trooper Chapman that defendant was not free to leave. Raynolds clarified that,
contrary to defendant’s assertion, the object, which was a baseball-sized plastic Baggie, was
not inside defendant’s rectum but between his butt cheeks, which is what made it possible for
the officers to feel it while conducting the search.
¶ 13 Both parties stipulated to the body camera videos, with defense counsel requesting the
court “review it at your leisure after the evidence.” The trial court agreed to allow the parties
to submit written arguments and continued the case to review the body camera videos and
conduct some of its own research before ruling on the motion to suppress.
¶ 14 B. Body Camera
¶ 15 The body camera video containing the interaction between Trooper Chapman and
defendant does not come from Trooper Chapman but from Detective Raynolds. Regrettably,
there is no audio on Raynolds’s body camera video during this initial encounter to verify if
defendant protested the search like he says, or what defendant said.
¶ 16 After defendant exits the car, Trooper Chapman conducts a “pat down” search. Defendant
then stands off to the side of the vehicle in a grassy area between two other officers while the
troopers search the vehicle. After a search of the vehicle, Trooper Chapman searches the driver
and then approaches defendant while two officers stand on either side of him. There is a
conversation observed between the two of them, but without audio, there is no record of what
was said. As they speak with each other, defendant can be seen making hand gestures. Trooper
Chapman makes a motion appearing to direct or order defendant to turn around. Defendant
complies, turns around, and puts his hands behind his back like he is waiting to be handcuffed.
The trooper does not place handcuffs on him at this time but begins to search defendant starting
with the back of his pants, and defendant puts his hands up. Shortly after Trooper Chapman
begins searching defendant, Detective Raynolds walks away, and defendant and Trooper
Chapman are no longer in view.
¶ 17 Officer Raynolds then approaches defendant and Trooper Chapman and activates the audio
on his body camera. Defendant can be heard protesting the invasiveness of Chapman’s search
and asks that someone else search him. He is eventually handcuffed, and he continues to protest
as he starts to physically struggle with the officers. Eventually he is taken to the ground, and
the drugs are extracted from his buttocks by one of the officers.
¶ 18 The trial court entered its order denying defendant’s motion to suppress. The court
reasoned as follows:
“That Trooper Chapman had probable cause to stop the vehicle and the temporary
detention of the Defendant was lawful due to his consent to search his person.
That the search of the Defendant did not require a warrant, due to the Defendant
consenting to the search and there was no physical intrusion into the Defendant’s
body.”
¶ 19 In August 2018, defendant waived a jury trial, and the State and defense counsel proceeded
by way of a stipulated bench trial. At the outset of the trial, the State dismissed counts II and
IV, proceeding instead on only counts I and III (manufacture/delivery of heroin and possession
of heroin). The trial court found defendant guilty of the manufacture/delivery of heroin (the
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Class X felony), and the matter was set for sentencing in November 2018. At sentencing, the
trial court sentenced defendant to nine years in DOC. Defense counsel did not take issue with
the sentence, stating: “We’re not appealing the sentence, we’re appealing the finding of guilt
and the denial of the motion to suppress.”
¶ 20 This appeal followed.
¶ 21 II. ANALYSIS
¶ 22 A. Voluntary Consent
¶ 23 Defendant’s claims of error relating to the suppression motion focus on the lack of evidence
of defendant’s consent to a search of his person, the effect of an unreasonably prolonged
detention on any subsequent consent, and an unconstitutionally invasive search. We see the
case being decided on whether defendant provided voluntary consent for police to conduct a
warrantless search of his person after a lawful traffic stop. Because the State failed to prove
defendant provided either verbal or nonverbal consent for a warrantless search of his person,
we reverse the trial court’s order denying defendant’s motion to suppress.
¶ 24 A bifurcated standard of review is employed when reviewing a trial court’s ruling on a
motion to suppress. People v. Holmes, 2017 IL 120407, ¶ 9,
90 N.E.3d 412. The trial court’s
factual findings are accorded great deference and will be reversed only if they are against the
manifest weight of the evidence. People v. Almond, 2015 IL 113817, ¶ 55,
32 N.E.3d 535. We
review de novo the trial court’s ruling on the suppression of the evidence. Almond, 2015 IL
113817, ¶ 55.
¶ 25 The State has the burden of proving the defendant gave consent and that it was voluntary.
