THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO M. JAMES, Defendant-Appellant, 391 Ill. App. 3d 1045

JUSTICE SCHMIDT delivered the opinion of the court: The defendant, Orlando M. James, was charged with unlawful possession of cocaine with intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2002)) and unlawful possession of cocaine (720 ILCS 570/ 402(a)(2)(B) (West 2002)). The trial court denied his motion to suppress the evidence. In a bench trial, the court found the defendant guilty on both counts. The court ruled that the latter count merged into the former and sentenced him, inter alia, to 17 years of imprisonment and to pay a $3,000 drug assessment fee.

On appeal, the defendant argued that: (1) the trial court erred by denying his motion to suppress; and (2) he is entitled to a $5-per-day credit against his drug assessment fee for the days he was in presentence incarceration. In a 2007 order, this court, with one justice dissenting, reversed and remanded on the motion to suppress issue. People v. James, No. 3 — 05—0172 (2007) (unpublished order under Supreme Court Rule 23). In doing so, the majority relied on the “scope of the stop” prong of People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). The State sought review of that order in the supreme court.

On November 26, 2008, the Illinois Supreme Court issued a supervisory order directing us to vacate the 2006 order and to reconsider in light of People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603 (2008). People v. James, 229 Ill. 2d 681, 896 N.E.2d 1060 (2008). Accordingly, we hereby vacate the 2006 order. Upon reconsideration, we affirm as modified. I. BACKGROUND At the hearing on the motion to suppress, Henry County Deputy Sheriff Glenn Hampton testified that, during the early morning hours of November 14, 2002, he observed a car following another vehicle too closely on Interstate 80.

Hampton stopped the car, which was driven by Anthony Oliver, and in which the defendant was the only passenger. Hampton said that he approached the driver’s side of the vehicle and asked Oliver for his driver’s license. Oliver gave Hampton an Illinois state identification card. The officer placed Oliver in the passenger seat of the squad car while he ran a background check on Oliver’s card. The dispatcher informed Hampton that Oliver did not have a valid Illinois driver’s license.

In response to Hampton’s questions, Oliver stated that he had problems with his license because of an error by the Secretary of State’s office. Hampton did not arrest Oliver, but instead told him that he needed to resolve the situation with the Secretary of State’s office. At some point while Oliver was in the squad car, Hampton approached the defendant to determine whether he had a valid driver’s license. The defendant told Hampton that he did not have his driver’s license with him. The defendant provided Hampton with his name and date of birth.

Using this information from the defendant, Hampton ran a background check to determine whether the defendant had a valid driver’s license. The dispatcher informed Hampton that the defendant had a valid license and that he was on mandatory supervised release from the Department of Corrections. Hampton was not told why the defendant had been incarcerated. After Hampton received the information regarding Oliver, the vehicle, and the defendant, Hampton returned Oliver’s card and informed him that he was free to go, but only if the defendant drove the car.

Then, Hampton asked Oliver if there were any weapons or contraband in the vehicle. Hampton testified that he was suspicious of “a very strong smell of an aroma, of some sort of fragrance, real strong,” coming from inside the vehicle. Hampton stated that vehicles transporting illegal drugs sometimes use strong fragrances as masking agents. Oliver told Hampton that there were no weapons or contraband in the vehicle. In response, Hampton asked Oliver whether he was certain of that. Oliver said that he was certain, but also told Hampton that he could search the vehicle if he wished.

Hampton took Oliver’s statement as consent to search the vehicle. Hampton next approached the passenger side of the vehicle and asked the defendant to exit the vehicle. Hampton told the defendant that Oliver had consented to a search of the vehicle and also asked the defendant for consent to search. According to Hampton, the defendant consented. Next, Hampton told Oliver to stand at the front of the car he had been driving. The officer also told the defendant to stand at the front of the squad car, which was situated behind the vehicle in which he had been the passenger.

Hampton then searched the interior of the car. The only item Hampton found in the passenger compartment was a liquor bottle containing the fragrance that was emanating from the vehicle. Hampton then asked both the defendant and Oliver for their consent to search the trunk. At this point, both Oliver and the defendant were still at the respective locations where they previously had been told to stand by Hampton. Both the defendant and Oliver gave their consent to search the trunk. During this search, Hampton found a plastic baggie containing cocaine in a wheel well of the trunk.

