Opinion
2-20-0359
03-18-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTORIA COLON, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kane County No. 17-CF-960 Honorable Alice C. Tracy, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court. Justices McLaren and Brennan concurred in the judgment.
ORDER
HUDSON, JUSTICE
¶ 1 Held: The trial court erred in denying defendant's motion to suppress statements. At the scene of a traffic stop, defendant gave statements during a custodial interrogation that were not preceded by any Miranda warnings. After her arrest and transfer to the police station, she was Mirandized and gave further statements. However, those statements were also inadmissible because the police had deliberately questioned the defendant without Miranda warnings and proper curative measures were lacking between the unwarned and warned statements so as to alleviate the taint attributable to the original questioning.
¶ 2 Following a bench trial, defendant, Victoria Colon, was convicted of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1)(3)(A-5) (West 2016)) and sentenced to 24 months' probation. On appeal, she argues that the trial court erred in denying her motions to suppress her statements made both before and after she was advised of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). We reverse and remand.
¶ 3 I. BACKGROUND
¶ 4 Defendant was indicted on one count of aggravated unlawful use of a weapon, stemming from a traffic stop of her vehicle by Aurora police officer Steve Pacenti. Because Pacenti smelled marijuana, he searched defendant, her four passengers, and the vehicle. Pacenti discovered a baggy of marijuana in the back seat and a loaded gun in the glove compartment. Pacenti arrested defendant's boyfriend, who was the front-seat passenger. About 26 minutes into the stop, after the searches and the arrest, Pacenti directed defendant into the back of his squad car. While in the squad car, defendant made various statements to Pacenti. She was ultimately arrested and transported to the police station, where she reiterated to Pacenti her previous statements. At no time did Pacenti advise defendant of her rights under Miranda. During a subsequent interview with Aurora police officer John Munn, which was conducted after Munn had advised her of her Miranda rights, defendant made additional statements.
¶ 5 Before trial, defendant filed two motions to suppress her statements. The first motion argued that defendant's statements to Pacenti should be suppressed because she was subject to custodial interrogation without first being advised of her rights under Miranda. The second motion argued that defendant's statements to Munn should be suppressed, because the officers engaged in an unconstitutional "question first, warn later" interrogation strategy and curative measures were not taken between the prewarning and postwarning statements. The court conducted separate hearings on the two motions.
¶ 6 The following relevant evidence was adduced at the suppression hearings and at trial. See People v. Alfaro, 386 Ill.App.3d 271, 290 (2008) (in reviewing a trial court's ruling on a motion to suppress, the reviewing court may consider the entire record, including trial testimony).
¶ 7 A. Defendant's Pre-Miranda Statements to Pacenti
¶ 8 On March 25, 2017, at about 1:30 a.m., Pacenti stopped the 27-year-old defendant's vehicle for speeding and failing to stop at a stop sign. Defendant pulled her vehicle into the driveway where she lived. Two video recordings captured Pacenti's interactions with defendant: one was taken from Pacenti's squad car's dashboard camera and one was taken from a camera located in the squad car, which recorded the rear passenger area. Pacenti approached the vehicle and asked defendant for her license and proof of insurance. As defendant searched for those items, defendant told Pacenti that the vehicle belonged to her mom and that it was insured by State Farm. There were four passengers in the vehicle-two men and two women-so Pacenti called for backup officers. Pacenti asked the passengers for their identification. The passengers did not have identification, so Pacenti asked for their names and birthdates. Another officer arrived and approached the passenger side of the vehicle to assist in obtaining names and addresses. In the meantime, defendant produced her license and insurance information.
The video of the back seat of the squad car is identified in the record as "PEX 9, Stream 2." It is about 35 minutes long and begins when defendant is placed in the back of the squad car. Portions of it were offered by the State at the hearing on the motion to suppress the pre-Miranda statements and were identified as People's exhibit No. 1. The exhibit contains the first three statements to which defendant objected. Defendant identified those statements as: "Statement 1 recorded at 01:56:50 to 02:02:20," "Statement 2 recorded at 02:08:28 to 02:11:54," and "Statement 3 recorded at 02:22:12 to 02:30:05." The trial court ruled that the first statement was admissible but that the second and third statements were not. At trial, the State introduced "PEX 2," which showed only the first statement. PEX 2 is approximately five minutes long. The video from the dashboard camera is identified in the record as "PEX 9, Stream 1." It is about one hour long. It was offered by defendant as Defense exhibit No. 1 at the hearing on the motion to suppress the pre-Miranda statements.
¶ 9 About nine minutes into the encounter, Pacenti asked defendant to exit the vehicle, and he directed her to the front of his squad car. Pacenti wanted defendant "to feel more comfortable and not be pressured by answering questions in front of her passengers." At this point, two other officers were present, for a total of three officers and three squad cars at the scene. Pacenti asked defendant how she knew the passengers and where she picked them up. Defendant told Pacenti that the front seat passenger, Eleazar Smith, was her boyfriend, and that the man in the back seat, later identified as Terrance Fultz, was Smith's cousin. She told Pacenti that she picked up the other two passengers nearby. Pacenti asked if there was anything illegal in the vehicle, and defendant responded, "Not that I know of, no." He advised defendant that he smelled marijuana, and defendant told him that she had smoked a cigarette. Defendant told Pacenti that she did not smell "weed" in her vehicle. Pacenti asked defendant if he could search her vehicle. She did not consent, commenting that Pacenti was "going to search it anyway." Defendant waited by the curb with another officer.
