                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                    People v. Canizalez-Cardena, 2012 IL App (4th) 110720




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JOSE CANIZALEZ-CARDENA, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-11-0720


Filed                      November 28, 2012


Held                       The evidence was sufficient to establish beyond a reasonable doubt
(Note: This syllabus       defendant’s guilt of unlawful possession of methamphetamine with intent
constitutes no part of     to deliver, his motion to suppress on the ground that the traffic stop that
the opinion of the court   resulted in the discovery of the drug in the car in which defendant was a
but has been prepared      passenger was unconstitutionally prolonged was properly denied, and the
by the Reporter of         trial court, in sentencing defendant, did not err in considering the large
Decisions for the          amount of drugs involved and the fact that defendant was illegally in the
convenience of the         United States.
reader.)


Decision Under             Appeal from the Circuit Court of Champaign County, No. 10-CF-1664;
Review                     the Hon. Heidi N. Ladd, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Nancy L. Vincent, all of State
Appeal                     Appellate Defender’s Office, of Springfield, for appellant.

                           Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Robert J.
                           Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Presiding Justice Turner and Justice Pope concurred in the judgment and
                           opinion.




                                             OPINION

¶1          Defendant Jose Canizalez-Cardena (hereinafter Cardena) was charged with unlawful
        possession with intent to deliver methamphetamine, a Class X felony, in that he knowingly
        and unlawfully possessed with intent to deliver 900 grams or more of a substance containing
        methamphetamine. 720 ILCS 646/55(a)(1), (2)(F) (West 2010). Cardena was convicted after
        a stipulated bench trial and sentenced to 25 years in prison on July 25, 2011. His timely
        motion to reconsider sentence was denied August 10, 2011, and notice of appeal was timely
        filed August 12, 2011. The appeal argues three issues: that the evidence was insufficient to
        convict, that a motion to suppress evidence was improperly denied, and that the trial court
        considered improper factors in sentencing. We affirm.

¶2                                        I. BACKGROUND
¶3          Illinois State Police trooper Chris Owen testified at a hearing on a motion to suppress.
        On September 29, 2011, at about 5 p.m., Owen was sitting near mile post 254 on I-57. With
        him was his drug-detecting dog, Xocko. Owen had been told that a 2002 silver Toyota Camry
        would possibly be transporting methamphetamine. Owen saw a car fitting that description
        in the left southbound lane. Owen clocked the car at 71 miles per hour, which was in excess
        of the 65 mile-per-hour posted speed limit. As the car approached Owen, it made an “abrupt
        lane change” into the right lane, following a gray passenger car too closely. The Toyota was
        proceeding slower than the speed limit at that point.
¶4          Owen initiated a traffic stop and approached the car on the passenger side. The driver was
        Leonel Galaviz-Galaviz (hereinafter Galaviz). Defendant Cardena was the only passenger.
        Galaviz provided a Mexican driver’s license. Galaviz’s hands trembled and his carotid artery
        pulsed, and his heart could be seen pounding. Cardena also provided a Mexican license with
        trembling hands. His carotid artery pulsed and he stared straight ahead. Owen stated it is not