Oliver later gave a voluntary written statement to Hampton, stating that he was taking the cocaine to a party, but that he did not intend to sell the cocaine. He also stated that he was “ready to leave the streets” and to give up using drugs. Oliver testified that he was driving the car on Interstate 80 on the morning in question. The defendant was in the passenger’s seat. The vehicle belonged to the defendant’s wife. Oliver stated that he was in the left lane, passing a truck that was in the right lane. Hampton’s squad car was turning around in a U-turn area on the interstate.

Oliver passed Hampton, and Hampton began to follow the vehicle. Hampton then pulled the car over. Hampton approached the driver’s side and asked Oliver for his license. Oliver responded that he only had a state identification card because someone in Connecticut had been using his name. Hampton then placed Oliver in the squad car. Hampton ran a background check on Oliver’s card, which came back as suspended. Hampton exited the squad car and approached the defendant, who gave Hampton his information orally because he did not have his driver’s license with him.

Hampton returned to the squad car and ran a background check on the defendant’s information. Hampton then returned Oliver’s card and told him that he was free to go. Oliver stated that he felt free to go at that point. Hampton next informed Oliver that he was going to search the vehicle and that, if there was nothing illegal in the vehicle, the defendant would have to drive. Hampton then asked Oliver if there were guns or drugs in the vehicle. Oliver said Hampton never asked him whether he could search the vehicle.

Oliver stated that his door was locked and that he no longer felt free to leave after Hampton said he was going to search the vehicle. Hampton exited the squad car and approached the defendant, whom he asked to exit the vehicle. Hampton returned and asked Oliver to exit the squad car. Hampton placed Oliver at the front of the vehicle and the defendant at the rear. Hampton then began to search the vehicle. After Hampton searched the passenger compartment, he opened the trunk and began to search it.

Oliver stated that Hampton did not ask him for consent to search the trunk and that he did not hear Hampton ask the defendant for consent to search the trunk. During his search of the trunk, Hampton rose up with his gun drawn and told Oliver to “freeze” and to put his hands on his head. Hampton then made Oliver walk around to the back of the vehicle, where he cuffed Oliver and the defendant. Oliver stated that his written statement was untrue. He stated that Hampton told him what to write because he wished to “impress the State” in order to get the intent charge dropped.

Additionally, Oliver stated that Hampton encouraged him to talk to the defendant regarding the incident to ensure they had the same version of what happened. In rebuttal, Hampton denied telling Oliver what to write and denied encouraging Oliver to talk to the defendant regarding the incident. The defendant testified that, on the morning in question, he was the passenger in his wife’s vehicle. Oliver was driving. Hampton pulled them over and approached the driver’s side of the vehicle. Oliver rolled the window down, and Hampton said he pulled the car over for following another vehicle too closely.

Oliver gave Hampton a state identification card, and Hampton took Oliver back to the squad car while he ran the check on Oliver’s card. About 10 minutes later, Hampton approached the defendant and asked him for his driver’s license. The defendant said that he had a license, but that he did not have it on him. The defendant then gave Hampton his personal information, and Hampton returned to the squad car. Hampton returned about 10 minutes later with Oliver walking slightly behind him. Hampton asked the defendant to exit the vehicle and told Oliver to go to the front of the vehicle.

Hampton then asked the defendant if he had any contraband on him, to which the defendant said, “No.” Hampton asked for and received the defendant’s consent to search his person. Hampton then placed the defendant at the rear of the vehicle. Next, Hampton began searching the vehicle’s interior. The defendant stated that Hampton never asked if the officer could search the vehicle and that he never heard Hampton ask Oliver if the officer could search the vehicle. After searching the interior, Hampton began searching the trunk. He opened the trunk with the key.

Again, the defendant stated that Hampton did not ask for consent to search the trunk and that he did not hear Hampton ask Oliver for consent to search the trunk. With regard to the events surrounding Oliver’s written statement, the defendant stated that Hampton told him that Hampton knew the State’s Attorney personally and that Hampton was going to try to help them out by getting the intent charge dropped.

The defendant also stated that Hampton told him that he needed to “follow-up” with Oliver’s version of what happened in order to convince the State’s Attorney to drop the intent charge and that Hampton actually told him several parts of Oliver’s version. The defendant stated that Hampton placed him in the same room with Oliver for five minutes to “talk it over.” On April 4, 2003, the trial court denied the defendant’s motion to suppress. In its written order, the court made a number of factual findings that were consistent with Hampton’s testimony.