¶ 10 Pacenti then asked each passenger to exit the vehicle one by one, and he searched each passenger. No one was arrested or handcuffed. After being searched, the passengers were directed to the curb near defendant. Pacenti then searched the vehicle. During the search, Pacenti found a small baggy containing what he suspected to be marijuana on the rear right passenger side floorboard and a loaded "Bryco .380 semi-automatic firearm" in the glove compartment. Pacenti returned to the area in front of his squad car and asked Smith to join him. He searched Smith a second time and told him that he was under arrest. As he was arresting Smith, Pacenti whispered to another officer that he had found a "pistol." When Smith asked what he was being arrested for, Pacenti responded that he would explain in a second. Pacenti then placed Smith into the back of another officer's squad car. Pacenti returned to defendant's vehicle and searched some more.
¶ 11 Defendant testified that, at one point, her phone rang, and she asked an officer if she could answer it. The officer said no. Defendant saw Smith get arrested after Pacenti finished searching her vehicle. She was "nervous," "very uneasy," and "a little confused."
¶ 12 Statement 1: After Pacenti finished searching the vehicle, about 26 minutes after he first stopped defendant, Pacenti brought defendant to his squad car. He opened the back door and directed defendant to "hop in." He told her that she was "not under arrest" and that she was just going to "sit in [t]here for a minute." Defendant was not handcuffed. As she entered the back of the squad car, defendant commented that "at least it's warm." Pacenti entered the front of the squad car and began asking questions about who owned the vehicle and whether anyone else drove it. He then asked: "What do you think I found inside your vehicle? 'Cuz I already know you know." Defendant shook her head, shrugged her shoulders, and said, "Drugs?" When Pacenti asked her what kind of drugs, she replied that she did not know. When Pacenti asked what she thought he found, she replied, "Probably weed 'cuz you said you smelled weed." Pacenti then asked defendant what time she left her house. Defendant told him that she had been out all day but that she had just picked up her boyfriend and his cousin. She said that Smith, who was the front seat passenger, was her boyfriend. Thereafter, the following dialogue took place:
"PACENTI: So what else is in the vehicle? I understand it's your boyfriend, but- you have to kind of look out for yourself for a few minutes.
DEFENDANT: (inaudible) what's in the glove compartment?
PACENTI: What's that?
DEFENDANT: What was in the glove compartment?
PACENTI: Yes. How did that get there?
DEFENDANT: It's been in there.
PACENTI: Okay. From how?
DEFENDANT: From me.
PACENTI: Really?
DEFENDANT: I do have a gun license. With the way stuff is lately I don't trust anything.
PACENTI: So do you own it? Where's your-where's your paperwork for it?
DEFENDANT: I mean, I don't have the paperwork.
PACENTI: Do you own it or not?
DEFENDANT: I mean, it depends on which one it is.
PACENTI: 'k, what do you own?
DEFENDANT: Um-oh a point, what is it, .380, um 9 by 19, a 20 by-I mean, they're technically not in my name because they were left to me from my father, because he passed, and he left them in the will for me. And for those guns I do have the receipts, but they're put away in storage. My gun license is actually in the car.
PACENTI: Whose fingerprints are going to be on that gun?
DEFENDANT: I-I don't know. I know I-
PACENTI: Who do you think? [Defendant], the best thing is to be honest right now.
DEFENDANT: I-I honestly really don't know who else's fingerprints could be on there. I mean, maybe [Smith's] because he has gone in my glove compartment before, but I don't know other than that."
Defendant was able to tell Pacenti approximately when she noticed him behind her while driving. He asked her if, at that point, the gun "ma[d]e its way" into the glove box. She said no. Pacenti told her that he would ask everyone else the same question. Defendant told him that, "to [her] knowledge" the gun was in the glove compartment before she even saw that Pacenti was behind her. In response to Pacenti's questions, she told him that she did not have a concealed carry license, that the gun was loaded, and that she did not tell him about the gun initially because it "slipped [her] mind."
¶ 13 Defendant testified that when questioned by Pacenti, she felt like she was being detained. She did not feel that she could get out of the squad car and leave. Pacenti did not advise her of her Miranda rights, and she did not feel like she could refuse to answer his questions. Her prior experience with police involved only traffic tickets.
¶ 14 Pacenti exited the squad car to go talk to Smith, who was in the back of a different squad car. During this conversation, which lasted about six minutes, defendant remained in the back of Pacenti's squad car, unable to leave. Pacenti read Smith his Miranda rights and questioned him about the gun. Smith denied knowing about the gun.
¶ 15 Statement 2: Pacenti returned to his squad car and asked defendant to exit. Pacenti, with another officer present, proceeded to question defendant for about three-and-a-half minutes about the gun. Pacenti did not arrest defendant or advise her of her rights. Eventually, defendant told him that she and Smith both put the gun into the glove box when Pacenti pulled up behind her vehicle. Defendant said that the gun was somewhere between the front seats. She said that Smith opened the glove box and she put it in. Pacenti directed defendant back into the squad car.