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     unusual for people to be nervous, but Galaviz was overly so, and Cardena was equally
     nervous. Owen could smell air fresheners and saw several in the car, which in his experience
     indicated the possibility of drugs.
¶5       Galaviz responded “for the most part” in English to questions. He said he came from Los
     Angeles. He said he was traveling to “Illinois,” and could not say where, but that he was
     there for construction and demolition work as there was no work in Los Angeles. The
     insurance for the car was in Galaviz’s name, and recently purchased, but the car did not
     belong to him. As Owen’s suspicions were increasing, he went to talk to Cardena in the
     passenger seat while continuing to fill out the warning tickets. He asked Cardena in Spanish
     “where” and “work,” but got no response. Owen found Cardena to be “exhibiting numerous
     non-verbal indicators of excessive nervousness and stress,” and he asked Cardena in Spanish
     to get out of the Toyota and stand in the ditch. There was a phone in Cardena’s pocket that
     rang constantly.
¶6       At this point, about seven minutes into the stop, Owen opened the rear of the patrol car
     to release Xocko, a dog trained to detect marijuana, cocaine, methamphetamine, and heroin.
     As Xocko began to move around the car, Cardena turned his body and appeared to be
     praying. At the front driver’s side door, Xocko indicated by his body language that he
     detected the odor of narcotics. Xocko then hopped into the car through the open window and
     alerted to an area in the rear seat cushion. Owen called for backup. He requested and received
     verbal and written consent, a Spanish form, from Galaviz to search the interior of the car.
     Owen found a hidden compartment between the rear tires directly below the front of the
     trunk. He said that Toyota Camrys commonly have this compartment. He drilled a hole and
     used a fiber-optic scope to see green cellophane bundles. The car was towed to State Police
     headquarters. There, Owen found the access plate inside the driver’s side rear wheel well.
     The compartment contained 2,236.1 grams of methamphetamine.
¶7       The parties stipulated that Owen would testify consistently with his testimony at the
     hearing on the motion to suppress. He would be qualified as an expert in narcotics trafficking
     and interdiction, would testify that 2,236.1 grams of methamphetamine is a quantity
     indicative of an intent to deliver, and that multiple cell phones, two of which were in
     Cardena’s possession, indicated drug sales. He would testify that the street value of the drugs
     was $628,764.
¶8       The parties stipulated to postarrest statements made by Galaviz. Galaviz stated he could
     not find a job in Los Angeles and a friend, Jose Valle, offered him $4,000 to drive a car from
     Los Angeles to Chicago, and deliver it to a man unknown to Galaviz. Galaviz believed the
     car belonged to Valle’s brother, Francisco. Galaviz never communicated with the recipient
     of the car, known to him only as “the Cuban.” When Cardena and Galaviz arrived at the
     instructed location, they waited three hours. Jose Valle then called to tell them the Cuban was
     there. They followed the Cuban for about an hour and a half. Trooper Owen believed
     Galaviz’s story to be implausible as Galaviz was off route from where he said he was going
     and could not specify where in Illinois he was coming from. Galaviz and Cardena had known
     each other for about six months, having met when working construction. Galaviz stated that
     he and defendant shared the driving duties as they drove across the country. Galaviz did not
     know Cardena, Jose Valle, or Francisco Valle to be involved in drug trafficking. Galaviz did

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       not know methamphetamine was in the car.
¶9         Further investigation revealed that Cardena was actually Bernabe Galaviz-German and
       had previously been deported. Registered letters to the owners of the Toyota, sent to
       addresses in Utah, were returned unclaimed. The parties stipulated that People’s exhibit No.
       1 was 2,236.1 grams of methamphetamine.
¶ 10       The trial court concluded that it was not credible to believe that the two agreed to drive
       the car to Chicago in exchange for $4,000 for Galaviz and “for the thrill of a ride” for
       Cardena. It was not credible that the two would agree to meet an unidentified Cuban in
       Chicago, switch cars, and drive back.
               “It is apparent they were acting as couriers and clearly knew they were transporting
           that car and then switching it out for drugs to come back to whatever place was going to
           be the delivery point. And in that context their reaction to the trooper and that extreme
           reaction of nervousness out of all proportion to the reason for the stop is understandable.”

¶ 11                                        II. ANALYSIS
¶ 12       Defendant argues that because the facts here are not in dispute, defendant’s guilt is a
       question of law, which we review de novo, citing People v. Smith, 191 Ill. 2d 408, 411, 732
       N.E.2d 513, 514 (2000). In Smith, however, the question was a legal one, whether defendant
       could be found guilty of armed violence, despite the undisputed fact that he dropped the gun
       out the window before police entered the apartment. In the present case, there is a question
       of fact, whether the facts testified to by Trooper Owen support an inference that defendant
       knew of the drugs in the hidden compartment. “Even if the facts are not disputed, if
       reasonable persons could draw different inferences from them, it is left to the trier of fact to
       resolve those questions.” People v. Brown, 345 Ill. App. 3d 363, 366, 802 N.E.2d 356, 358
       (2003). The usual standard of review in a criminal case is whether, viewing the evidence in
       the light most favorable to the prosecution, any rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt. People v. Wheeler, 226 Ill. 2d 92,
       114, 871 N.E.2d 728, 740 (2007). We conclude that standard applies here.

¶ 13                              A. Sufficiency of the Evidence
¶ 14        Defendant argues the State failed to prove beyond a reasonable doubt that he had either
       actual or constructive possession of the drugs. A criminal conviction can only be upheld if
       it is based on credible evidence which removes all reasonable doubt as to the defendant’s
       guilt. People v. Ortiz, 196 Ill. 2d 236, 267, 752 N.E.2d 410, 429 (2001); see also People v.
       Sanchez, 375 Ill. App. 3d 299, 302-03, 873 N.E.2d 509, 512 (2007). If the controlled
       substance is found on the premises rather than on the defendant, the State can establish
       constructive possession if it can prove the defendant had knowledge and control over the
       premises by virtue of his connection to the premises. People v. Ray, 232 Ill. App. 3d 459,
       462, 597 N.E.2d 756, 758 (1992). Constructive possession of contraband is often found
       where it is located on premises over which the defendant has control, such as the defendant’s
       home. Defendant argues there is no proof that he had any control over a car that he did not
       own and where he was merely the passenger. “The State acknowledged Canizalez’s lack of

