People v. Evans
Annotate this Case
FIRST DIVISION
December 1, 1997
No. 1-96-0382
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
FRANK EVANS,
Defendant-Appellant. )
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) Appeal from the
Circuit Court of
Cook County
No. 94 CR 27859
Honorable
Stanley Sacks,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Following a bench trial, defendant, Frank Evans, was convicted
and sentenced to a 25-year prison term for controlled substance
trafficking and a 15-year concurrent term for possession with
intent to deliver more than 30 grams of a substance containing a
controlled substance. Defendant appeals, contending (1) the trial
court erred by denying his motion to quash arrest and suppress
evidence; (2) the trial court erred by denying his motion to
dismiss the indictment; and (3) the State failed to prove him
guilty beyond a reasonable doubt. We affirm.
At the hearing on the motion to quash arrest and suppress
evidence, defendant testified that between 6 and 7 a.m. on October
13, 1994, he arrived at O'Hare airport on a flight from Las Vegas.
Defendant got off the plane and proceeded to the baggage claim
area, where he retrieved his two black suitcases and started to
head for the exit.
Defendant testified that before getting out the door, a male
officer and a female officer approached and showed him their
badges. The male officer began talking to defendant, but the
officer never told defendant that he did not have to answer or that
he was free to leave. The male officer asked defendant why he was
in Chicago, and defendant said he was there to visit a friend. The
officer never asked where in Chicago the friend lived. The officer
asked to see defendant's flight ticket, but defendant refused to
produce it because he "didn't want to deal with [the officers]."
The officer also asked for identification, but defendant said he
did not have any identification.
Defendant testified the male officer then said he and his
luggage were going to be detained, at which point another male
officer walked up and joined the other two officers around
defendant. Defendant testified he could not recall the officer
telling him that his bag was being detained to allow a narcotics
dog to sniff it, and he could not recall the officer telling him he
was being detained so that the officers could obtain his
identification.
Defendant testified the three officers started to walk
defendant to another room. Before getting to the room, defendant
turned and ran because he "didn't want to go with them." One of
the male officers chased defendant, tackled him, and put him in
handcuffs.
Defendant testified the three officers forced him into a
small, private room in the airport and threw him onto a chair. The
female officer struck him in the face, and one or more of the
officers asked him for the combination of his suitcases, which he
refused to give. The two male officers took his suitcases into an
adjoining room, where they broke open the locks and recovered PCP.
Defendant testified he never gave the officers permission to break
open those locks.
Officer William Grant testified he was a Drug Enforcement
Administration (DEA) agent assigned to O'Hare airport. On October
13, 1994, he and his partners, Officer Judy Martin and Special
Agent James Stewart, were watching America West Airlines flight 701
as it arrived in Chicago from Las Vegas. Officer Grant explained
that flight 701 is a late-night flight routinely used by drug-
traffickers from the west coast.
Officer Grant observed defendant exit the plane. Defendant
"looked like he didn't know what he was doing. He looked nervous
as he was looking back and forth and up and down the concourse. He
walked very slowly down the corridors."
Officer Grant and Officer Martin followed defendant and the
other passengers to the baggage claim area, where defendant "was
looking around the whole baggage claim area and continuously
turning around and looking at the area where [Officers Grant and
Martin] were standing." Defendant then approached the baggage
carousel and claimed two large hard suitcases.
Officer Grant and Officer Martin approached defendant,
identified themselves as police officers, and said they would like
to ask him a few questions. Defendant said "o.k." Officer Grant
then told defendant he was not under arrest and could leave at any
time, but that he (Grant) would like to see defendant's plane
ticket. Defendant responded that he did not have the plane ticket
and that he must have left it on the plane. Officer Grant then
asked defendant for some photo identification, but defendant
responded that he had no identification with him. Officer Grant
noticed at this time that defendant's hands were trembling and his
voice was cracking.
Officer Grant asked defendant if he lived in Chicago, and
defendant said "no," he was in Chicago to visit some friends.
Officer Grant asked defendant where his friends lived, and
defendant said he did not know. Officer Grant asked defendant how
he was going to get to his friends' house if he did not know where
they lived. Defendant said he did not know.
Officer Grant told defendant he was making a routine narcotics
investigation and that defendant was still free to leave, but that
he would like to ask defendant some more questions. Defendant said
he would answer some more questions. Officer Grant asked defendant
if the luggage he claimed at the baggage area was his and if he
packed the luggage himself. Defendant responded affirmatively to
both questions. Officer Grant also asked defendant if anyone had
given him packages to carry to Chicago and if he was in possession
of a large amount of narcotics or U.S. currency. Defendant
responded negatively to those questions.
Officer Grant then asked defendant for consent to search his
luggage. Defendant pulled a pack of cigarettes out of his pocket,
and in a low voice said he did not know the combination to his
suitcases. Officer Grant asked defendant how he was going to open
the suitcases once he got to his friends' house, and defendant said
he did not know.
Officer Grant told defendant he was going to detain
defendant's luggage to allow a narcotics canine to sniff it for
drugs. If the canine made a "positive hit" on the luggage, Officer
Grant said he would get a search warrant and open it. Officer
Grant also told defendant he was going to detain defendant until
Grant could verify his identity. Officer Grant wanted the
identification of defendant to ensure he was not wanted for any
crimes and to get an address from him so that if the narcotic
canines did not make a positive hit on the suitcases, Grant could
send the suitcases back to defendant.
Officer Grant testified that up to this point, he had not
touched defendant, placed handcuffs on him, or told him he could
not leave. While Grant had been questioning defendant, Officer
Martin stood next to Grant on his left-hand side. After Officer
Grant told defendant he was being detained, Agent Stewart came over
and asked for Officer Martin's assistance in speaking with another
passenger. Officer Martin and Agent Stewart left for five minutes,
during which time defendant sat down on one of the suitcases and
lit a cigarette.
After Officer Martin and Agent Stewart returned, Officer Grant
took one suitcase, Officer Martin took the other, and Agent Stewart
and defendant followed them to an elevator about 15 to 20 feet
away. They took the elevator downstairs and started walking toward
the DEA office, which was approximately 150 yards from the
elevator.
Soon after they all started walking toward the DEA office,
defendant turned and ran in the opposite direction. Officer Grant
and Agent Stewart chased defendant and caught him on an escalator
about 50 to 75 yards from where defendant had first run from the
officers. Two uniformed Chicago police officers helped Officer
Grant and Agent Stewart secure defendant, and Officer Grant then
handcuffed defendant.
Officer Grant, Agent Stewart, and defendant returned to where
Officer Martin was standing with the suitcases, and then they all
walked over to the DEA office. In the office, Officer Grant
removed the handcuffs and put defendant on a chair. When defendant
sat down, he told the officers they could look in the suitcases.
Officer Grant asked defendant for the combination to the suitcases,
and defendant said he did not have the combination but that the
officers could go ahead and open the locks on them. Officer Grant
forcibly opened one of the suitcases and found a five-gallon can
covered in babypowder and surrounded by plastic bags and pillows.
Officer Grant observed what he believed was PCP in the can, so he
arrested defendant.
The trial court found the initial encounter between the
officers and defendant was consensual and that a seizure occurred
only when the officers told defendant they were detaining him and
his bags. The court determined the officers "might" have had an
articulable suspicion to detain defendant's bags based on his "odd"
answers regarding his reason for being in Chicago and his expressed
lack of knowledge regarding the combination to his suitcases. The
court expressed concern whether the officers had reasonable
suspicion to detain defendant. However, the court determined that
the issue whether the officers had a reasonable suspicion to detain
defendant and/or his luggage was "academic," because defendant had
abandoned the luggage when he ran away and left it with the
officers. The court found that defendant forfeited any privacy
interest when he abandoned the luggage. The court denied the
motion to quash arrest and suppress evidence.