¶ 16 Statement 3: Over the next ten minutes, the three other passengers were allowed to leave. Pacenti then returned to his squad car, where defendant was still in the back seat. As Pacenti proceeded to fill out arrest paperwork, defendant asked if she was under arrest, and Pacenti told her that she was. After a brief conversation about the charges-including the possible effects on her job and gun license-Pacenti asked defendant when the gun was put into the vehicle. Defendant explained that it was sometime during the night. Defendant said that she did not know how the gun got into her vehicle. Pacenti asked defendant about the type of guns that she owned. Pacenti continued to question defendant about whether the gun was in the center console when he pulled up behind her vehicle or whether someone had it on them. She replied that "it was there" but that she did not know who put it there. Pacenti asked, "Who put it in the-in the-glove box?" Defendant responded, "I grabbed it and I shoved it in the glove box, and then he-well, he assisted me shoving it in the-the glove box." She further stated, "But I generally grabbed it and pushed it toward his way."
¶ 17 Statement 4: Defendant was taken to the police station in a transport vehicle. Pacenti next saw defendant in the booking garage area at the police station. She was handcuffed. He showed her the gun that he found in the vehicle, which she identified as hers. Pacenti asked her questions about the gun. While in the garage, defendant made "a lengthy statement kind of combining all of the statements she had previously made" to Pacenti. She stated that she kept her guns in a safe at Smith's apartment. She stated that she picked up Smith and then the right rear passenger. There were no guns in the vehicle before she picked up Smith. She noticed the gun on the console after she picked up Smith and the passenger. When she saw Pacenti behind her, she said "Oh, shit, five-oh," then grabbed the gun and pushed it towards Smith, who placed it in the glove compartment.
¶ 18 The trial court declined to suppress defendant's first statement-made during her initial five minutes in the squad car-but did suppress her remaining statements to Pacenti. The court stated:
" [T] he Court did go through and has reviewed the videotaped statements that were given in the back of the squad car extensively. And so again as it relates to statements number one, which again was from 1:56:50 to 2:02:20, I do find that it was more general in nature. While the questions could be considered somewhat in some situation the officer expressed disbelief with the answers, the Court finds and holds that a reasonable person in the defendant's position innocent of any crime would have believed that she was at liberty to terminate the questions. The officer asked her to sit in the vehicle. She agreed. He never ordered her to do so. He never placed any hands on her. No gun was ever drawn. No cuffs were ever placed. And as I have indicated, the question and answer were conversational in nature."
The court concluded: "I do not find that it was cus-that she was in custody, that it was [an] interrogation, and I'm going to deny the motion to suppress as to that statement." However, the court held that defendant's remaining statements in the squad car were the result of custodial interrogation that was not preceded by a proper advisement of rights.
¶ 19 B. Defendant's Post-Miranda Statements to Munn
¶ 20 Pacenti testified that, after arriving at the police station and speaking with defendant in the booking garage area, he spoke briefly with either Munn or Detective Jeff Koenings. Pacenti told them that he believed that the gun belonged to Smith. Pacenti agreed that defendant was not free to leave when he put her in the squad car until she was arrested. Individuals placed in the back of the squad car are "locked in." When the defendant was in the squad car, he "didn't think [she] was a suspect." He initially characterized her arrest as "an investigative hold." He stated, "She was under arrest pending further investigation with another interview." He also stated, "She was under arrest, but she was not being charged with anything yet." At the outset, "in [Pacenti's] eyes, [defendant] was a witness to this crime that was committed by a passenger." Eventually, however, she "changed over to the other side and almost became a suspect then." Pacenti was not sure "exactly what point that occurred at," but it was her transition to a suspect that led him to arrest her and call for a transport vehicle. He did not advise her of her rights before arresting her.
¶ 21 Pacenti provided Munn with what he learned at the scene and with defendant's statements to him in the booking garage. He also advised Munn what Smith had said. Pacenti contacted the State's Attorney's Office to "screen" the charges against defendant and/or Smith. The charges against defendant were denied, because "[t]hey wanted taped statements" under Miranda.
¶ 22 Munn testified that, when he arrived at work at 8 a.m. on March 25, 2017, Pacenti asked him to interview defendant and Smith. Pacenti told Munn that a gun was found in the vehicle. Munn first interviewed Smith at about 9 a.m. The interview was video recorded, admitted into evidence, and played for the trial court. During the interview, Smith told Munn that defendant was his girlfriend and that, the night before, she picked up Smith, his friend, and two additional women. As defendant was driving everyone to her house, she saw the police pull up behind them. According to Smith, defendant then told him "to put her gun, or whatever, in the glove box." Smith agreed that the gun belonged to defendant and that she had a Firearms Owner Identification Card (FOID) card. Smith agreed that the gun was in the center console. According to Smith, defendant opened the console and told him to put the gun in the glove box. Smith described the gun as "small and black." Smith was "nothing but respectful" during the interview. Smith did not know that the gun was in the vehicle when he entered it.
Munn's video-recorded interview of Smith is identified in the record as PEX 10. It is approximately 10 minutes long.