People v. Anthony, 198 Ill. 2d 194, 202,
761 N.E.2d 1188, 1192 (2001); see also People v.
White, 117 Ill. 2d 194, 221,
512 N.E.2d 677, 687 (1987) (stating the voluntariness of the
consent is a question of fact determined from the totality of the circumstances and the State
bears the burden of proving the consent was truly voluntary). Because the voluntariness of
consent is a factual question, we will uphold the trial court’s finding of voluntariness unless
the finding is manifestly erroneous. People v. Harrell, 226 Ill. App. 3d 866, 872,
589 N.E.2d
943, 947 (1992). “Manifest error” means error that is “clearly evident, plain, and indisputable.”
People v. Ruiz, 177 Ill. 2d 368, 384-85,
686 N.E.2d 574, 582 (1997). “A defendant’s consent
is invalid unless it is voluntary, and, to be voluntary, consent must be given freely without
duress or coercion (either express or implied).” (Internal quotation marks omitted.) People v.
Terry, 379 Ill. App. 3d 288, 296,
883 N.E.2d 716, 723 (2008). “Consent must be received, not
extracted ‘by explicit or implicit means, by implied threat or covert force.’ ” Anthony, 198 Ill.
2d at 202 (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 228 (1973)). In Terry, we
explained how the circumstances surrounding the consent given must be examined to
determine if it was coerced or if, where nonverbal consent is claimed, the defendant’s actions
were intended as consent as opposed to “mere acquiescence to apparent authority.” (Internal
quotation marks omitted.) Terry, 379 Ill. App. 3d at 297.
¶ 26 1. Anthony
¶ 27 Defendant relies, in part, on Anthony to support his claim the trial court erred in denying
his motion to suppress because the State failed to establish voluntary consent.
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¶ 28 In Anthony, as part of a community policing initiative, police stopped the defendant coming
out of an apartment complex. Anthony, 198 Ill. 2d at 197. After a brief conversation about his
presence in the neighborhood, the officer testified that the defendant “was nervous,” “his hands
were shaking,” and he kept putting his hands in his pockets and pulling them out. Anthony, 198
Ill. 2d at 198. Once the defendant confirmed he had no weapons on him, the officer requested
permission to search him. The defendant did not give verbal consent but spread his legs apart
and put his hands on top of his head, as if assuming “the position” to be searched. Police
searched him and found cocaine in his pocket. The officer applied no force and never
threatened him with a weapon. Anthony, 198 Ill. 2d at 198-99. The trial court granted the
defendant’s motion to suppress based on a lack of probable cause. Anthony, 198 Ill. 2d at 199.
¶ 29 On appeal, we reversed the trial court’s ruling, based not only on the nature of the stop but
also because defendant consented to the search by spreading his legs, putting his hands on his
head, and never protesting. See People v. Anthony, No. 4-99-0708 (2000) (unpublished order
under Illinois Supreme Court Rule 23). In reversing our judgment, the supreme court discussed
the applicable law surrounding a voluntary warrantless search and found “a search conducted
with a defendant’s voluntary consent but without a warrant does not violate the fourth
amendment.” Anthony, 198 Ill. 2d at 202 (citing Bustamonte,
412 U.S. at 222). “The validity
of a consent search depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202
(citing People v. Bean, 84 Ill. 2d 64, 69,
417 N.E.2d 608, 611 (1981)). It further noted a
defendant may convey consent to search by nonverbal conduct. Anthony, 198 Ill. 2d at 202
(citing In re M.N., 268 Ill. App. 3d 893, 897,
645 N.E.2d 499, 502-03 (1994), and People v.
Kessler, 147 Ill. App. 3d 237, 241,
497 N.E.2d 1323, 1325 (1986)). However, as we said later
in Terry, “mere acquiescence to apparent authority is not necessarily consent.” (Internal
quotation marks omitted.) Terry, 379 Ill. App. 3d at 297; see also People v. Kelly,
76 Ill. App.
3d 80, 87 (1979) (stating passive submission to authority is not the voluntary relinquishment
of a constitutional right); Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (holding the
prosecution’s burden to prove consent was voluntary “cannot be discharged by showing no
more than acquiescence to a claim of lawful authority”); Anthony, 198 Ill. 2d at 202.
¶ 30 The Anthony court concluded, “In the case of nonverbal conduct, where dueling inferences
so easily arise from a single ambiguous gesture, the defendant’s intention to surrender this
valuable constitutional right should be unmistakably clear.” (Emphasis added.) Anthony, 198
Ill. 2d at 203. It found defendant’s “ambiguous gesture” could be nothing more than
submission to authority, which does not constitute voluntary consent. Anthony, 198 Ill. 2d at
203-04.