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       control by virtue of the fact Owen never asked Canizalez for consent to search the car.” Nor
       was there evidence that Canizalez in any way solicited, aided, abetted, or attempted to aid
       anyone in the possession or sale of methamphetamine. “There is nothing. The State’s sole
       evidence on this point is that Canizalez was nervous, had two cell phones, and the car had
       air fresheners in it.” There was no evidence of the contents of the phones, air fresheners
       without more prove nothing, and “[t]he source of Canizalez’s nervousness is obvious: he was
       in the United States illegally, and being stopped by the police is a sure path to deportation.”
       A verdict in a criminal case must be based on evidence and not upon guess, speculation, or
       conjecture. People v. Games, 94 Ill. App. 3d 130, 131, 418 N.E.2d 520, 521 (1981).
¶ 15        We disagree. “Constructive possession may be inferred from the facts, but evidence
       establishing constructive possession is often entirely circumstantial.” People v. Neylon, 327
       Ill. App. 3d 300, 306, 762 N.E.2d 1127, 1133 (2002). This is not a case like People v. Adams,
       242 Ill. App. 3d 830, 832, 610 N.E.2d 763, 765 (1993), where defendant was a visitor to the
       apartment where cocaine was found under the bathroom sink. Defendant’s connection to the
       Toyota was substantial; he had ridden in and driven the vehicle from Los Angeles to Illinois.
       Both defendant and Galaviz exhibited the same level of nervousness in their encounter with
       Trooper Owen, an experienced police officer who stated that defendant’s nervousness was
       above and beyond that exhibited by an average driver. Nervousness is not in and of itself
       sufficient to uphold a finding of knowledge, but it “does weigh in favor of a finding of
       knowledge.” Ortiz, 196 Ill. 2d at 266-67, 752 N.E.2d at 429. There were multiple air
       fresheners in the passenger section of the car that defendant obviously observed. As noted
       by the trial court, it is incredible to believe defendant’s argument that for no reason he helped
       drive a car across the country for delivery to an unidentified Cuban. Viewing the evidence
       in the light most favorable to the prosecution, a rational trier of fact could have found the
       essential elements of the crime beyond a reasonable doubt.

¶ 16                           B. Denial of the Motion To Suppress
¶ 17       Next defendant argues the circuit court erred in denying his motion to suppress, as the
       traffic stop was unconstitutionally prolonged. The trial court’s findings of fact on a motion
       to suppress are given great deference and will not be reversed unless they are against the
       manifest weight of the evidence. However, as to the trial court’s ultimate legal ruling of
       whether reasonable suspicion or probable cause exists and whether suppression is warranted,
       de novo review applies. People v. Sorenson, 196 Ill. 2d 425, 431, 752 N.E.2d 1078, 1083
       (2001). Upon initiating a minor traffic stop, a police officer may briefly detain the driver to
       request his driver’s license and determine its validity and, under certain circumstances,
       conduct a speedy warrant check. “Once a check of a driver’s license and any warrant
       information is completed, ‘if no further suspicion is aroused, the traffic stop must cease and
       the individual should no longer be detained.’ ” People v. Ramsey, 362 Ill. App. 3d 610, 615,
       839 N.E.2d 1093, 1098 (2005) (quoting People v. Ortiz, 317 Ill. App. 3d 212, 220, 738
       N.E.2d 1011, 1018 (2000)).
¶ 18       A videotape here corroborated Trooper Owen’s testimony that the traffic stop lasted
       seven to eight minutes before the canine alerted to drugs in the car. The trial court’s finding


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       that the average time for a traffic stop in which warning tickets were issued was around 10
       to 12 minutes is a reasonable one. Defendant argues “this initially proper traffic stop quickly
       transformed into an unrelated criminal interdiction investigation which impermissibly
       prolonged the stop.” Defendant cites People v. Baldwin, 388 Ill. App. 3d 1028, 1034-35, 904
       N.E.2d 1193, 1199 (2009). In that case, however, the trial court found that the duration of
       the traffic stop was unreasonable where the officer, after he decided not to give the defendant
       a ticket, prolonged the stop approximately 9 1/2 minutes by questioning defendant and
       calling for a drug-sniffing dog. See People v. Kats, 2012 IL App (3d) 100683, ¶ 21, 967
       N.E.2d 335. In the present case, the trial court found that Owen was gathering information
       for the warning tickets, and this did not prolong the stop, especially considering the language
       barrier increasing the difficulty of communication between the men. Owen did not have to
       call for a drug-sniffing dog. The dog was already there.
¶ 19        An officer may question a passenger during a traffic stop if the questions are based on
       a reasonable, articulable suspicion justifying the question. People v. Reatherford, 345 Ill.
       App. 3d 327, 336, 802 N.E.2d 340, 349 (2003). By the time Owen questioned defendant, he
       had developed the requisite reasonable suspicion based on the nervousness of both men,
       Galaviz’s incredible story, the multitude of air fresheners, and the tip that a car matching this
       description would be transporting drugs. The use of a narcotics-detection dog on the exterior
       of a vehicle during a lawful traffic stop generally does not implicate legitimate privacy
       interests. Illinois v. Caballes, 543 U.S. 405, 408-09 (2005). An interior sniff has been upheld
       where a canine jumped through an open hatchback and alerted on a duffle bag, where the
       police did not encourage the canine to jump into the car. United States v. Stone, 866 F.2d
       359, 364 (10th Cir. 1989). The same is true here. Xocko had already alerted on the outside
       of the vehicle before jumping into the car. The trial court correctly found that at the instant
       of Xocko’s alert outside, the police had the requisite probable cause to search the interior of
       the vehicle anyway.