¶ 23 Munn interviewed defendant at about 10:20 a.m. He advised defendant of her Miranda rights, and she agreed to speak to him. Munn spoke with defendant for about an hour before she agreed to provide a recorded statement. Munn's initial hour-long conversation with defendant was not recorded. Thereafter, she provided a recorded statement, which was admitted into evidence and played for the trial court. During the interview, Munn had a copy of Pacenti's police report, which summarized defendant's statements at the scene and in the booking garage at the police station. The report also included Smith's statements. Defendant agreed that she had smoked marijuana about two hours before she was pulled over. As she was heading home to use the bathroom, she saw the police behind her and said, "Oh, shit, five-oh." When defendant turned the vehicle, she felt the gun next to her arm. Defendant grabbed the gun, told Smith to open the glove box, and pushed the gun toward Smith. Smith then finished putting the gun in the glove box and closed it. At first, defendant did not realize that it was her gun. She did not know the gun was in the vehicle. When she felt the gun, she knew that it was loaded. When she saw the gun later at the police station, she knew it was hers. Defendant has a FOID card but not a concealed carry license. Defendant stated that Pacenti had her "back in the police vehicle not even cuffed." Munn commented to defendant that Pacenti told him that, when defendant was sitting in the back of the squad car, she was not under arrest. Defendant explained that, after Smith's story and her story "didn't collaborate, um, there was more further questions." Pacenti let defendant know, after she got out of the vehicle, that she was going to be arrested. Munn never told defendant that the statements she had made to Pacenti would not be admissible. Defendant was "very forthcoming" during the interview.
Munn's video-recorded statement of defendant is identified in the record as PEX 5. It is approximately 15 minutes long. (PEX 12 is an identical copy of PEX 5.)
¶ 24 Following the testimony, the State argued that there was no evidence of Pacenti's deliberate use of the "question first, warn later" interrogation technique, and that, even if the trial court did find a deliberate use of that technique, the police took curative measures before defendant made her statements to Munn.
¶ 25 In ruling on the motion, the trial court first determined that "deliberateness has been shown through circumstantial evidence." The court stated:
"I believe that [Pacenti] had her and had identified her as a suspect, yet after identifying her as a suspect, he continued with an extensive interrogation, including going and showing her evidence once she was at the booking area of the Aurora Police Department. So I think there is circumstantial evidence that that was what he was intending to do."
Nevertheless, the court next determined that, although Pacenti acted deliberately in questioning defendant without advising her of her rights under Miranda, the police took appropriate curative measures before defendant made her statement to Munn. Thus, the court concluded that defendant's statements to Munn were admissible.
¶ 26 C. Bench Trial
¶ 27 The State's evidence at trial included testimony from Pacenti and Munn. Pacenti testified about the traffic stop, his discovery of the gun, and his initial conversation with defendant in the back of the squad car. Pacenti identified People's exhibit No. 1 as the loaded gun he found in the glove box. The video recording of the squad car's back seat contained defendant's initial statements to Pacenti (PEX 2). It was admitted into evidence and played for the trial court. Pacenti confirmed that, during his conversation with defendant, she stated that the gun found in the glove box was hers. Pacenti testified that he placed defendant in the back of the squad car, rather than the front, because his personal items were in the front passenger seat.
¶ 28 Munn testified as to his interview of defendant. The videotaped interview (PEX 5) was admitted into evidence and played for the trial court. Munn also identified a preprinted form containing a list of the Miranda warnings. Defendant's initials were next to each warning on the form and defendant and Munn signed it. It was admitted into evidence as People's exhibit No. 4.
¶ 29 The parties stipulated that, on the date of the offense, defendant did not possess a concealed carry license but did possess a FOID card. The parties also stipulated that no useful fingerprints were on the gun.
¶ 30 Following the denial of her motion for a directed finding, defendant presented testimony from Smith. Smith testified that defendant picked up Smith and Fultz at a music studio where Smith worked. Defendant then picked up two females, who were friends of Fultz. Smith and defendant did not know the females. When asked how the gun got into the vehicle, Smith testified that he took the gun from defendant's home and put it into the middle console. Defendant did not know the gun was there. According to Smith, when the police pulled behind defendant's vehicle, he took the gun from the middle console and placed it in the glove box. No one else touched the gun. Smith knew that defendant had a valid FOID card, so he moved it to the glove box because he thought that was "how it was supposed to be handled." Smith had been charged with an offense related to the gun and pleaded guilty.
¶ 31 On cross-examination, Smith admitted that he never told anyone, before the day of the trial, that defendant did not know the gun was in the vehicle. He also admitted that he did not appear for trial the first time he was subpoenaed by defendant and that a petition for a rule to show cause was filed against him. Smith acknowledged telling Pacenti that his DNA and fingerprints would not be on the gun and that he did not know anything about it. Smith also acknowledged telling Munn that, after defendant saw the police vehicle behind her, she removed the gun from the console, handed it to him, and told him to put it in the glove box.
¶ 32 Following Smith's testimony, the defense rested.
¶ 33 The State called Munn in rebuttal. Munn identified PEX 10 as his video-recorded interview of Smith. It was played for the court. In the interview, Smith told Munn that defendant opened the center console and directed him to take the gun from the console and place it in the glove box.
