Opinion

People v. Horn

452 Ill. Dec. 566
186 N.E.3d 13
2021 IL App (2d) 190190

Court: Appellate Court of Illinois
Filed: Jun 18, 2021
Status: Published
Cited by: 6 cases
Authority: More cited than 53.3%

The opinion

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by Reporter of

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document

Appellate Court Date: 2022.03.28

10:24:42 -05'00'

People v. Horn, 2021 IL App (2d) 190190

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption KELLEN L. HORN, Defendant-Appellant.

District & No. Second District

No. 2-19-0190

Filed June 18, 2021

Rehearing denied July 9, 2021

Decision Under Appeal from the Circuit Court of Boone County, No. 17-CF-375; the

Review Hon. C. Robert Tobin III, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Amanda J. Hamilton, of Konicek & Dillon, P.C., of Geneva, for

Appeal appellant.

Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino,

Edward R. Psenicka, and John G. Barrett, of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE BRENNAN delivered the judgment of the court, with

opinion.

Justices Jorgensen and Schostok concurred in the judgment and

opinion.

OPINION

¶1 Defendant, Kellen L. Horn, was charged with possession of a controlled substance (at least

100 but less than 400 grams) (720 ILCS 570/402(a)(2)(B) (West 2016)) and possession with

intent to deliver a controlled substance (at least 100 but less than 400 grams) (id.

§ 401(a)(2)(B)). A jury convicted him on both counts. On appeal, defendant claims (1) the

police had no probable cause to arrest him, thus the trial court erred when it refused to suppress

his inculpatory postarrest statements, (2) the State failed to prove his guilt on both counts

beyond a reasonable doubt, (3) the trial court erred when it admitted his prior criminal

conviction as substantive evidence and made prejudicial comments regarding the evidence,

and (4) the trial court erred in failing to reduce his sentence. For the reasons that follow, we

reverse and remand.

¶2 I. BACKGROUND

¶3 On November 29, 2017, defendant was riding as a passenger in a vehicle on I-90. His

cousin, Markus Brown, was driving. Neither defendant nor Brown owned the vehicle. At

approximately 1:45 p.m., Trooper Greg Melzer of the Illinois State Police (ISP) performed a

traffic stop. During the stop, Melzer requested identification from both defendant and Brown.

He subsequently learned that both men had suspended licenses. Melzer then had Brown exit

the vehicle and sit in his patrol car while he wrote a citation.

¶4 Approximately three minutes after the stop, Trooper Alan Taylor arrived at the scene with

his K-9 partner, Bart. About five to seven minutes after the stop, Melzer also requested Trooper

Peter Skiba to come to the scene to assist. Trooper Taylor then walked Bart around the vehicle

to perform a free-air sniff. Bart alerted to the presence of narcotics in the vehicle. Melzer asked

defendant to exit the vehicle, and all three troopers conducted a search of the vehicle. During

the search, the troopers discovered an urn in the trunk that contained a bag of ashes and a bag

containing cocaine.

¶5 Defendant and Brown were arrested. The following day, defendant was charged with

possession of a controlled substance and possession with intent to deliver. In December 2017,

defendant was indicted on those charges.

¶6 A. Pretrial Motions

¶7 1. Defendant’s Motion to Quash Arrest and Suppress Evidence

¶8 In March 2018, defendant filed a motion to quash arrest and suppress evidence. Defendant

argued that the troopers lacked probable cause to detain and arrest him such that evidence

obtained as a result (specifically, statements made by defendant while in custody) was the fruit

of impermissible detention. The trial court conducted a hearing on May 31 and June 6, 2018.

¶9 At the hearing, Melzer testified as follows. First, he explained that he was assigned to the

criminal patrol team, whose goal was to investigate potential criminal activity on Illinois

roadways rather than to issue traffic citations. State troopers were advised to issue written

warnings, rather than citations, for speeding infractions of up to nine miles per hour over or

under the limit. He stopped a vehicle occupied by defendant on November 29, 2017, at

approximately 1:45 p.m.

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¶ 10 Before making the stop, Melzer observed the vehicle traveling at 74 miles per hour in a 70

mile per hour zone and saw the vehicle’s tires cross the dashed lane lines. After making the

stop, he requested the vehicle’s registration from the driver, Brown, and identification from

defendant and Brown. He learned that Brown’s license was suspended in Wisconsin and that

the vehicle was not registered to either occupant. Melzer moved Brown to his patrol car to

discuss his license status. Brown was placed under arrest but not handcuffed.

¶ 11 Trooper Taylor arrived next and spoke with defendant. He reported to Melzer that

defendant told him that the men went to Chicago to purchase shoes for Brown’s daughter at

Nike Town. Melzer testified that defendant and Brown gave “conflicting stor[ies]” about what

they had done that day, although he did not specify how their accounts differed. The

discrepancy in the men’s stories, combined with Brown’s nervousness, made Melzer

suspicious.