The court later held a hearing on defendant's motion to
dismiss the indictment based on the State's failure to produce the
alleged PCP for independent testing. At the hearing, Sergeant John
Malloy testified that after defendant's arrest on October 13, 1994,
officers transported the alleged PCP to the Chicago Police
Department crime lab. The crime lab took a sample out of each
container. Sergeant Malloy and Gerald Pazin, an employee at the
crime lab, testified that the samples taken on October 13 were
still in existence. The parties stipulated that Bill Frost, a
supervisor of the Evidence and Recovered Property Section of the
Chicago Police Department, would testify that the two vial samples
are presently stored at 26th and California.
Sergeant Malloy further testified that on October 14, 1994, he
received a phone call from a supervisor in the chemistry unit of
the crime lab, telling him the two five-gallon containers of PCP
were dangerous and too much for the crime lab to handle. Sergeant
Malloy contacted Commander Grubsic of the Bomb and Arson Unit, who
sent two explosives technicians to the crime lab to pick up the
containers. On October 14, the technicians transported the
containers to an "explosive bunker" at 103rd and Doty.
Sergeant Malloy testified he had subsequent conversations with
Commander Grubsic, who told Malloy that, contrary to earlier
indications, the Bomb and Arson Unit could not dispose of the
containers. Grubsic suggested that Malloy ask the DEA lab to take
the containers. Malloy contacted the DEA lab, which told him it
would not take such large quantities of PCP.
Sergeant Malloy testified he eventually contacted Chemical
Waste Management, which agreed to take the containers. On October
19, Malloy met two employees of Chemical Waste and an employee of
Reidel Environmental Services at 103rd and Doty. The Chemical
Waste employees took samples from the containers and turned them
over to Reidel Environmental. Malloy testified the Chemical Waste
employees then transported the containers to a high intensity
incinerator in Swansea, Illinois.
Larry Lewis, the director of operations of the Industrial and
Environmental Analyst (IEA), testified that on October 19, 1994,
IEA received two plastic containers of a liquid substance from
Reidel Environmental. IEA employees extracted samples of the
liquid from the containers, tested them, and determined that the
liquid was hazardous waste. Lewis testified that one of the
samples remains in a freezer at the IEA facility.
The trial court denied the motion to dismiss the indictment,
finding that two vials of the alleged PCP recovered on October 13,
and another vial recovered on October 19, were still in existence
and available for testing. The court also determined the officers
had acted in good faith in destroying the evidence.
The cause proceeded to a bench trial, where Officer Grant
testified that after arresting defendant at O'Hare on October 13,
he transferred custody of the two five-pound cans to Officer
Hennelly. Officer Hennelly testified he took the cans to the
crime lab on October 13 and used a single glass pipet to take a
sample from each of them. Officer Hennelly did not clean the pipet
after taking the first sample, and he could not tell from the lab
report which was the sample he had taken from the first can.
Officer Hennelly testified he gave the samples to Jerry Pazin,
a chemist at the lab. Officer Hennelly also testified that members
of the Bomb and Arson Unit of the Chicago Police Department later
took the two five-gallon containers to a bunker at 103rd Street.
Victor Bell, an emergency response manager for Smith
Environmental Technology, formerly known as Reidel Environmental
Services, testified that on October 19, 1994, he went to the 103rd
Street bunker to take samples from the two containers recovered
from defendant. Chemical Waste personnel, at the site to dispose
of the cans, actually took the samples for Mr. Bell. The samples
were sealed in Ziploc bags and transported to the IEA labs and
turned over to a project manager there, Jim Dowse. Jim Dowse
testified that on September 28, 1995, he turned those samples over
to Officer Hennelly. Officer Hennelly testified he transported the
samples to the crime lab.
Gloria Grindle, a chemist at the crime lab, testified that on
November 7, 1994, she weighed one of the samples taken by Officer
Hennelly on October 13. That sample weighed 5.54 grams. Ms.
Grindle performed a preliminary precipitant test on the sample,
which indicated the possible presence of PCP. Ms. Grindle then
performed a gas chromatograph mass spectro analysis, or GCMS test,
which confirmed the presence of PCP.
Ms. Grindle testified that on November 9, 1994, she weighed
the other sample taken by Officer Hennelly on October 13. She
concluded that the sample weighed 5.26 grams and, using the GCMS
test, she confirmed the presence of PCP.
On September 28, 1995, Ms. Grindle weighed a sample of the
liquid taken by Chemical Waste on October 19. Ms. Grindle
determined the sample weighed 36.63 grams and, using the GCMS test,
she confirmed the presence of PCP.
Ms. Grindle explained that the GCMS readout gave her an
"abundance" reading reflecting the concentration level of a sample.
A very concentrated sample contains a high abundance of the
substance being tested. The abundance readout for the sample
weighing 5.26 grams was 6 million and the abundance readout for the
sample weighing 5.54 grams was 8 million. The abundance readout
for the sample weighing 36.63 grams was 2 million.
Ms. Grindle testified if someone used a pipet to take a sample
out of a five-gallon can and then used the same pipet, without
cleaning it, to take a sample from a second five-gallon can, there
possibly could be contamination in the sample taken from the second
can. However, Ms. Grindle stated it would be very unlikely that
the sample taken from the second can would have an abundance
reading as high as 6 million if the only PCP in the second can came
from the small amount left on the pipet after it was used in the
first can. Ms. Grindle also stated it was unlikely that a second
sample taken from the second can would produce an abundance reading
of 2 million if the only PCP in the second can came from the small
amount left on the pipet after it was used in the first can.
The trial court convicted defendant of controlled substance
trafficking and possession with intent to deliver more than 30
grams of a substance containing a controlled substance. The court
sentenced defendant to a 25-year prison term for the controlled
substance trafficking and a concurrent 15-year prison term for the
possession with intent to deliver. Defendant appeals.
First, defendant argues the trial court erred by denying his
motion to quash arrest and suppress evidence. For purposes of a
motion to quash arrest and suppress evidence, the trial court is in
the best position to determine the credibility of the witnesses and
resolve conflicts in testimony, because it has heard the testimony
and observed the demeanor of the witnesses. People v. Carter, 288
Ill. App. 3d 658, 662 (1997). Where a motion to quash arrest and
suppress evidence turns on the weight and credibility of the
evidence, we will not disturb the trial court's ruling unless it is
manifestly erroneous. Carter, 288 Ill. App. 3d at 662.
Defendant contends the police officers improperly seized him
and his luggage at O'Hare airport on October 13, 1994, in violation
of the fourth amendment to the United States Constitution. The
fourth amendment to the United States Constitution and article I,
section 6, of the Illinois Constitution protect persons from
unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
Const. 1970, art. I, 6. A seizure occurs when a law enforcement
officer uses physical force to restrain a person's freedom of
movement or shows authority such that a reasonable person would
believe he was not free to leave. People v. Anaya, 279 Ill. App.
3d 940, 945 (1996); United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). No fourth amendment
violation occurs when an officer approaches a person in a public
place, such as the public concourse of an airport, and asks if he
is willing to answer some questions and provide identification.
Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at
1877; Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236,
103 S. Ct. 1319, 1324 (1983). Thus, any information given to
police during such a consensual encounter will not be suppressed.
People v. Forrest, 172 Ill. App. 3d 385, 390 (1988).