¶ 34 The court found defendant guilty of aggravated unlawful use of a weapon (720 ILCS 5/24- 1.6(a)(1)(3)(A-5) (West 2016)). The court found that Smith's testimony was not credible, that the gun was loaded, and that defendant had actual possession of the gun when she felt it in the center console and picked it up. The court pointed to defendant's statements to Pacenti that she knew that there was a loaded firearm in the glove compartment and to her statements to Munn that she felt something in the center console, told Smith to open the glove box, grabbed the gun, pushed it toward Smith, and told him to place it in the glove box.
¶ 35 Following the denial of defendant's motion for a new trial, the court sentenced defendant to 24 months' probation.
¶ 36 This timely appeal followed.
¶ 37 II. ANALYSIS
¶ 38 Defendant argues that the trial court erred in denying her motions to suppress her pre- Miranda statements to Pacenti and her post-Miranda statements to Munn. We agree.
¶ 39 In reviewing a trial court's ruling on a motion to suppress evidence, we defer to the court's factual findings, reversing those findings only if they are against the manifest weight of the evidence. People v. Luedemann, 222 Ill.2d 530, 542 (2006) (citing People v. Sorenson, 196 Ill.2d 245, 431 (2001)). However, we review de novo the trial court's ultimate legal ruling on whether suppression is warranted. Id. We may consider the entire record, including the trial testimony. People v. Slater, 228 Ill.2d 137, 149 (2008); People v. Alfaro, 386 Ill.App.3d 271, 290 (2008). "Where a defendant challenges the admissibility of a confession through a motion to suppress, the State bears the burden of proving the confession was voluntary by a preponderance of evidence." Slater, 228 Ill.2d at 149.
¶ 40 A. Admissibility of Pre-Miranda Statements to Pacenti
¶ 41 Defendant argues that the trial court erred in finding that she was not in custody when she made her initial statements to Pacenti in the back of the squad car. She asserts that the totality of the encounter and the increasing exercise of police control before she was placed in the back of the locked squad car created a custodial atmosphere for purposes of Miranda.
¶ 42 Under Miranda, before the start of an interrogation, a person who "has been taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444. Statements obtained from a defendant during a" 'custodial interrogation'" are inadmissible unless preceded by the defendant's knowing and intelligent waiver of her rights under Miranda. People v. Jordan, 2011 IL App (4th) 100629, ¶ 16 (quoting Miranda, 384 U.S. at 444). Custodial interrogation "consists of two elements: (1) whether an individual was subject to interrogation and (2) whether the interrogation occurred in a custodial situation." People v. Garza, 2018 IL App (3d) 170525, ¶ 13. "An interrogation is any practice that police should know is reasonably likely to evoke an incriminating response from a suspect." People v. Tayborn, 2016 IL App (3d) 130594, ¶ 18. A person is "in custody" for purposes of Miranda if, given the circumstances surrounding the interrogation, a reasonable person, innocent of any crime, would have felt that they were not at liberty to end the interrogation and leave. People v. Braggs, 209 Ill.2d 492, 505-06 (2003). The court will consider the following factors in determining whether a defendant was in custody at the time of the interrogation:" (1) the location, time, length, mood, and mode of the questioning; (2) the number of police officers present during the interrogation; (3) the presence or absence of the family and friends of the individual; (4) any indicia of a formal arrest procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting; (5) the manner in which the individual arrived at the place of questioning, and (6) the age, intelligence, and mental makeup of the accused." Slater, 228 Ill.2d at 150; see also Garza, 2018 IL App (3d) 170525, ¶ 16; Jordan, 2011 IL App (4th) 100629, ¶ 18; People v. Patel, 313 Ill.App.3d 601, 604-05 (2000).
¶ 43 We find Garza and Jordan instructive. In Garza, Rock Falls police officer Scott Allspaugh stopped a minivan for speeding. Garza, 2018 IL App (3d) 170525, ¶ 4. There were five individuals in the minivan, so Allspaugh called for backup. Id. Five minutes later, officer Greyson Scott arrived. Id. Approximately ten minutes after the initial stop, Allspaugh's canine alerted to narcotics at the minivan's rear. Id. ¶ 5. Allspaugh radioed for additional officers and directed the occupants to exit the minivan. Id. Each occupant was searched and asked for identification. Id. None of the occupants possessed contraband or were the subject of an arrest warrant. Id. The occupants were directed to move to an area near a patrol vehicle. Id. Two additional uniformed officers arrived and watched the occupants while Allspaugh and Scott searched the minivan. Id. None of the occupants were under arrest, in handcuffs, or told that they could or could not leave. Id. They were not separated. Id. During the vehicle search, a backpack containing suspected narcotics and contraband was found. Id. ¶ 6. Allspaugh approached the occupants and asked," 'Whose backpack is this?'" Id. ¶¶ 6, 14. At this point, there were a total of six officers present. Id. ¶ 6. The defendant said that the backpack was his. Id. Allspaugh placed the defendant in handcuffs and asked" 'what the white powdery substance was, '" and the defendant said it was cocaine. Id. The trial court granted the defendant's motion to suppress his statements, finding that he was subject to a custodial interrogation that required the issuance of Miranda warnings. Id. ¶ 7. The State appealed.