Among these findings, the court stated that both Oliver and the defendant had given their consent to the search of the car, contrary to their testimony. The court also said that both Oliver and the defendant were free to go when Hampton made the request to search the vehicle and that Hampton did not illegally detain them prior to requesting consent to search. Accordingly, the court held that the consents of both Oliver and the defendant had been voluntarily given. At the bench trial, Hampton offered testimony similar to his testimony at the suppression hearing.

At the conclusion of the bench trial, the court found the defendant guilty on both counts. The record shows that the defendant was in custody for 501 days before he was sentenced. II. ANALYSIS A. Motion to Suppress On appeal, the defendant contends that the trial court erred by denying his motion to suppress because Hampton illegally detained him following the traffic stop, thereby tainting the subsequent search that resulted in the discovery of cocaine in the trunk of the vehicle.

In Cosby, our supreme court reiterated that the ruling of a trial court on a motion to suppress frequently presents mixed questions of fact and of law. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. A trial court’s findings of fact will not be disturbed unless they are manifestly erroneous, and its ultimate decision concerning whether to grant the motion is reviewed de novo. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. The fourth amendment of the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const., amend. IV

Article I,

section 6, of the Illinois Constitution provides similar protections. Ill. Const. 1970, art. I, §6. Illinois courts have interpreted the search and seizure language found in

section 6 in a manner consistent with the Supreme Court’s fourth amendment decisions. People v. Caballes, 221 Ill. 2d 282, 851 N.E.2d 26 (2006). In Cosby , the Illinois Supreme Court emphasized that searches and seizures that occur incident to traffic stops are no longer to be analyzed by the three-tiered test found in Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260. The Cosby court noted that once a traffic stop has ended, the question becomes whether a second seizure has occurred when an officer requests consent to search the vehicle. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603.

The court analyzed this question under the principles found in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), and People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999). The Mendenhall court stated that a person is seized when, either by physical force or by a show of authority, his freedom of movement is restrained. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.

The Court gave examples of circumstances that might indicate a seizure to be: (1) the threatening presence of several officers; (2) an officer’s display of a weapon; (3) physical touching of the defendant by an officer; and (4) an officer’s use of language or tone of voice to indicate that compliance may be compelled. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. Citing Mendenhall, the Brownlee court observed that a person is seized when, considering all of the facts and circumstances concerning the incident, a reasonable person would not feel free to leave.

Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. If an officer has neither probable cause nor a reasonable, articulable suspicion of criminal activity, the officer’s show of authority constitutes an unconstitutional seizure of the person. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. The Mendenhall court also noted that the crucial question is whether a defendant’s seizure at the time he was asked for consent to search meant that the consent was coerced and, therefore, was involuntary. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.

If the consent to search was involuntarily given, any evidence obtained as a result of the search would be tainted as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556. We acknowledge that the testimony of Hampton, Oliver, and the defendant varied regarding the events that transpired between the beginning of the traffic stop and the defendant’s arrest. However, the trial court made factual findings that were consistent with Hampton’s testimony.

The court also found that Oliver and the defendant were free to go when Hampton asked for consent to search the vehicle. The court implicitly found Hampton’s testimony to be more credible than the testimony of either Oliver or the defendant. See People v. Hawkins, 243 Ill. App. 3d 210, 611 N.E.2d 1069 (1993) (court making finding adverse to the defendant is implicit credibility finding in favor of the State). Therefore, we will rely on Hampton’s version of events in applying the facts of this case to our legal analysis.

As the Cosby court noted, once the traffic stop ended, the central question became whether a second seizure occurred when Hampton requested consent to search the vehicle. See Cosby, 231 Ill. 2d 262, 898 N.E.2d 603. In the present case, the traffic stop ended when, in the squad car, Hampton determined that the defendant had a valid driver’s license and told Oliver that he was free to go so long as the defendant drove. Then, while still seated in the squad car, Hampton asked Oliver if: (1) there were any weapons or any contraband in the vehicle; and (2) whether he was certain.

