specially concurring in part and dissenting in part:
I concur that the State forfeited the issue of untimeliness of the posttrial motion. However, I disagree with the majority’s holding that defendant did not consent to the search or the viewing of the videotapes. I disagree also with the majority’s apparent view that appellate courts should always review de novo the voluntariness of a consent. Voluntariness of a consent is only reviewed de novo where neither the facts nor the credibility of witnesses is disputed. Anthony, 198 Ill. 2d at 201, 761 N.E.2d at 1191; see also People v. Sims, 192 Ill. 2d 592, 615, 736 N.E.2d 1048, 1060 (2000), citing Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 920, 116 S. Ct. 1657, 1663 (1996); People v. Carlson, 185 Ill. 2d 546, 551, 708 N.E.2d 372, 374 (1999).
Perhaps, the majority’s finding that neither the facts nor the credibility of witnesses is disputed is based on the trial court’s comment that “[i]t is clear that by *** [defendant's body language, the officer thought he [defendant] had given consentí ] and that[,] further[,] [defendant did not voice any objection to the viewing of the tapes at any time.” 338 Ill. App. 3d at 697. However, I find that the trial court’s findings — that (1) Lindburg believed that defendant had voluntarily consented, (2) defendant voiced no objection to the viewing of the tape, and (3) defendant’s lack of objection constituted consent — were credibility findings, which should not be disturbed absent an abuse of discretion.
Regardless, even under the de novo standard, I would affirm the trial court. The record indicates that defendant voluntarily consented to a search of his car. Defendant was 34 years of age, a college graduate employed as a scientist at the time of this incident. When defendant consented, he was not under arrest or in any way detained. Lindburg did not have his weapon drawn, nor had he activated his squad emergency lights. No evidence suggests that Lindburg had made any threats or that his language used or the tone of voice was in any way coercive. The consent was clearly voluntary. United States v. Kozinski, 16 F.3d 795, 810 (7th Cir. 1994).
Moreover, Lindburg did not exceed the scope of that consent. The scope of consent is not determined by the subjective intentions of the consenting party or the subjective interpretation of the searching officer. People v. Baltazar, 295 Ill. App. 3d 146, 149, 691 N.E.2d 1186, 1189 (1998). Rather, the standard for measuring the scope of a suspect’s consent is that of “objective reasonableness.” Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302, Ill S. Ct. at 1803; People v. Ledesma, 327 Ill. App. 3d 805, 814, 763 N.E.2d 806, 814 (2002). This requires consideration of what a typical, reasonable person would have understood by the exchange between the officer and the suspect. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302, 111 S. Ct. at 1803-04; Baltazer, 295 Ill. App. 3d at 149-50, 691 N.E.2d at 1189. The scope of a search is generally defined by its express object. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804. Consequently, the scope of a search may ordinarily be ascertained by evaluating the officer’s express focus or purpose of the search. Ledesma, 327 Ill. App. 3d at 814, 763 N.E.2d at 815. In other words, courts examine what the police said was the reason for the search. Ledesma, 327 Ill. App. 3d at 814, 763 N.E.2d at 815.
In the instant case, defendant was seen at Wal-Mart videotaping a 17-year-old girl. He then returned to Wal-Mart and overheard Officer Lindburg investigating defendant’s videotaping of the girl. Defendant fled at a high rate of speed and was stopped by another officer. Lind-burg, concerned a stalking of the girl was occurring, then questioned defendant about the videotaping and whether he had any pornography. Clearly, the focus of Lindburg’s search was to determine whether defendant was a stalker and whether he possessed illegal pornography.
Lindburg expressly asked about defendant’s videotaping of the Wal-Mart employee. Lindburg asked defendant why he was videotaping a Wal-Mart employee. He then asked defendant whether defendant had anything illegal in the vehicle, and defendant replied that he did not. Lindburg asked if he could make sure, and defendant said that was fine. Since the focus of a search defines its scope, defendant’s consent extended to a viewing of the videotape.
Under those circumstances, a reasonable person would expect that the videotapes could be viewed as part of the search, since they could contain evidence directly relating to defendant’s suspicious activities. See People v. Berry, 314 Ill. App. 3d 1, 15, 731 N.E.2d 853, 865 (2000) (reasonable person would have understood exchange in which defendant said, “ ‘Go right ahead,’ ” in response to officer’s request to look at phone, to mean that defendant consented to officer turning on phone and pulling up number, where only subject under discussion was defendant’s ownership of phone). See also People v. Kelk, 231 Ill. App. 3d 797, 800-01, 596 N.E.2d 1267, 1269 (1992), where this court stated:
“Here, the police officer asked the defendant, immediately prior to his request to ‘look in the car,’ if there were any drugs or weapons in the vehicle. The context of that question sufficiently informed the suspect of what the officer intended to do, and, under those circumstances, the officer would reasonably consider the defendant’s statement — that he did not care if the officer looked in his car — to be a general consent to a search of that car, including contents thereof, as the Supreme Court held in Jimeno.”
The videotapes, one labeled “Aledo Girls,” camera, video camera, pornographic magazine, women’s undergarments, and lingerie found here were clearly within that focus.
Additionally, Lindburg was entitled to continue his search on two other grounds. Immediately after commencing the search, the officer discovered the cannabis and drug paraphernalia. At that time, defendant was placed under arrest and properly advised of his Miranda rights. The continuation of the search resulted in the seizure of the videotapes and female lingerie. Defendant’s contention that even if the court finds the search to be consensual, anything seized after the finding of the cannabis and paraphernalia should be suppressed is without merit for two reasons.
Once a defendant voluntarily consents to a search of an area, in this case, his car, he cannot thereafter complain that a search of the area exceeded the scope of his consent, unless he clearly protests or withdrew that consent. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 303, 111 S. Ct. at 1804; United States v. Stribling, 94 F.3d 321, 324 (7th Cir. 1996). Under Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), once the marijuana and paraphernalia were found, the officer clearly had the authority to complete the search incident to the arrest even without the defendant’s consent, and the scope of the search extended to all areas where the seized items were discovered. New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981); United States v. Richardson, 121 F.3d 1051 (7th Cir. 1997). Given this authority, the officer did not need to seek further consent, and neither the fact that he did nor defendant’s later responses detract from that authority.
Moreover, given this authority, defendant’s shrug in response to Lindburg’s request to view the videotapes further ratified Lindburg’s authority to do so. Defendant could not, after his arrest, reasonably expect that Lindburg would view the tapes roadside — with an arrested suspect — rather than take the tapes to the station to view them.
Finally,' prior to Lindburg viewing the second tape, which contained the child pornography, defendant clearly consented to viewing the second tape and did not withdraw his prior consent. Rather, defendant took an affirmative act indicative of his voluntary consent by offering Lindburg his video camera to use to view the tape, saying he did not want others to see it. This act, coupled with the original consent and the later shrug, in light of his age, education, intelligence, setting, and all relevant circumstances, indicate defendant voluntarily consented to the viewing of the tape. Were the defendant a 17-year-old uneducated individual, or had he in any way indicated an objection to the viewing of the tape at any time, my conclusion might be otherwise. United States v. Price, 54 F.3d 342 (7th Cir. 1995); United States v. Gutierrez-Moran, 125 F.3d 863 (10th Cir. 1997) (unpublished disposition).
For these reasons, I would affirm the trial court.