¶ 44 The Third District affirmed. The court found that the defendant was in custody when Allspaugh inquired about the backpack, because the "defendant and the other occupants had been subjected to several exercises of police authority that evidence a growing custodial atmosphere." Garza, 2018 IL App (3d) 170525, ¶ 18. The court noted that Allspaugh had directed the occupants to exit the vehicle, that each occupant was searched, that the occupants were directed to stand near a squad car where two officers watched over them, and that the police presence had grown to six officers. Id. The court stated: "Although none of the officers told the occupants that they were not free to leave, their overwhelming presence would cause a reasonable person to question their ability to merely walk away without permission." Id. The court found that, "[t]ogether, these circumstances established the type of coercive custodial environment that Miranda is intended to address." Id. In addition, the court found that Allspaugh's questions about the backpack and the white powdery substance constituted interrogation because, when he asked the questions, he knew that the backpack contained illicit substances and drug paraphernalia. Id. ¶ 14; see also People v. Tayborn, 2016 IL App (3d) 130594, ¶ 18 ("An interrogation is any practice that police should know is reasonably likely to evoke an incriminating response from a suspect.")
¶ 45 In Jordan, the defendant was the sole passenger in a Chevrolet Blazer that was stopped by Deputy David Netter for a routine traffic violation. Jordan, 2011 IL App (4th) 100629, ¶ 3. During the stop, the driver informed Netter that he was on mandatory supervised release. Id. Netter returned to his squad car and confirmed that neither individual had warrants. Id. ¶ 4. However, because Netter had previously been informed by another officer that the driver was suspected of drug activity in the area, Netter called that officer regarding the driver before returning to the Blazer. Id. Netter approached the passenger side of the Blazer and asked the defendant to accompany him to his squad car. Id. ¶ 5. At Netter's request, the defendant sat in the back of the squad car with the door open. Id. Netter questioned the defendant for approximately four minutes about where she and the driver were coming from, where they were going, and whether she had smoked marijuana. Id. When asked, she told Netter that there was no contraband in the vehicle but that, if there were, she and the driver did not know about it. Id. Before Netter returned to the Blazer, he locked the defendant in the back of the vehicle and lowered the window, telling her to call out if she needed anything. Id. Netter then asked the driver to exit the vehicle, searched the driver, and searched the vehicle. Id. ¶¶ 6-7. In the meantime, three officers arrived. Id. ¶ 7. No contraband was found in the vehicle. Id. Netter then returned to his squad car and resumed questioning the defendant. Id. ¶ 8. About 15 minutes had passed since he left her alone there. Id. Netter told the defendant that he intended to call the canine unit to search the Blazer further. Id. After about eight additional minutes of questioning, the defendant admitted that she had cannabis concealed in her pants and in the vehicle. Id. She produced the cannabis from her person and told the police where to find the cannabis in the vehicle. Id. She was arrested and charged with possession of cannabis with intent to deliver. Id. ¶ 9. The trial court granted the defendant's motion to suppress, and the State appealed.
¶ 46 On appeal, the Fourth District affirmed. The court noted:
"Generally, due to the 'noncoercive aspect of ordinary traffic stops,' a person temporarily detained during a traffic stop is not in custody. [Citation.] However, if such a person 'thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.'" Id. ¶ 20 (quoting Berkemer v. McVehiclety, 468 U.S. 420, 440 (1984)).
The court found that, by the time the defendant confessed," [her] detention could no longer be fairly characterized as an 'ordinary' traffic stop, during which noncoercive, conversational questioning of the driver and passenger may be said not to be custodial." Id. ¶ 24. The court emphasized the fact that the defendant was "locked in a squad car for about 23 minutes." Id. ¶ 22. The court went on:
"Although [the] defendant was told she was not in any trouble, this assertion was contradicted by Deputy Netter's asking questions designed to elicit incriminating responses, locking defendant in the squad car, and conducting a full search of [the] vehicle, including, [the] defendant was told, an anticipated drug sniff. [The defendant's detention in the backseat of the locked squad car-where arrested individuals are detained-and the presence of twice as many law-enforcement officers as detainees at the scene created a 'police-dominated atmosphere' suggesting custody and reinforced to [the] defendant that she was the target of the investigation." Id. ¶ 23.
The court also noted that the defendant had been "detained and isolated from [the driver] for some 27 minutes" before making her statements. The court stated:
" [The d]efendant's isolation ensured that [the driver] would be unavailable to testify as an occurrence witness on [the] defendant's behalf and vice versa. Moreover, it allowed that [the] defendant and [the driver] could be played against each other as each was removed from the other's range of observation and questioning was alternated between them; neither could know what possibly incriminating information the other was disclosing. Even an innocent person in [the] defendant's position, not privy to her ally's disclosures, could have been unnerved by the possibility of facing untrue allegations, levied by a self-interested friend under the pressure of savvy interrogation practices." Id. ¶ 21.