Officer Grant testified he and Officer Martin approached
defendant in the baggage claim area of O'Hare. The officers were
dressed in civilian attire, and Grant was not carrying a weapon
that day. Grant initially told defendant he was not under arrest
and could leave at any time, but that he (Grant) would like to ask
defendant some questions and see his plane ticket. The officers
did not touch defendant, nor did they block his access to the exit
doors. Officer Grant testified defendant proceeded to answer
questions posed to him. Defendant disputes Officer Grant's
testimony, but the trial court found Grant's version of events
credible, and we will not substitute our judgment therefor. The
trial court determined this initial exchange between defendant and
the police was consensual and that a reasonable person would have
believed he was free to end the conversation and walk away. We
cannot say the trial court's determination was manifestly
erroneous. See People v. Furlong, 217 Ill. App. 3d 1047, 1052
(1991) (finding a consensual encounter where officers approached
defendant in O'Hare, asked if he would answer some questions,
displayed no weapons, and defendant said "sure.")
However, the State concedes that the consensual nature of the
encounter ended, and a seizure occurred, when defendant stated he
did not know the combination to his luggage and Officer Grant
stated he was detaining defendant and his luggage. Accordingly,
we must determine whether said detentions were constitutional. We
begin by examining the detention of defendant's luggage; then we
will examine the detention of defendant's person.
For the detention of defendant's luggage to pass
constitutional muster, the officers must have had a reasonable and
articulable suspicion that the luggage contained contraband. People
v. Steels, 277 Ill. App. 3d 123, 128 (1995); United States v.
Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983);
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Generally, a reasonable and articulable suspicion to detain a
defendant's luggage is found where the defendant arrives from a
source city or transshipment city for narcotics, exhibits nervous
or unusual mannerisms, and gives incorrect, conflicting,
unsatisfactory, or untruthful answers to a police officer's
questions. See People v. Olivarez, 279 Ill. App. 3d 90 (1996);
People v. Statham, 209 Ill. App. 3d 352 (1991); People v. Forrest,
172 Ill. App. 3d at 393.
Here, defendant flew in on a late-night flight routinely used
by narcotics traffickers. Defendant appeared nervous upon exiting
the plane and later gave conflicting and unsatisfactory answers to
the officers' questions. In particular, defendant stated he was
in town to see some friends, but he did not know where they lived
or how he was going to get there. Defendant also stated that
although the suitcases he claimed at the baggage area were his and
he had packed them himself, he did not know the combinations to
them and did not know how he was going to open them. The trial
court determined that defendant's arrival on a flight routinely
used by drug traffickers, coupled with his nervous behavior and his
conflicting answers to the officers' questions, constituted a
reasonable articulable suspicion to detain his luggage. The
finding of the court was not manifestly erroneous.
United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983), and Reid v. Georgia, 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980), cited by defendant, do not compel a
different result. In Place, officers approached Place in Miami
International Airport while he was waiting to buy tickets to New
York's La Guardia Airport. They requested his airline ticket and
identification. Place complied and consented to a search of the
two suitcases he had checked. The officers decided not to search
the luggage, though, because Place's flight was about to depart.
Place, 462 U.S. at 698, 77 L. Ed. 2d at 115, 103 S. Ct. at 2639-40.
Before leaving, Place made a remark that aroused the officers'
suspicion, and they then inspected the address tags on his checked
luggage and noted discrepancies in the street addresses. Further
investigation revealed neither address existed and that a telephone
number Place had given the airline belonged to a third address on
the same street. The officers then called DEA authorities in New
York to relay their information about Place. Place, 462 U.S. at
698, 77 L. Ed. 2d at 115, 103 S. Ct. at 2640.
Two DEA agents approached Place in La Guardia after he had
deplaned and claimed his two bags. Place refused to consent to a
search of his luggage. The agents then took the bags to Kennedy
Airport, where trained dogs reacted positively to the smaller of
the two bags. Approximately 90 minutes had elapsed since the
agents had seized Place's luggage. Because it was late on a
Friday, the agents kept the bags until Monday morning, when they
secured a search warrant for the smaller bag. Upon opening the
bag, the agents discovered it contained cocaine. Place, 462 U.S.
at 698-99, 77 L. Ed. 2d at 115-16, 103 S. Ct. at 2640.
The Supreme Court held the 90-minute detention of Place's
luggage was in itself sufficient to render the seizure outside the
permissible scope of a Terry stop. Place, 462 U.S. at 709, 77 L. Ed. 2d at 122, 103 S. Ct. at 2645. The Court further held that the
fourth amendment violation was exacerbated by the agents' failure
to accurately inform Place about where they were transporting his
luggage, the length of time he might be dispossessed, and what
arrangements would be made for return of the luggage if the bags
contained no drugs. Place, 462 U.S. at 710, 77 L. Ed. 2d at 122-
23, 103 S. Ct. at 2646. The Court also noted that the agents could
have arranged for trained dogs to be available at La Guardia,
thereby minimizing the intrusion on Place's fourth amendment
interests. Place, 462 U.S. at 709, 77 L. Ed. 2d at 122, 103 S. Ct.
at 2645-46.
Unlike Place, the officers here detained defendant's bags for
well under 90 minutes, and Officer Grant informed defendant where
they were taking his luggage and the reason for the detention.
Officer Grant also testified that although a dog was not available
at the airport when he detained defendant's luggage, a dog would
later be available at the airport to perform the search. Clearly,
the facts of this case differ considerably from those in Place, and
therefore Place provides no support for defendant's argument that
the officers improperly seized his luggage.
Reid is also inapposite. In Reid, the Supreme Court held that
a DEA agent had no reasonable suspicion to detain petitioner where
(1) petitioner had arrived from a source city for cocaine; (2)
petitioner arrived in the early morning; (3) petitioner and his
companion appeared to be trying to conceal that they were traveling
together; and (4) they had no luggage other than their shoulder
bags. The Court determined that petitioner's early morning arrival
from a source city for drugs, carrying only a shoulder bag,
"describe[s] a very large category of presumably innocent
travelers, who would be subject to virtually random seizures were
the Court to conclude that as little foundation as there was in
this case could justify a seizure." Reid, 448 U.S. at 441, 65 L. Ed. 2d at 894, 100 S. Ct. at 2754. The Court further determined
that petitioner's manner of walking through the airport was "simply
too slender a reed to support the seizure in this case." Reid,
448 U.S. at 441, 65 L. Ed. 2d at 894, 100 S. Ct. at 2754.
Unlike Reid, defendant here not only arrived on a flight
routinely used by drug traffickers and exhibited nervous mannerisms
in the airport, but also gave conflicting and unusual answers to
police officers' questions. Defendant's conflicting answers, in
conjunction with his arrival from a flight routinely used by
narcotics traffickers and his nervous behavior, differentiate this
case from Reid and provide a reasonable suspicion for the detention
of his luggage.
We turn next to the detention of defendant's person. A person
may be briefly detained, without probable cause to arrest him,
where a reasonable and articulable suspicion exists that the person
seized is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1;
20 L. Ed. 2d 889; 88 S. Ct. 1868; Reid, 448 U.S. 438; 65 L. Ed. 2d 890; 100 S. Ct. 2752. As discussed above, the officers had a
reasonable suspicion that defendant was transporting narcotics, and
such a suspicion authorized a limited, investigative detention of
defendant short of a full arrest and short of probable cause.
However, defendant argues that the officers exceeded a Terry
stop when they began walking him and his luggage away from the
baggage claim area and toward the small DEA office, which was more
than 150 yards away. Defendant claims he was under arrest at that
point and that the arrest was illegal because the officers lacked
probable cause.