¶ 12 After Trooper Skiba arrived, Trooper Taylor had his K-9 partner Bart perform a free air

sniff. Bart alerted to narcotics. Melzer had defendant exit the vehicle, while the other troopers

searched it. They discovered an urn in the trunk that contained a package of ashes and a

package with a white powdery substance, which field-tested positive for cocaine. The vehicle

search disclosed no items belonging to defendant or bearing his name. The troopers then placed

defendant under arrest and transported him to an ISP office referred to as Plaza 5.

¶ 13 Melzer further testified that he had seen the men earlier that day. At approximately 10:45

a.m., he observed a gray sedan driving eastbound on I-90. Since it matched the general

description of a vehicle involved in an armed robbery in Rockford, he followed it into the

Belvidere Oasis parking lot. Two men exited the vehicle. Melzer determined that neither

matched the description of the men involved in the armed robbery and did not conduct any

further investigation. He later recognized that the vehicle he pulled over for speeding was the

same one he had seen earlier. Brown and defendant were the same occupants he had observed

earlier.

¶ 14 Trooper Taylor testified at the hearing consistent with Melzer. He further explained that he

did not know the basis for the stop upon arriving at the scene. Trooper Taylor nevertheless

questioned defendant because the standard practice for officers following a stop of a vehicle

with multiple occupants is to collect stories from each one to determine if somebody is being

deceitful. He further testified that defendant was cooperative, polite, and did not appear

nervous.

¶ 15 The State also introduced video exhibits from the troopers’ dashboard cameras. The video

from Melzer’s car depicted Melzer’s interaction with Brown during the stop. Brown tells

Melzer that defendant was his cousin, that the car belonged to another one of Brown’s cousins,

and that the ashes were those of Brown’s uncle. Melzer instructs one of the other troopers to

take defendant out of the vehicle and pat him down. Brown explains that he and defendant had

driven down from Wisconsin to Chicago to drop off his son with Brown’s mother because he

had to take care of his “sick baby.” At one point Melzer asks Brown whether he had done any

shopping, but Brown’s response is inaudible. After Trooper Taylor’s K-9 alerted to the

presence of narcotics in the vehicle, Melzer asked Brown if there was a reason the K-9 would

alert. Brown responded that he had smoked cannabis outside of the vehicle earlier in the day.

Further, one of the troopers is heard stating that defendant was wearing an ankle monitor and

asked Brown if defendant was on parole or probation. Brown’s response is not audible.

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¶ 16 Following the hearing and argument, the trial court issued a written order denying

defendant’s motion to quash arrest and suppress evidence. The court reasoned:

“The troopers, collectively, had the following evidence: (1) Brown and the

defendant traveled together from Wisconsin to Chicago and were on their way back

home in Wisconsin; (2) the co-defendants provided a different reason for the trip—

neither of which included picking up or transporting an urn with ashes of a person’s

remains; (3) contraband was found in an urn with what appeared to be ashes from a

person’s remains; (4) Brown and the defendant were related; (5) the ashes were those

of Brown’s uncle (which a reasonable inference could be made that the remains were

also a relative of the defendant); and (6) the defendant was wearing an electronic

monitoring bracelet on his ankle (which leads to a reasonable inference that he was on

parole, probation, or pretrial release). The Court finds instructive Maryland v. Pringle,

540 U.S. 366 (2003) in finding that it was reasonable to believe that either or both of

the co-defendants solely or jointly possessed the contraband.”

Thus, the court concluded that the troopers had probable cause to arrest defendant and denied

his motion to quash arrest and suppress evidence.

¶ 17 2. The State’s Fourth Motion in Limine

¶ 18 In October 2018, defendant filed a motion in limine seeking to bar the State from

introducing evidence that defendant had previous convictions. Conversely, the State filed two

motions in limine seeking to introduce defendant’s (1) two prior convictions to impeach his

credibility if he testified and (2) prior conviction for delivery of heroin to show his intent to

deliver the cocaine found in this case. The trial court heard argument on the motions. It allowed

the State to use the defendant’s prior convictions for impeachment if defendant testified and

further granted the State’s motion to introduce defendant’s delivery-of-heroin conviction to

show defendant’s intent to deliver cocaine.

¶ 19 B. Jury Trial

¶ 20 Melzer testified substantially as he did at the suppression hearing: he testified to (1) the

traffic violations that formed the basis for his stop of the vehicle; (2) the arrival of Troopers

Taylor and Skiba approximately 3 and 20 minutes later, respectively; (3) his discovery that

Brown and defendant both had suspended licenses; (4) his communication with defendant at

the scene; 1 (5) what he learned defendant had said to Trooper Taylor; (6) his observation that

Trooper Taylor’s K-9 partner alerted to the presence of narcotics in the vehicle; (7) the

troopers’ subsequent search of the vehicle and discovery of cocaine in an urn in the trunk; and

(8) the arrest of defendant. Melzer further testified that the substance believed to be cocaine

was transported back to Plaza 5. There, he emptied the contents into a new bag, which he sealed

and labeled so it could be tested, and retained the original bag to search for fingerprints.