¶ 47 Here, based on Garza and Jordan, we hold that defendant was subject to custodial interrogation when she made her initial statements to Pacenti in the squad car. To be sure, she was not in custody when, about nine minutes after she was pulled over, Pacenti asked her to exit her vehicle and questioned her in front of his squad car. At that time, she was simply subject to noncoercive, conversational questioning during a traffic stop. However, the atmosphere shifted over the next 15 minutes, before defendant was placed in the back of Pacenti's squad car. During that time, defendant watched as Pacenti removed the four passengers from her vehicle and searched them. At some point while this was going on, defendant's phone rang, and an officer told her that she could not answer it. After being searched, the passengers were directed to the curb area where another officer watched over them. Defendant watched as Pacenti searched her vehicle. The searches themselves "evidenced a growing custodial atmosphere." Garza, 2018 IL App (3d) 170525, ¶ 18. Indeed, once Pacenti located the cannabis and gun in the vehicle, "the 'nonthreatening character' of the stop began to dissipate, and the stop started to evolve into a custodial situation." Id. ¶ 17. This could not have been clearer, especially as defendant watched Pacenti search Smith a second time, handcuff him, place him in the back of a different squad car, and then search her vehicle again. See e.g., Patel, 313 Ill.App.3d 601, 605-06 (2000) (once the driver of a stopped vehicle is taken into custody, the basis for the initial traffic stop ceases, and police questioning of the passenger about matters not germane to the traffic stop transforms the situation into a custodial interrogation).
¶ 48 Indeed, defendant experienced an even greater custodial atmosphere than did the defendant in Garza. In Garza, the defendant was never separated from the other individuals in the vehicle, never saw anyone in the vehicle get arrested, and was never told to sit in the back of a locked squad car. The fact that Pacenti told defendant to "hop in" and defendant commented that "at least it's warm" does not negate the fact that she was directed into the back of a squad car, "where arrested individuals are detained." Jordan, 2011 IL App (4th) 100629, ¶ 23. Although Pacenti did not have to use force or threats to get defendant into the squad car, the fact that defendant was cooperative can be seen as evidence of a reasonable belief that she was not free to refuse, especially given that her prior police experience involved only traffic tickets. We note too that when she gave her first statement, defendant had been separated from Smith, whom she witnessed being arrested, and there were three officers present at the scene.
¶ 49 Based on Garza, it is also clear that Pacenti's interaction with defendant was an interrogation. In Garza, the court found that the question," 'Whose backpack is this?'" was an interrogation because it was reasonably likely to elicit a response. Garza, 2018 IL App (3d) 170525, ¶ 14. Here, Pacenti asked defendant, "What do you think I found inside your vehicle? 'Cuz I already know you know." Given that Pacenti had already told defendant, who was the driver, that he smelled marijuana in the vehicle, it is clear that this question was reasonably likely to elicit an incriminating response. The State, however, erroneously focuses on what Pacenti said later: "So what else is in the vehicle? I understand it's your boyfriend, but-you have to kind of look out for yourself for a few minutes." According to the State, this question, and its accompanying comment, "suggested an expectation that [Pacenti] would receive incriminating information about [Smith], and not defendant." (Emphasis added.) The State overlooks Pacenti's prior question to defendant.
¶ 50 In sum, by the time Pacenti opened the back door to his squad car and directed defendant to "hop in," she had already been detained at the scene for 26 minutes. During this time, Pacenti told her that he smelled marijuana in the vehicle. She witnessed her passengers and her vehicle being searched. She witnessed additional officers being called to the scene. While being monitored by an officer, she was told she could not answer her phone. After a search of her vehicle, defendant saw Smith being handcuffed and placed in the back of a different squad car. After she witnessed this exercise of police authority and was herself placed in a locked squad car, defendant could reasonably believe that she was not free to leave. Moreover, Pacenti should have known that his questions to her in the squad car-starting with asking if she knew what he found in her vehicle- were reasonably likely to evoke an incriminating response. Accordingly, we conclude that defendant was subject to custodial interrogation without prior Miranda warnings when Pacenti questioned her in the squad car. The trial court erred in denying her motion to suppress her statements to Pacenti.
¶ 51 B. Admissibility of Post-Miranda Statements to Officer Munn
¶ 52 Defendant next contends that her post-Miranda statements to Munn should have been suppressed because the officers used an unconstitutional "question first, warn later" interrogation technique.
¶ 53 Where an unwarned statement is suppressed, a subsequent warned statement will generally be admissible, unless it can be determined that the police deliberately employed a" 'question first, warn later'" interrogation strategy. Alfaro, 386 Ill.App.3d at 302. Where that strategy was used, the "statements made after Miranda warnings were given would still be excluded unless curative measures had been taken." Id. In considering whether appropriate curative measures were taken, "the 'relevant question is whether, after receiving midstream Miranda warnings, a reasonable person, in [the] defendant's situation, would have understood that [s]he retained a choice about continuing to talk to police.'" Id. (quoting People v. Lopez, 229 Ill.2d 322, 364 (2008)). The factors to be considered in answering this question "include the passage of time between the unwarned and warned statements, the location where the statements were taken, whether the questioning for the unwarned and warned statements was conducted by the same person, whether details from the unwarned statement were used during the questioning following the warnings, whether the suspect was told that the unwarned statement was likely to be inadmissible against him, and whether it was reasonable to look at the unwarned and warned interviews as parts of a continuum, in which it would have been unnatural to refuse to repeat the statement during the questioning following the warnings." Alfaro, 386 Ill.App.3d at 305 (citing Lopez, 229 Ill.2d at 365).