In support, defendant cites Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Two plainclothes detectives
observed Royer at Miami International Airport. They determined he
fit a "drug courier profile," in particular because he was young,
appeared pale and nervous, paid for his ticket in cash, carried
heavy American Tourister luggage, and completed his luggage
identification tag with only the name "Holt" and the destination
"La Guardia." Royer, 460 U.S. at 493, 75 L. Ed. 2d at 233-34, 103 S. Ct. at 1322.
The detectives approached Royer, identified themselves as
policemen, and asked if they could speak with him. Royer responded
affirmatively. At the detectives' request, Royer produced his
airline ticket and driver's license. The airline ticket bore the
name "Holt," while the driver's license bore the name "Royer." The
detectives asked about the discrepancy, and Royer explained a
friend had made the reservation under the name "Holt." Royer
became nervous during the conversation, and the detectives told him
they suspected he was transporting narcotics. Royer, 460 U.S. at
494, 75 L. Ed. 2d at 234, 103 S. Ct. at 1322.
The detectives did not return Royer's airline ticket and
identification, but asked him to accompany them to a room adjacent
to the concourse, about 40 feet away. Royer went with the officers
to the room, described as a "large storage closet" containing a
small desk and two chairs. Without Royer's consent, one of the
detectives retrieved Royer's luggage and brought it into the room.
They asked Royer for consent to search the luggage, and Royer
produced a key and unlocked one of the suitcases. The officers
found marihuana in that suitcase. Royer stated he did not know the
combination to the second suitcase, but he did not object when the
detective explained that the suitcase might have to be broken open.
The detectives then pried open that suitcase and found more
marihuana. Royer, 460 U.S. at 494-95, 75 L. Ed. 2d at 234, 103 S. Ct. at 1322.
Prior to his trial for felony possession of marihuana, Royer
moved to suppress the evidence obtained in the search of the
suitcases. The trial court denied the motion, and Royer later was
convicted. The District Court of Appeal reversed Royer's
conviction, finding Royer's involuntary confinement in the small
room at the airport constituted an illegal arrest and that his
consent to search was invalid because tainted by the unlawful
confinement. Royer, 460 U.S. at 495, 75 L. Ed. 2d at 234-35, 103 S. Ct. at 1322-23. The Supreme Court affirmed, holding that the
detectives exceeded the scope of a permissible investigatory Terry
stop when they moved Royer to the small "police room." The Court
premised its holding on two factors: (1) by the time the
detectives moved Royer, they already had his identification and an
explanation from him as to the discrepancy between the name on his
ticket and the name on his driver's license; therefore, the
detectives had no need to detain him further; and, (2) less
intrusive means were available to determine the content of his
bags; specifically, the officers could have asked Royer for
permission to search his bag prior to moving him, and/or they could
have used a trained dog to detect the presence of controlled
substances in his luggage. Royer, 460 U.S. at 502-06, 75 L. Ed. 2d
at 239-42, 103 S. Ct. at 1327-29.
Unlike Royer, defendant here failed to provide any
identification to the officers prior to their moving him to the DEA
office. Officer Grant testified defendant's continued detention in
the DEA office was needed to verify his identity, so as to ensure
he was not wanted for any crimes and to get an address from him so
they could return the luggage to him if no drugs were found.
Further, the less intrusive means identified in Royer were not
present here. Specifically, the officers asked defendant for
permission to search his luggage prior to moving him, but he did
not know the combination. Also, Officer Grant testified that the
trained dogs were not immediately available prior to defendant's
move to the DEA office.
The fourth amendment is not a guarantee against all searches
and seizures, but only against those that are unreasonable. United
States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 613, 105 S. Ct. 1568, 1573 (1985). We find the officers acted reasonably in
moving defendant and his luggage to the DEA office, given the
reasonable articulable suspicion defendant was carrying illegal
drugs, as well as defendant's refusal to provide any identification
and the lack of other means of determining the content of his bags.
Further, defendant's flight from the officers while en route to the
office, coupled with the officers' reasonable suspicion that
defendant was carrying drugs, constituted probable cause to arrest
defendant. See People v. Belton, 257 Ill. App. 3d 1, 6 (1993).
Officer Grant testified that defendant later freely and voluntarily
consented to the search of his luggage. Accordingly, we find the
trial court's order denying defendant's motion to quash arrest and
suppress the evidence resulting from the search was not manifestly
erroneous.
As a result of our disposition, we need not discuss whether
defendant's flight from the officers constituted an abandonment of
his luggage.
Next, defendant argues the trial court erred by denying his
motion to dismiss the indictment where the two five-gallon cans of
alleged PCP were destroyed six days after defendant's arrest.
Defendant claims the destruction of the evidence denied him an
opportunity to independently test the alleged PCP and thereby
constituted a violation of his due process rights.
We disagree. Defendant was charged with controlled substance
trafficking and possession with intent to deliver more than 30
grams of a substance containing a controlled substance.
Technicians at the crime lab and IEA labs tested over 30 grams of
the substance in the two five-gallon cans recovered from defendant
and confirmed the presence of PCP. Those 30-plus grams were
preserved and available to the defense for independent testing.
Thus, the balance of the 10 gallons was not essential for
establishing defendant's guilt or innocence, and its destruction
did not prejudice defendant. Accordingly, the trial court did not
err in denying defendant's motion to dismiss the indictment. See
People v. Newberry, 265 Ill. App. 3d 688, 690 (1994), aff'd, 166 Ill. 2d 310 (1995) ("[i]n ascertaining whether a due process
violation has occurred, the trial court must proceed with restraint
and dismiss the indictment only when the defendant shows that the
violation has caused actual and substantial prejudice").
Finally, defendant argues the State did not prove him guilty
beyond a reasonable doubt of possession with intent to deliver more
than 30 grams of a substance containing a controlled substance.
Specifically, defendant points to Officer Hennelly's testimony that
on October 13 he used a glass tube to lift a sample of fluid from
one of the five-gallon cans, then used the same tube, without
cleaning it first, to extract fluid from the second can. One
sample weighed 5.54 grams and the other weighed 5.26 grams.
Officer Hennelly did not know which can yielded the first sample
and which can yielded the second sample. Later, on October 19, an
employee of Reidel Environmental Services took a second sample from
one of the cans. That sample weighed 36.63 grams.
Defendant argues that Hennelly contaminated the second can
when he inserted in it the uncleaned glass tube containing PCP from
the first can. Defendant contends that the test result of the
36.63-gram sample taken on October 19 therefore was not reliable
because that sample may have come from the contaminated second can.
That leaves the two October 13 samples, one weighing 5.26 grams and
one weighing 5.54 grams. However, one of those samples also came
from the second can. Thus, defendant contends that, at most, the
State proved him guilty of possessing a little more than five grams
of PCP.
We disagree. Ms. Grindle's testimony indicated that
contamination of the second can was an unlikely cause of the high
abundance of PCP contained in each sample. The trial court
expressly relied on Ms. Grindle's testimony when finding defendant
guilty. We cannot say the trial court's reliance on Ms. Grindle's
testimony was misplaced; it is for the trier of fact to determine
the credibility of the witnesses, the weight to be given their
testimony, and the reasonable inferences to be drawn therefrom.
People v. Steidl, 142 Ill. 2d 204, 226 (1991). Viewing the
evidence in the light most favorable to the prosecution (People v.
Collins, 106 Ill. 2d 237, 261 (1985)), any rational trier of fact
could have found the essential elements of drug trafficking and
possession with intent to deliver more than 30 grams of a substance
containing a controlled substance. Accordingly, we affirm
defendant's convictions.
As part of our judgment, we assess defendant $150 as costs for
this appeal.
Affirmed.
BUCKLEY, J., concurs. CAMBPELL, P.J., specially concurs.