Merely asking such questions did not constitute a seizure of Oliver. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. Next, without Hampton asking Oliver for consent to search the car, Oliver volunteered that Hampton could search the vehicle. Because Oliver had been the driver of the car, he had authority to consent to the search of the vehicle. See People v. Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277 (1990). Therefore, Oliver’s unsolicited consent was a valid, voluntary consent for Hampton to search the car. Furthermore, Oliver’s unsolicited consent included consent to search the trunk.

See People v. Gutierrez, 243 Ill. App. 3d 867, 612 N.E.2d 111 (1993). Moreover, Oliver’s unsolicited consent was valid regardless of whether Hampton sought the consent of the defendant, who was: (1) a passenger in the car; and (2) not the owner of the vehicle (defendant’s wife owned the car). See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277. Next, we will determine whether any of Hampton’s actions after he received Oliver’s consent would have invalidated that consent. After Hampton received Oliver’s unsolicited consent, Hampton asked the defendant to exit the vehicle.

Hampton was permitted to require the defendant to exit the vehicle during the search, for the officer’s safety. See Maryland v. Wilson, 519 U.S. 408, 137 L. Ed. 2d 41, 117 S. Ct. 882 (1997); People v. Gonzalez, 294 Ill. App. 3d 205, 689 N.E.2d 1187 (1998). Thus, Hampton’s removal of the defendant from the car did not invalidate Oliver’s consent to search the vehicle. After the defendant exited the vehicle, Hampton asked: (1) the defendant for consent to search the car;

(2) Oliver for consent to search the trunk; and (3) the defendant for consent to search the trunk. However, all of Hampton’s further requests to search were redundant after Hampton received the initial valid, unsolicited consent to search from Oliver. See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277. Even if we were to consider, arguendo, whether any of these subsequent requests constituted a second seizure, the answer is negative because the record does not show the presence of any Mendenhall factors (see 391 Ill. App. 3d at 1051) during these requests. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870. In

summary, the evidence presented at the suppression hearing showed that Hampton obtained unsolicited, voluntary consent to search the vehicle, including the trunk, from Oliver. Whether Hampton later requested consent to search from the defendant was irrelevant. See Harris, 199 Ill. App. 3d 1008, 557 N.E.2d 1277. If anything, the request to search the trunk would send the message to a reasonable person that he could refuse the request and the officer would stop searching. Hampton did not seize the cocaine in violation of defendant’s fifth amendment rights. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S.

Ct. 1870. Therefore, we hold that it was neither against the manifest weight of the evidence nor error as a matter of law for the trial court to deny the defendant’s motion to suppress. B. Monetary Credit The defendant submits that he is entitled to a $5-per-day credit against his $3,000 drug assessment fee for the days he was in presentence incarceration. The State agrees. A criminal defendant is entitled to a $5 credit for each day he is in presentence custody to be applied against any fines imposed by the court. 725 ILCS 5/110 — 14 (West 2006). This $5 credit is applicable to drug assessment fees. People v.

Reed, 376 Ill. App. 3d 121, 875 N.E.2d 167 (2007). In this case, the record shows that the defendant was in presen-tence custody for 501 days. His sentence included a $3,000 drug assessment fee. The defendant did not receive a $5-per-day credit against his drug assessment fee. Therefore, we rule that the defendant is entitled to a credit of $2,505 against his $3,000 drug assessment fee. III. CONCLUSION For the foregoing reasons, we affirm the Henry County circuit court’s judgment of conviction and modify the defendant’s sentence by applying a credit of $2,505 against his $3,000 drug assessment fee.

Affirmed as modified. LYTTON, J., concurs. The defendant and Oliver were tried separately. They each filed a motion to suppress in their respective cases. By agreement of the parties, the trial court held a joint hearing on the motions from the separate cases. We note that this is a fourth amendment case. There are United States Supreme Court cases on point. Our supreme court directed this court to reconsider in light of Cosby and, for that reason, our analysis focuses on Cosby. Cosby obviously does not change fourth amendment jurisprudence. Rather, Cosby and People v.

Harris, 228 Ill. 2d 222, 886 N.E.2d 947 (2008), bring Illinois back in line with United States Supreme Court fourth amendment jurisprudence. We assume the Illinois Supreme Court directed us to vacate the original order and reconsider in light of Cosby because Cosby was its most recent pronouncement that the “scope of the stop” portion of the Gonzalez test, relied on by the majority in our 2006 disposition, previously had been rejected by the United States Supreme Court in Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005).