Moreover, Melzer testified that, approximately three hours before the stop, he had seen Brown

and defendant traveling eastbound in the same vehicle that he stopped. He saw the vehicle pull

into the Belvidere Oasis and come to a stop. Both men exited the vehicle, which defendant had

been driving. Although he did not know who the occupants were, he recognized them and the

Unlike at the suppression hearing, Melzer did not testify at trial about statements made by Brown

during the stop.

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vehicle when he made the traffic stop later that day. On cross-examination, Melzer

acknowledged that, aside from the urn, no personal items connected with defendant were

discovered in the vehicle. He also acknowledged that he did not attempt to recover any

fingerprints from the vehicle or the urn, stating, “I don’t have that capability.”

¶ 21 Trooper Taylor testified substantially as he did at the suppression hearing: he testified to

(1) his arriving at the scene of the stop to assist Melzer, (2) his conversation with defendant

about defendant’s activities that day, (3) his conducting of a free air sniff of the vehicle with

his K-9 partner, (4) the troopers’ subsequent search of the vehicle and discovery of cocaine in

an urn in the trunk, and (5) the arrest of defendant. Trooper Taylor further testified that he

transported defendant to Plaza 5. There, he saw the urn recovered from the scene of the stop

and observed that the bag believed to contain human ashes had what appeared to be an

identification tag from a crematory. Within earshot of defendant, Troopers Gerald Ellis and

Taylor discussed the possibility of using the information on the tag to identify the urn’s

remains. Trooper Taylor then sat in on an interview between Trooper Ellis and defendant, who

admitted that the ashes were his father’s. On cross-examination, Trooper Taylor acknowledged

that his report did not include defendant’s statement regarding the urn. He also conceded that

defendant was cooperative, polite, and did not appear nervous during their conversation.

¶ 22 Trooper Ellis testified next. At the time of defendant’s arrest, Trooper Ellis was assigned

to the criminal interdiction team. He joined the investigation after Melzer requested his

assistance. At Plaza 5, Trooper Ellis saw the urn and the identification tag on the bag of remains

and discussed with Trooper Taylor the possibility of using the information on the tag to identify

whose remains the urn contained. Trooper Ellis subsequently interviewed defendant, who

stated that the ashes were his father’s. On cross-examination, Trooper Ellis acknowledged that

the written statement he obtained from defendant did not contain the admission that the ashes

were his father’s.

¶ 23 Penny Weinstein, a technician with the ISP Crime Lab, testified that she received the bag

containing the white powdery substance recovered from the urn. The contents of the bag

weighed 135.4 grams and tested positive for the presence of cocaine.

¶ 24 Moira McEldowney, a forensic scientist with the ISP Forensic Sciences Command,

testified that she received the bag that contained the substance recovered from the urn. She

processed the bag to develop fingerprint evidence but was unable to detect any impressions

suitable for comparison.

¶ 25 Scott Bowers, a detective with the Boone County Sheriff’s Department, testified as “an

expert in the cocaine field.” He explained that the quantity of cocaine recovered during the

traffic stop (135.4 grams) was consistent with an amount that would have been sold at the

wholesale level and would have cost approximately $5000 to purchase. He further testified that

a street-level user generally would not possess the amount recovered and, in his opinion, the

cocaine recovered was intended for distribution.

¶ 26 Finally, the State introduced into evidence a certified copy of conviction showing that

defendant was convicted on January 11, 2013, of delivery of less than 3 grams of heroin. At

that time, the trial court admonished the jury as follows:

“THE COURT: Folks, that last piece of evidence that was tendered is admitted for

a limited purpose and that purpose being as to whether or not the defendant possessed

the cocaine with the intent; in other words, what the intent was to do with the cocaine,

not really whether or not he possessed it.

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So again, it goes towards whether or not—it’s sort of similar to what the testimony

you heard with Detective Bowers is what was meant to be done with the cocaine.

You’re really not to consider it for any other purpose.”

The State rested its case. Defendant then rested without presenting evidence.

¶ 27 The jury found defendant guilty of possession of a controlled substance and possession

with intent to deliver. Defendant filed a motion for judgment notwithstanding the verdict or,

alternatively, for a new trial. He argued, among other things, that the trial court erred when it

denied defendant’s motion to suppress his postarrest statements and permitted the State to

introduce a certified copy of defendant’s prior conviction for delivery of heroin. He also argued

that there was insufficient evidence to sustain the convictions. The trial court denied

defendant’s motion.