December 1, 1997
No. 1-96-0382
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
FRANK EVANS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
No. 94 CR 27859
Honorable
Stanley Sacks,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
Following a bench trial, defendant, Frank Evans, was convicted
and sentenced to a 25-year prison term for controlled substance
trafficking and a 15-year concurrent term for possession with
intent to deliver more than 30 grams of a substance containing a
controlled substance. Defendant appeals, contending (1) the trial
court erred by denying his motion to quash arrest and suppress
evidence; (2) the trial court erred by denying his motion to
dismiss the indictment; and (3) the State failed to prove him
guilty beyond a reasonable doubt. We affirm.
At the hearing on the motion to quash arrest and suppress
evidence, defendant testified that between 6 and 7 a.m. on October
13, 1994, he arrived at O'Hare airport on a flight from Las Vegas.
Defendant got off the plane and proceeded to the baggage claim
area, where he retrieved his two black suitcases and started to
head for the exit.
Defendant testified that before getting out the door, a male
officer and a female officer approached and showed him their
badges. The male officer began talking to defendant, but the
officer never told defendant that he did not have to answer or that
he was free to leave. The male officer asked defendant why he was
in Chicago, and defendant said he was there to visit a friend. The
officer never asked where in Chicago the friend lived. The officer
asked to see defendant's flight ticket, but defendant refused to
produce it because he "didn't want to deal with [the officers]."
The officer also asked for identification, but defendant said he
did not have any identification.
Defendant testified the male officer then said he and his
luggage were going to be detained, at which point another male
officer walked up and joined the other two officers around
defendant. Defendant testified he could not recall the officer
telling him that his bag was being detained to allow a narcotics
dog to sniff it, and he could not recall the officer telling him he
was being detained so that the officers could obtain his
identification.
Defendant testified the three officers started to walk
defendant to another room. Before getting to the room, defendant
turned and ran because he "didn't want to go with them." One of
the male officers chased defendant, tackled him, and put him in
handcuffs.
Defendant testified the three officers forced him into a
small, private room in the airport and threw him onto a chair. The
female officer struck him in the face, and one or more of the
officers asked him for the combination of his suitcases, which he
refused to give. The two male officers took his suitcases into an
adjoining room, where they broke open the locks and recovered PCP.
Defendant testified he never gave the officers permission to break
open those locks.
Officer William Grant testified he was a Drug Enforcement
Administration (DEA) agent assigned to O'Hare airport. On October
13, 1994, he and his partners, Officer Judy Martin and Special
Agent James Stewart, were watching America West Airlines flight 701
as it arrived in Chicago from Las Vegas. Officer Grant explained
that flight 701 is a late-night flight routinely used by drug-
traffickers from the west coast.
Officer Grant observed defendant exit the plane. Defendant
"looked like he didn't know what he was doing. He looked nervous
as he was looking back and forth and up and down the concourse. He
walked very slowly down the corridors."
Officer Grant and Officer Martin followed defendant and the
other passengers to the baggage claim area, where defendant "was
looking around the whole baggage claim area and continuously
turning around and looking at the area where [Officers Grant and
Martin] were standing." Defendant then approached the baggage
carousel and claimed two large hard suitcases.
Officer Grant and Officer Martin approached defendant,
identified themselves as police officers, and said they would like
to ask him a few questions. Defendant said "o.k." Officer Grant
then told defendant he was not under arrest and could leave at any
time, but that he (Grant) would like to see defendant's plane
ticket. Defendant responded that he did not have the plane ticket
and that he must have left it on the plane. Officer Grant then
asked defendant for some photo identification, but defendant
responded that he had no identification with him. Officer Grant
noticed at this time that defendant's hands were trembling and his
voice was cracking.
Officer Grant asked defendant if he lived in Chicago, and
defendant said "no," he was in Chicago to visit some friends.
Officer Grant asked defendant where his friends lived, and
defendant said he did not know. Officer Grant asked defendant how
he was going to get to his friends' house if he did not know where
they lived. Defendant said he did not know.
Officer Grant told defendant he was making a routine narcotics
investigation and that defendant was still free to leave, but that
he would like to ask defendant some more questions. Defendant said
he would answer some more questions. Officer Grant asked defendant
if the luggage he claimed at the baggage area was his and if he
packed the luggage himself. Defendant responded affirmatively to
both questions. Officer Grant also asked defendant if anyone had
given him packages to carry to Chicago and if he was in possession
of a large amount of narcotics or U.S. currency. Defendant
responded negatively to those questions.
Officer Grant then asked defendant for consent to search his
luggage. Defendant pulled a pack of cigarettes out of his pocket,
and in a low voice said he did not know the combination to his
suitcases. Officer Grant asked defendant how he was going to open
the suitcases once he got to his friends' house, and defendant said
he did not know.
Officer Grant told defendant he was going to detain
defendant's luggage to allow a narcotics canine to sniff it for
drugs. If the canine made a "positive hit" on the luggage, Officer
Grant said he would get a search warrant and open it. Officer
Grant also told defendant he was going to detain defendant until
Grant could verify his identity. Officer Grant wanted the
identification of defendant to ensure he was not wanted for any
crimes and to get an address from him so that if the narcotic
canines did not make a positive hit on the suitcases, Grant could
send the suitcases back to defendant.
Officer Grant testified that up to this point, he had not
touched defendant, placed handcuffs on him, or told him he could
not leave. While Grant had been questioning defendant, Officer
Martin stood next to Grant on his left-hand side. After Officer
Grant told defendant he was being detained, Agent Stewart came over
and asked for Officer Martin's assistance in speaking with another
passenger. Officer Martin and Agent Stewart left for five minutes,
during which time defendant sat down on one of the suitcases and
lit a cigarette.
After Officer Martin and Agent Stewart returned, Officer Grant
took one suitcase, Officer Martin took the other, and Agent Stewart
and defendant followed them to an elevator about 15 to 20 feet
away. They took the elevator downstairs and started walking toward
the DEA office, which was approximately 150 yards from the
elevator.
Soon after they all started walking toward the DEA office,
defendant turned and ran in the opposite direction. Officer Grant
and Agent Stewart chased defendant and caught him on an escalator
about 50 to 75 yards from where defendant had first run from the
officers. Two uniformed Chicago police officers helped Officer
Grant and Agent Stewart secure defendant, and Officer Grant then
handcuffed defendant.
Officer Grant, Agent Stewart, and defendant returned to where
Officer Martin was standing with the suitcases, and then they all
walked over to the DEA office. In the office, Officer Grant
removed the handcuffs and put defendant on a chair. When defendant
sat down, he told the officers they could look in the suitcases.
Officer Grant asked defendant for the combination to the suitcases,
and defendant said he did not have the combination but that the
officers could go ahead and open the locks on them. Officer Grant
forcibly opened one of the suitcases and found a five-gallon can
covered in babypowder and surrounded by plastic bags and pillows.
Officer Grant observed what he believed was PCP in the can, so he
arrested defendant.
The trial court found the initial encounter between the
officers and defendant was consensual and that a seizure occurred
only when the officers told defendant they were detaining him and
his bags. The court determined the officers "might" have had an
articulable suspicion to detain defendant's bags based on his "odd"
answers regarding his reason for being in Chicago and his expressed
lack of knowledge regarding the combination to his suitcases. The
court expressed concern whether the officers had reasonable
suspicion to detain defendant. However, the court determined that
the issue whether the officers had a reasonable suspicion to detain
defendant and/or his luggage was "academic," because defendant had
abandoned the luggage when he ran away and left it with the
officers. The court found that defendant forfeited any privacy
interest when he abandoned the luggage. The court denied the
motion to quash arrest and suppress evidence.