¶ 31 2. Post-Anthony Cases (Raibley and Terry)
¶ 32 We analyzed Anthony for the issue of nonverbal consent in both People v. Raibley,
338 Ill.
App. 3d 692,
788 N.E.2d 1221 (2003), and Terry, referenced above.
¶ 33 In Raibley, we found favor with the supreme court’s holding in Anthony that acquiescence
to a police search, coupled with an ambiguous gesture, did not constitute voluntary consent, as
it “was not defendant’s responsibility to protest an illegal search or seizure; it was the police’s
responsibility to refrain from a search or seizure until defendant gave his clear, voluntary
consent.” Raibley, 338 Ill. App. 3d at 702-03.
¶ 34 In Raibley, we found the defendant’s “shrug” when police asked if they could search his
truck did not constitute voluntary consent because his consent had to be “ ‘unmistakably
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clear’ ” from any “ ‘nonverbal conduct.’ ” Raibley, 338 Ill. App. 3d at 701 (quoting Anthony,
198 Ill. 2d at 203).
¶ 35 In Terry, mentioned above, we found the defendant consented as the result of a series of
actions consisting of more than merely “assuming the position.” After the police asked the
defendant if police could search him, the defendant placed his hands on the truck and spread
his legs apart. The officer then asked again if he could search the defendant, to which he
responded, “You got to go ahead and do what you got to do.” When the officer inquired once
more, “Does that mean I can search you[?]” the defendant said, “[H]ere[,] let me help you out”
and began removing items from his coat and placing them on top of the truck. (Internal
quotation marks omitted.) Terry, 379 Ill. App. 3d at 297. It was only then the officer began his
search. Based on this set of facts, we found the defendant’s conduct was “not merely a shrug”
or “an ambiguous assumption of the position” like Raibley and Anthony. Rather, the defendant
voluntarily consented to the search based on the totality of his words and conduct. Terry, 379
Ill. App. 3d at 297-98.
¶ 36 The case before us is unlike Terry, and more like Anthony and Raibley. The only evidence
of defendant’s “voluntary” consent was when Trooper Chapman asked if he could search
defendant and, according to Chapman, defendant “did not tell me no.” It is noteworthy that,
after telling the prosecutor he asked defendant for consent to search his person again, when the
State asked, “And what was his response?” Chapman merely responded, “He did not tell me
no,” which is not actually responsive to the question. What did he say? Although the video has
no audio, we are asked to glean from gestures and body language whether defendant gave his
consent to a search of his person, but the burden is not his. Remember, “where dueling
inferences so easily arise from a single ambiguous gesture, the defendant’s intention to
surrender this valuable constitutional right should be unmistakably clear.” (Emphasis added.)
Anthony, 198 Ill. 2d at 203.
¶ 37 Defendant testified that he said “no,” that he had already been patted down once, nothing
was found, and he wanted to know if he could leave. Instead, on the video, we see defendant
being instructed to turn and doing so, placing his hands behind his back as if to be handcuffed.
At best, this exhibits his submission to authority. By this time, defendant had been standing
outside the car for some length of time, between at least two officers, with more arriving
throughout the stop, so that by the time of the search he had “five or six” officers around him,
along with a K-9. There is nothing in this record, taking the evidence in the light most favorable
to the State, to reveal what, if anything, defendant did to prompt the trooper to believe
defendant provided voluntary consent. Anthony and later cases hold that voluntary consent
does not require a defendant to protest the search, and any nonverbal consent must be
unmistakably clear. See Raibley, 338 Ill. App. 3d at 701 (citing Anthony,
198 Ill. 2d at 203);
see also People v. Hayes, 2018 IL App (5th) 140223, ¶ 34,
121 N.E.3d 103.
¶ 38 Even if we disregard defendant’s claim he told them “no” when asked if he could be
searched again and find the trial court did not err in finding Trooper Chapman credible, the
only indication in the record defendant consented to a warrantless search of his person was
defendant’s lack of protest. As Anthony and Raibley provide, acquiescence to authority does
not equate to consent. Further, nonverbal consent must be unequivocally clear, especially
where consent is sought to be shown by way of a single ambiguous gesture. Here, “he did not
say no” is just such a gesture. The trial court’s finding of voluntary consent was manifestly
erroneous because it was “clearly evident, plain, and indisputable” that the State failed to meet
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its burden to show, by the totality of the circumstances, that defendant voluntarily consented
to the search of his person. Ruiz, 177 Ill. 2d at 384-85.
¶ 39 Since it was the State’s burden to demonstrate it obtained voluntary consent, its failure to
do so requires us to reverse the trial court’s ruling denying defendant’s motion to suppress and
remand for further proceedings. Based on our ruling, we decline to address the other issues
raised by defendant.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we reverse the trial court’s judgment and remand this cause for
further proceedings consistent with this order.
¶ 42 Reversed and remanded.
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