¶ 28 C. Sentencing

¶ 29 At the sentencing hearing, the State conceded that the conviction for possession merged

into the conviction for possession with intent to deliver. Given the amount of cocaine recovered

and defendant’s prior conviction under the Illinois Controlled Substances Act, defendant was

eligible for an enhanced sentence from 9 to 80 years’ imprisonment. 720 ILCS

570/401(a)(2)(B), 408 (West 2016). The State recommended a sentence in the range of 22 to

25 years. Defendant argued in mitigation that (1) his conduct neither caused nor threatened

serious harm to another, (2) he never contemplated that his conduct would cause such harm,

(3) he had attained a high school diploma and maintained consistent work history, and (4) his

absence would negatively impact his minor son, who would be in the care of defendant’s 93-

year-old grandmother.

¶ 30 The trial court acknowledged that defendant’s conduct had not caused or threatened serious

harm to another and that defendant had not contemplated such harm. It also noted that

defendant’s son would experience hardship due to defendant’s incarceration. The court

indicated, however, that it did not believe defendant was unlikely to reoffend:

“Is it unlikely to recur? I don’t know. It doesn’t look like it. I mean, it looks like

he’s got a fairly regular pattern of committing offenses. I know that based upon the

statutory minimums, this will at least take him off the street for a little while and it

won’t occur then, but I don’t know if it’s going to recur. I wish it hadn’t happened in

this situation, but I can’t say that it won’t recur or that he’s going to commit another

crime.

There’s nothing to learn that he’s learned anything from prior sentencing. Again,

does that mean that—as [defendant’s trial counsel] suggested, maybe a sentence to the

Department of Corrections in Wisconsin should have been done on some of the prior

offenses, and if that had happened, maybe he wouldn’t have done this. Maybe. I don’t

know. On the flip side, it’s also possible that he’s going to keep committing these

offenses no matter what. I just don’t know.”

The trial court then sentenced defendant to 24 years’ imprisonment to be served at 75% with

3 years’ mandatory supervised release.

¶ 31 Defendant filed a motion to reconsider sentence, arguing that it was excessive because it

was his first sentence to the penitentiary. The trial court denied the motion. Defendant timely

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appealed.

¶ 32 II. ANALYSIS

¶ 33 Defendant raises several claims on appeal. First, the trial court erred when it denied his

motion to quash arrest and suppress evidence because the troopers lacked authority to stop the

vehicle in which he was traveling, search the vehicle, and arrest him after cocaine was

discovered in the vehicle trunk. Second, the State presented insufficient evidence to prove

defendant committed the charged offenses beyond a reasonable doubt. Third, the trial court

erred when it permitted the State to introduce evidence of defendant’s prior conviction for

delivery of heroin to prove his intent to deliver cocaine. And fourth, the trial court erred in

sentencing defendant to 24 years’ imprisonment and refusing to reduce the sentence upon his

motion to reconsider.

¶ 34 A. Suppression Ruling

¶ 35 Defendant argues that the trial court erred in declining to suppress his statement about the

urn because the troopers lacked sufficient cause to effectuate the stop, to search the vehicle,

and to arrest defendant. A reviewing court applies a two-part standard of review to a trial

court’s ruling on a motion to suppress. See People v. Kulpin, 2021 IL App (2d) 180696, ¶ 39.

First, the reviewing court accepts the trial court’s findings of fact unless they are against the

manifest weight of the evidence. Id. Second, it reviews de novo whether the search or seizure

was illegal and the resulting evidence should have been suppressed. Id.

¶ 36 Initially we note that, other than stating the claims, defendant does not develop any

argument that the trooper lacked sufficient cause to stop the vehicle for speeding or improper

lane usage or that, after the K-9 alert, there was not probable cause to search the vehicle.

Defendant does not argue that speeding is an impermissible basis to stop a vehicle or that the

K-9 free-air sniff impermissibly prolonged the stop. Rather, defendant essentially argues that

the stop and search were impermissible because the stop was pretextual. However, it is firmly

established that an officer’s subjective motivation is irrelevant to the existence of probable

cause under the fourth amendment (U.S. Const., amend. IV). See Devenpeck v. Alford, 543

U.S. 146, 153 (2004). Accordingly, these arguments are forfeited, and we turn to the question

of whether there was probable cause to arrest defendant for possession of cocaine. Ill. S. Ct. R.

341(h)(7) (eff. Oct. 1, 2020) (argument section of brief “shall contain the contentions of the

appellant and the reasons therefor, with citation of the authorities and the pages of the record

relied on. *** Points not argued are forfeited ***.”).

¶ 37 In determining that the State had probable cause to arrest defendant for possession of

cocaine and thus denying defendant’s motion to suppress, the trial court made the following

findings.