The court later held a hearing on defendant's motion to
dismiss the indictment based on the State's failure to produce the
alleged PCP for independent testing. At the hearing, Sergeant John
Malloy testified that after defendant's arrest on October 13, 1994,
officers transported the alleged PCP to the Chicago Police
Department crime lab. The crime lab took a sample out of each
container. Sergeant Malloy and Gerald Pazin, an employee at the
crime lab, testified that the samples taken on October 13 were
still in existence. The parties stipulated that Bill Frost, a
supervisor of the Evidence and Recovered Property Section of the
Chicago Police Department, would testify that the two vial samples
are presently stored at 26th and California.
Sergeant Malloy further testified that on October 14, 1994, he
received a phone call from a supervisor in the chemistry unit of
the crime lab, telling him the two five-gallon containers of PCP
were dangerous and too much for the crime lab to handle. Sergeant
Malloy contacted Commander Grubsic of the Bomb and Arson Unit, who
sent two explosives technicians to the crime lab to pick up the
containers. On October 14, the technicians transported the
containers to an "explosive bunker" at 103rd and Doty.
Sergeant Malloy testified he had subsequent conversations with
Commander Grubsic, who told Malloy that, contrary to earlier
indications, the Bomb and Arson Unit could not dispose of the
containers. Grubsic suggested that Malloy ask the DEA lab to take
the containers. Malloy contacted the DEA lab, which told him it
would not take such large quantities of PCP.
Sergeant Malloy testified he eventually contacted Chemical
Waste Management, which agreed to take the containers. On October
19, Malloy met two employees of Chemical Waste and an employee of
Reidel Environmental Services at 103rd and Doty. The Chemical
Waste employees took samples from the containers and turned them
over to Reidel Environmental. Malloy testified the Chemical Waste
employees then transported the containers to a high intensity
incinerator in Swansea, Illinois.
Larry Lewis, the director of operations of the Industrial and
Environmental Analyst (IEA), testified that on October 19, 1994,
IEA received two plastic containers of a liquid substance from
Reidel Environmental. IEA employees extracted samples of the
liquid from the containers, tested them, and determined that the
liquid was hazardous waste. Lewis testified that one of the
samples remains in a freezer at the IEA facility.
The trial court denied the motion to dismiss the indictment,
finding that two vials of the alleged PCP recovered on October 13,
and another vial recovered on October 19, were still in existence
and available for testing. The court also determined the officers
had acted in good faith in destroying the evidence.
The cause proceeded to a bench trial, where Officer Grant
testified that after arresting defendant at O'Hare on October 13,
he transferred custody of the two five-pound cans to Officer
Hennelly. Officer Hennelly testified he took the cans to the
crime lab on October 13 and used a single glass pipet to take a
sample from each of them. Officer Hennelly did not clean the pipet
after taking the first sample, and he could not tell from the lab
report which was the sample he had taken from the first can.
Officer Hennelly testified he gave the samples to Jerry Pazin,
a chemist at the lab. Officer Hennelly also testified that members
of the Bomb and Arson Unit of the Chicago Police Department later
took the two five-gallon containers to a bunker at 103rd Street.
Victor Bell, an emergency response manager for Smith
Environmental Technology, formerly known as Reidel Environmental
Services, testified that on October 19, 1994, he went to the 103rd
Street bunker to take samples from the two containers recovered
from defendant. Chemical Waste personnel, at the site to dispose
of the cans, actually took the samples for Mr. Bell. The samples
were sealed in Ziploc bags and transported to the IEA labs and
turned over to a project manager there, Jim Dowse. Jim Dowse
testified that on September 28, 1995, he turned those samples over
to Officer Hennelly. Officer Hennelly testified he transported the
samples to the crime lab.
Gloria Grindle, a chemist at the crime lab, testified that on
November 7, 1994, she weighed one of the samples taken by Officer
Hennelly on October 13. That sample weighed 5.54 grams. Ms.
Grindle performed a preliminary precipitant test on the sample,
which indicated the possible presence of PCP. Ms. Grindle then
performed a gas chromatograph mass spectro analysis, or GCMS test,
which confirmed the presence of PCP.
Ms. Grindle testified that on November 9, 1994, she weighed
the other sample taken by Officer Hennelly on October 13. She
concluded that the sample weighed 5.26 grams and, using the GCMS
test, she confirmed the presence of PCP.
On September 28, 1995, Ms. Grindle weighed a sample of the
liquid taken by Chemical Waste on October 19. Ms. Grindle
determined the sample weighed 36.63 grams and, using the GCMS test,
she confirmed the presence of PCP.
Ms. Grindle explained that the GCMS readout gave her an
"abundance" reading reflecting the concentration level of a sample.
A very concentrated sample contains a high abundance of the
substance being tested. The abundance readout for the sample
weighing 5.26 grams was 6 million and the abundance readout for the
sample weighing 5.54 grams was 8 million. The abundance readout
for the sample weighing 36.63 grams was 2 million.
Ms. Grindle testified if someone used a pipet to take a sample
out of a five-gallon can and then used the same pipet, without
cleaning it, to take a sample from a second five-gallon can, there
possibly could be contamination in the sample taken from the second
can. However, Ms. Grindle stated it would be very unlikely that
the sample taken from the second can would have an abundance
reading as high as 6 million if the only PCP in the second can came
from the small amount left on the pipet after it was used in the
first can. Ms. Grindle also stated it was unlikely that a second
sample taken from the second can would produce an abundance reading
of 2 million if the only PCP in the second can came from the small
amount left on the pipet after it was used in the first can.
The trial court convicted defendant of controlled substance
trafficking and possession with intent to deliver more than 30
grams of a substance containing a controlled substance. The court
sentenced defendant to a 25-year prison term for the controlled
substance trafficking and a concurrent 15-year prison term for the
possession with intent to deliver. Defendant appeals.
First, defendant argues the trial court erred by denying his
motion to quash arrest and suppress evidence. For purposes of a
motion to quash arrest and suppress evidence, the trial court is in
the best position to determine the credibility of the witnesses and
resolve conflicts in testimony, because it has heard the testimony
and observed the demeanor of the witnesses. People v. Carter, 288
Ill. App. 3d 658, 662 (1997). Where a motion to quash arrest and
suppress evidence turns on the weight and credibility of the
evidence, we will not disturb the trial court's ruling unless it is
manifestly erroneous. Carter, 288 Ill. App. 3d at 662.
Defendant contends the police officers improperly seized him
and his luggage at O'Hare airport on October 13, 1994, in violation
of the fourth amendment to the United States Constitution. The
fourth amendment to the United States Constitution and article I,
section 6, of the Illinois Constitution protect persons from
unreasonable searches and seizures. U.S. Const., amend. IV; Ill.
Const. 1970, art. I, 6. A seizure occurs when a law enforcement
officer uses physical force to restrain a person's freedom of
movement or shows authority such that a reasonable person would
believe he was not free to leave. People v. Anaya, 279 Ill. App.
3d 940, 945 (1996); United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). No fourth amendment
violation occurs when an officer approaches a person in a public
place, such as the public concourse of an airport, and asks if he
is willing to answer some questions and provide identification.
Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at
1877; Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236,
103 S. Ct. 1319, 1324 (1983). Thus, any information given to
police during such a consensual encounter will not be suppressed.
People v. Forrest, 172 Ill. App. 3d 385, 390 (1988).