¶ 20                             C. Factors Considered in Sentencing
¶ 21       Defendant’s final argument is that the trial court erred in sentencing when it considered
       the large quantity of drugs involved, a factor inherent in the offense, when it considered that
       Cardena was in the United States illegally, and when it failed to consider the costs of
       incarceration. Defense counsel failed to preserve these issues for review, but the office of the
       State Appellate Defender urges us to review these matters as plain error. In a plain error
       analysis, the first step for a reviewing court is to determine whether any error at all occurred.
       People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227 (2009). We conclude there was
       no error in this case.
¶ 22       The trial court stated that the offense of which defendant was convicted required a
       minimum of 900 grams of methamphetamine, but defendant possessed over 2,200 grams of
       the drug. The trial court further clarified that “certainly I won’t sentence the defendant for
       what is inherent in the definition of the offense.” It is well established that a factor inherent
       in the offense should not be considered as a factor in aggravation at sentencing. There is a
       strong presumption that the trial court based its sentencing determination on proper legal


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       reasoning, and a court of review should consider the record as a whole, rather than focusing
       on a few words or statements by the trial court. People v. Dowding, 388 Ill. App. 3d 936,
       942-43, 904 N.E.2d 1022, 1028 (2009). The fact that defendant delivered a quantity of drugs
       in excess of the minimum for that sentencing range is considered a factor which the circuit
       court may properly take into account when setting sentence. People v. Alcala, 248 Ill. App.
       3d 411, 425-26, 618 N.E.2d 497, 507-08 (1993). The legislature has also spoken on this
       issue.
           “[T]he sentencing court may consider the following as indicative of the type of offenses
           which the legislature deems most damaging to the peace and welfare of the citizens of
           Illinois and which warrants the most severe penalties:
                    ***
                    (2) offenses involving unusually large quantities of controlled substances, as
                measured by their wholesale value at the time of the offense[.]” 720 ILCS 570/411(2)
                (West 2010).
¶ 23       The trial court properly considered defendant’s current and prior illegal entries into this
       country, which were reflected in the presentence report and the trial record. A defendant’s
       unwillingness to learn from his mistakes or to respect laws enacted for the protection of the
       public’s safety is a proper factor for the trial court to consider in sentencing. People v. Rader,
       272 Ill. App. 3d 796, 807, 651 N.E.2d 258, 266 (1995). We reject the implication that
       noncitizens typically should get shorter sentences for deportable crimes because they will be
       removed from the United States upon their release. People v. Hamilton, 2011 IL App (2d)
       100739, ¶ 10, 962 N.E.2d 1105.
¶ 24       Section 5-4-1(a)(3) of the Unified Code of Corrections (730 ILCS 5/5-4-1(a)(3) (West
       2010 (added by Pub. Act 87-417, § 1, eff. Jan. 1, 1992)) requires that the trial court consider
       the financial cost of incarceration. However, it is a well-settled principle that a trial court is
       not required to specify on the record the reasons for a defendant’s sentence. Thus, it is
       reasonable to presume, absent evidence to the contrary, that the trial court performed its
       obligations and considered the financial impact statement before sentencing defendant.
       People v. Acevedo, 275 Ill. App. 3d 420, 424-26, 656 N.E.2d 118, 122-23 (1995). In the
       present case, defendant concedes that the Department of Corrections’ 2011 financial impact
       statement was issued in compliance with section 5-4-1. The trial court did not err in
       sentencing defendant.

¶ 25                                   III. CONCLUSION
¶ 26      For the foregoing reasons, we affirm the trial court’s judgment. As part of our judgment,
       we award the State its $50 statutory assessment against defendant as costs of this appeal.

¶ 27       Affirmed.




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