¶ 54 Here, the trial court found the deliberate use of the "question first, warn later" strategy was established by circumstantial evidence and the State does not dispute that finding on appeal. Thus, the question is whether appropriate curative measures were taken. We hold that they were not.
¶ 55 We have held that Pacenti questioned defendant in the squad car in clear violation of her Miranda rights. (The trial court suppressed all but defendant's first statement to Pacenti but, as noted above, we hold that even that first statement should have been suppressed.) However, the most flagrant violation occurred when Pacenti, after arriving at the police station, met with defendant in the booking area of the police station, showed her the gun, and obtained a lengthy statement essentially combining all of her previous statements that were obtained without any Miranda warnings. Using this information, Pacenti then prepared a police report, which was provided to Munn. To be sure, several hours had passed before defendant met with Munn, and Pacenti was not in the room during the interrogation. However, to the extent that these factors would lean in favor of attenuation, they are clearly outweighed under the circumstances. During the interview, Munn had a copy of Pacenti's police report, which summarized defendant's unwarned statements at the scene and the unwarned statements to Pacenti in the booking garage at the same police station. Although there is no dispute that Munn advised defendant of her Miranda rights, there is also no dispute that defendant was not told that her prior unwarned statements were likely to be inadmissible against her. Given the totality of the circumstances, we cannot find that defendant's statements to Munn were so far removed from her statements to Pacenti in time and location that she would have understood that she had a choice about continuing to talk to him so as to alleviate any taint attributable to the original interrogation. Indeed, to the contrary, "it would have been unnatural to refuse to repeat the statement during the questioning following the warnings." Id. (citing Lopez, 229 Ill.2d at 365).
¶ 56 The State relies on People v. Perry, 38 Ill.App.3d 81 (1976), but the case is readily distinguishable. In Perry, a Chicago Housing Authority security officer observed the defendant fire a gun, placed him under arrest, and found a gun in his pocket. Id. at 83. The security officer incorrectly admonished the defendant of his rights under Miranda, after which the defendant stated that he did not have a FOID card. Id. The defendant was transported to the Chicago police station and interrogated by a Chicago police officer. Id. at 83. During the interrogation, the defendant failed to produce a FOID card when asked. Id. The First District held that the statement to the Chicago police officer was admissible because it "was so far removed both in place and time from the defendant's original surroundings so as to alleviate any taint attributable to the original interrogation." Id. at 85. Here, defendant's statement was not similarly removed. Unlike in Perry, which involved two separate authorities-a Chicago Housing Authority officer and a Chicago police officer-defendant gave her statements to officers within the same department and within the same building. Moreover, in addition to the statements at the scene, Pacenti obtained statements from defendant at the police station, prepared a police report, and shared that with Munn just prior to Munn's interrogation of defendant. There was no indication in Perry that the security officer told the Chicago police officer about the defendant's statement.
¶ 57 Accordingly, we hold that the trial court erred in denying defendant's motion to suppress her statements to Munn.
¶ 58 We are not persuaded by the State's argument that, even if we find that the trial court erred in denying both motions, any error was harmless. "Before a constitutional error can be held harmless, the court must be able to declare a belief that it was harmless to the defendant beyond a reasonable doubt." People v. Laliberte, 246 Ill.App.3d 159, 172 (1993) (citing Chapman v. California, 386 U.S. 18, 23-34 (1967)). This applies to errors in admitting involuntary confessions. Id. at 172-73. "One test for harmless error is to examine the other evidence in the case to see if overwhelming evidence supports the conviction." Id. at 173.
¶ 59 The State argues that the other evidence in the case overwhelming established defendant's guilt. We disagree. To prove defendant guilty of aggravated unlawful use of a weapon, the State had to prove that defendant acted "knowingly." See 720 ILCS 5/24-1.6(a)(1)(3)(A-5) (West 2018)). The State points to (1) evidence that the loaded gun was found in the unlocked glove compartment of defendant's vehicle, (2) the stipulation that defendant did not have a concealed carry license, and (3) Smith's statements to Munn that defendant told him to move the gun into the glove compartment. However, without defendant's statements, the only evidence that defendant knew that the gun was in the car stemmed from Munn's interview of Smith. To be sure, Smith told Munn that defendant directed him to move the gun to the glove box. However, Smith testified at trial that defendant did not know that the gun was in the car. Although the trial court found Smith's trial testimony to be incredible, this finding relied, at least in part, on the fact that some of his testimony conflicted with defendant's statements. Thus, it cannot be said that, without defendant's statements, the evidence as to defendant's knowledge that the gun was in the car was overwhelming.
¶ 60 Based on the foregoing, we reverse defendant's conviction and remand for a new trial. There is no double jeopardy impediment to retrial, because the evidence at trial, including the now-suppressed statements, would allow a rational trier of fact to find defendant guilty of aggravated unlawful use of a weapon beyond a reasonable doubt. See Lopez, 229 Ill.2d at 367 (when evaluating a possible double jeopardy bar, the reviewing court may consider all the evidence at the first trial, even if it will be barred from the second one). Indeed, defendant makes no argument that the evidence against her was insufficient or that her conviction should be reversed outright.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we reverse the judgment of the circuit court of Kane County and remand for a new trial.
¶ 63 Reversed and remanded.