Officer Grant testified he and Officer Martin approached
defendant in the baggage claim area of O'Hare. The officers were
dressed in civilian attire, and Grant was not carrying a weapon
that day. Grant initially told defendant he was not under arrest
and could leave at any time, but that he (Grant) would like to ask
defendant some questions and see his plane ticket. The officers
did not touch defendant, nor did they block his access to the exit
doors. Officer Grant testified defendant proceeded to answer
questions posed to him. Defendant disputes Officer Grant's
testimony, but the trial court found Grant's version of events
credible, and we will not substitute our judgment therefor. The
trial court determined this initial exchange between defendant and
the police was consensual and that a reasonable person would have
believed he was free to end the conversation and walk away. We
cannot say the trial court's determination was manifestly
erroneous. See People v. Furlong, 217 Ill. App. 3d 1047, 1052
(1991) (finding a consensual encounter where officers approached
defendant in O'Hare, asked if he would answer some questions,
displayed no weapons, and defendant said "sure.")
However, the State concedes that the consensual nature of the
encounter ended, and a seizure occurred, when defendant stated he
did not know the combination to his luggage and Officer Grant
stated he was detaining defendant and his luggage. Accordingly,
we must determine whether said detentions were constitutional. We
begin by examining the detention of defendant's luggage; then we
will examine the detention of defendant's person.
For the detention of defendant's luggage to pass
constitutional muster, the officers must have had a reasonable and
articulable suspicion that the luggage contained contraband. People
v. Steels, 277 Ill. App. 3d 123, 128 (1995); United States v.
Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983);
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
Generally, a reasonable and articulable suspicion to detain a
defendant's luggage is found where the defendant arrives from a
source city or transshipment city for narcotics, exhibits nervous
or unusual mannerisms, and gives incorrect, conflicting,
unsatisfactory, or untruthful answers to a police officer's
questions. See People v. Olivarez, 279 Ill. App. 3d 90 (1996);
People v. Statham, 209 Ill. App. 3d 352 (1991); People v. Forrest,
172 Ill. App. 3d at 393.
Here, defendant flew in on a late-night flight routinely used
by narcotics traffickers. Defendant appeared nervous upon exiting
the plane and later gave conflicting and unsatisfactory answers to
the officers' questions. In particular, defendant stated he was
in town to see some friends, but he did not know where they lived
or how he was going to get there. Defendant also stated that
although the suitcases he claimed at the baggage area were his and
he had packed them himself, he did not know the combinations to
them and did not know how he was going to open them. The trial
court determined that defendant's arrival on a flight routinely
used by drug traffickers, coupled with his nervous behavior and his
conflicting answers to the officers' questions, constituted a
reasonable articulable suspicion to detain his luggage. The
finding of the court was not manifestly erroneous.
United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983), and Reid v. Georgia, 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980), cited by defendant, do not compel a
different result. In Place, officers approached Place in Miami
International Airport while he was waiting to buy tickets to New
York's La Guardia Airport. They requested his airline ticket and
identification. Place complied and consented to a search of the
two suitcases he had checked. The officers decided not to search
the luggage, though, because Place's flight was about to depart.
Place, 462 U.S. at 698, 77 L. Ed. 2d at 115, 103 S. Ct. at 2639-40.
Before leaving, Place made a remark that aroused the officers'
suspicion, and they then inspected the address tags on his checked
luggage and noted discrepancies in the street addresses. Further
investigation revealed neither address existed and that a telephone
number Place had given the airline belonged to a third address on
the same street. The officers then called DEA authorities in New
York to relay their information about Place. Place, 462 U.S. at
698, 77 L. Ed. 2d at 115, 103 S. Ct. at 2640.
Two DEA agents approached Place in La Guardia after he had
deplaned and claimed his two bags. Place refused to consent to a
search of his luggage. The agents then took the bags to Kennedy
Airport, where trained dogs reacted positively to the smaller of
the two bags. Approximately 90 minutes had elapsed since the
agents had seized Place's luggage. Because it was late on a
Friday, the agents kept the bags until Monday morning, when they
secured a search warrant for the smaller bag. Upon opening the
bag, the agents discovered it contained cocaine. Place, 462 U.S.
at 698-99, 77 L. Ed. 2d at 115-16, 103 S. Ct. at 2640.
The Supreme Court held the 90-minute detention of Place's
luggage was in itself sufficient to render the seizure outside the
permissible scope of a Terry stop. Place, 462 U.S. at 709, 77 L. Ed. 2d at 122, 103 S. Ct. at 2645. The Court further held that the
fourth amendment violation was exacerbated by the agents' failure
to accurately inform Place about where they were transporting his
luggage, the length of time he might be dispossessed, and what
arrangements would be made for return of the luggage if the bags
contained no drugs. Place, 462 U.S. at 710, 77 L. Ed. 2d at 122-
23, 103 S. Ct. at 2646. The Court also noted that the agents could
have arranged for trained dogs to be available at La Guardia,
thereby minimizing the intrusion on Place's fourth amendment
interests. Place, 462 U.S. at 709, 77 L. Ed. 2d at 122, 103 S. Ct.
at 2645-46.
Unlike Place, the officers here detained defendant's bags for
well under 90 minutes, and Officer Grant informed defendant where
they were taking his luggage and the reason for the detention.
Officer Grant also testified that although a dog was not available
at the airport when he detained defendant's luggage, a dog would
later be available at the airport to perform the search. Clearly,
the facts of this case differ considerably from those in Place, and
therefore Place provides no support for defendant's argument that
the officers improperly seized his luggage.
Reid is also inapposite. In Reid, the Supreme Court held that
a DEA agent had no reasonable suspicion to detain petitioner where
(1) petitioner had arrived from a source city for cocaine; (2)
petitioner arrived in the early morning; (3) petitioner and his
companion appeared to be trying to conceal that they were traveling
together; and (4) they had no luggage other than their shoulder
bags. The Court determined that petitioner's early morning arrival
from a source city for drugs, carrying only a shoulder bag,
"describe[s] a very large category of presumably innocent
travelers, who would be subject to virtually random seizures were
the Court to conclude that as little foundation as there was in
this case could justify a seizure." Reid, 448 U.S. at 441, 65 L. Ed. 2d at 894, 100 S. Ct. at 2754. The Court further determined
that petitioner's manner of walking through the airport was "simply
too slender a reed to support the seizure in this case." Reid,
448 U.S. at 441, 65 L. Ed. 2d at 894, 100 S. Ct. at 2754.
Unlike Reid, defendant here not only arrived on a flight
routinely used by drug traffickers and exhibited nervous mannerisms
in the airport, but also gave conflicting and unusual answers to
police officers' questions. Defendant's conflicting answers, in
conjunction with his arrival from a flight routinely used by
narcotics traffickers and his nervous behavior, differentiate this
case from Reid and provide a reasonable suspicion for the detention
of his luggage.
We turn next to the detention of defendant's person. A person
may be briefly detained, without probable cause to arrest him,
where a reasonable and articulable suspicion exists that the person
seized is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1;
20 L. Ed. 2d 889; 88 S. Ct. 1868; Reid, 448 U.S. 438; 65 L. Ed. 2d 890; 100 S. Ct. 2752. As discussed above, the officers had a
reasonable suspicion that defendant was transporting narcotics, and
such a suspicion authorized a limited, investigative detention of
defendant short of a full arrest and short of probable cause.
However, defendant argues that the officers exceeded a Terry
stop when they began walking him and his luggage away from the
baggage claim area and toward the small DEA office, which was more
than 150 yards away. Defendant claims he was under arrest at that
point and that the arrest was illegal because the officers lacked
probable cause.
In support, defendant cites Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). Two plainclothes detectives
observed Royer at Miami International Airport. They determined he
fit a "drug courier profile," in particular because he was young,
appeared pale and nervous, paid for his ticket in cash, carried
heavy American Tourister luggage, and completed his luggage
identification tag with only the name "Holt" and the destination
"La Guardia." Royer, 460 U.S. at 493, 75 L. Ed. 2d at 233-34, 103 S. Ct. at 1322.
The detectives approached Royer, identified themselves as
policemen, and asked if they could speak with him. Royer responded
affirmatively. At the detectives' request, Royer produced his
airline ticket and driver's license. The airline ticket bore the
name "Holt," while the driver's license bore the name "Royer." The
detectives asked about the discrepancy, and Royer explained a
friend had made the reservation under the name "Holt." Royer
became nervous during the conversation, and the detectives told him
they suspected he was transporting narcotics. Royer, 460 U.S. at
494, 75 L. Ed. 2d at 234, 103 S. Ct. at 1322.
The detectives did not return Royer's airline ticket and
identification, but asked him to accompany them to a room adjacent
to the concourse, about 40 feet away. Royer went with the officers
to the room, described as a "large storage closet" containing a
small desk and two chairs. Without Royer's consent, one of the
detectives retrieved Royer's luggage and brought it into the room.
They asked Royer for consent to search the luggage, and Royer
produced a key and unlocked one of the suitcases. The officers
found marihuana in that suitcase. Royer stated he did not know the
combination to the second suitcase, but he did not object when the
detective explained that the suitcase might have to be broken open.
The detectives then pried open that suitcase and found more
marihuana. Royer, 460 U.S. at 494-95, 75 L. Ed. 2d at 234, 103 S. Ct. at 1322.
Prior to his trial for felony possession of marihuana, Royer
moved to suppress the evidence obtained in the search of the
suitcases. The trial court denied the motion, and Royer later was
convicted. The District Court of Appeal reversed Royer's
conviction, finding Royer's involuntary confinement in the small
room at the airport constituted an illegal arrest and that his
consent to search was invalid because tainted by the unlawful
confinement. Royer, 460 U.S. at 495, 75 L. Ed. 2d at 234-35, 103 S. Ct. at 1322-23. The Supreme Court affirmed, holding that the
detectives exceeded the scope of a permissible investigatory Terry
stop when they moved Royer to the small "police room." The Court
premised its holding on two factors: (1) by the time the
detectives moved Royer, they already had his identification and an
explanation from him as to the discrepancy between the name on his
ticket and the name on his driver's license; therefore, the
detectives had no need to detain him further; and, (2) less
intrusive means were available to determine the content of his
bags; specifically, the officers could have asked Royer for
permission to search his bag prior to moving him, and/or they could
have used a trained dog to detect the presence of controlled
substances in his luggage. Royer, 460 U.S. at 502-06, 75 L. Ed. 2d
at 239-42, 103 S. Ct. at 1327-29.
Unlike Royer, defendant here failed to provide any
identification to the officers prior to their moving him to the DEA
office. Officer Grant testified defendant's continued detention in
the DEA office was needed to verify his identity, so as to ensure
he was not wanted for any crimes and to get an address from him so
they could return the luggage to him if no drugs were found.
Further, the less intrusive means identified in Royer were not
present here. Specifically, the officers asked defendant for
permission to search his luggage prior to moving him, but he did
not know the combination. Also, Officer Grant testified that the
trained dogs were not immediately available prior to defendant's
move to the DEA office.
The fourth amendment is not a guarantee against all searches
and seizures, but only against those that are unreasonable. United
States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 613, 105 S. Ct. 1568, 1573 (1985). We find the officers acted reasonably in
moving defendant and his luggage to the DEA office, given the
reasonable articulable suspicion defendant was carrying illegal
drugs, as well as defendant's refusal to provide any identification
and the lack of other means of determining the content of his bags.
Further, defendant's flight from the officers while en route to the
office, coupled with the officers' reasonable suspicion that
defendant was carrying drugs, constituted probable cause to arrest
defendant. See People v. Belton, 257 Ill. App. 3d 1, 6 (1993).
Officer Grant testified that defendant later freely and voluntarily
consented to the search of his luggage. Accordingly, we find the
trial court's order denying defendant's motion to quash arrest and
suppress the evidence resulting from the search was not manifestly
erroneous.
As a result of our disposition, we need not discuss whether
defendant's flight from the officers constituted an abandonment of
his luggage.
Next, defendant argues the trial court erred by denying his
motion to dismiss the indictment where the two five-gallon cans of
alleged PCP were destroyed six days after defendant's arrest.
Defendant claims the destruction of the evidence denied him an
opportunity to independently test the alleged PCP and thereby
constituted a violation of his due process rights.
We disagree. Defendant was charged with controlled substance
trafficking and possession with intent to deliver more than 30
grams of a substance containing a controlled substance.
Technicians at the crime lab and IEA labs tested over 30 grams of
the substance in the two five-gallon cans recovered from defendant
and confirmed the presence of PCP. Those 30-plus grams were
preserved and available to the defense for independent testing.
Thus, the balance of the 10 gallons was not essential for
establishing defendant's guilt or innocence, and its destruction
did not prejudice defendant. Accordingly, the trial court did not
err in denying defendant's motion to dismiss the indictment. See
People v. Newberry, 265 Ill. App. 3d 688, 690 (1994), aff'd, 166 Ill. 2d 310 (1995) ("[i]n ascertaining whether a due process
violation has occurred, the trial court must proceed with restraint
and dismiss the indictment only when the defendant shows that the
violation has caused actual and substantial prejudice").
Finally, defendant argues the State did not prove him guilty
beyond a reasonable doubt of possession with intent to deliver more
than 30 grams of a substance containing a controlled substance.
Specifically, defendant points to Officer Hennelly's testimony that
on October 13 he used a glass tube to lift a sample of fluid from
one of the five-gallon cans, then used the same tube, without
cleaning it first, to extract fluid from the second can. One
sample weighed 5.54 grams and the other weighed 5.26 grams.
Officer Hennelly did not know which can yielded the first sample
and which can yielded the second sample. Later, on October 19, an
employee of Reidel Environmental Services took a second sample from
one of the cans. That sample weighed 36.63 grams.
Defendant argues that Hennelly contaminated the second can
when he inserted in it the uncleaned glass tube containing PCP from
the first can. Defendant contends that the test result of the
36.63-gram sample taken on October 19 therefore was not reliable
because that sample may have come from the contaminated second can.
That leaves the two October 13 samples, one weighing 5.26 grams and
one weighing 5.54 grams. However, one of those samples also came
from the second can. Thus, defendant contends that, at most, the
State proved him guilty of possessing a little more than five grams
of PCP.
We disagree. Ms. Grindle's testimony indicated that
contamination of the second can was an unlikely cause of the high
abundance of PCP contained in each sample. The trial court
expressly relied on Ms. Grindle's testimony when finding defendant
guilty. We cannot say the trial court's reliance on Ms. Grindle's
testimony was misplaced; it is for the trier of fact to determine
the credibility of the witnesses, the weight to be given their
testimony, and the reasonable inferences to be drawn therefrom.
People v. Steidl, 142 Ill. 2d 204, 226 (1991). Viewing the
evidence in the light most favorable to the prosecution (People v.
Collins, 106 Ill. 2d 237, 261 (1985)), any rational trier of fact
could have found the essential elements of drug trafficking and
possession with intent to deliver more than 30 grams of a substance
containing a controlled substance. Accordingly, we affirm
defendant's convictions.
As part of our judgment, we assess defendant $150 as costs for
this appeal.
Affirmed.
BUCKLEY, J., concurs. CAMBPELL, P.J., specially concurs.
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