People v. Besser, 4-94-0825

Decision Date30 June 1995
Docket NumberNo. 4-94-0825,4-94-0825
Citation652 N.E.2d 454,273 Ill.App.3d 164
Parties, 209 Ill.Dec. 914 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Timothy A. BESSER, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Thomas J. Difanis, State's Atty., Urbana, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, State's Attys. Appellate Prosecutor, Jeffrey K. Davison, Staff Atty. (argued), State's Attys. Appellate Prosecutor, Springfield, for People.

Peter J. Vilkelis (argued), Chicago, for Timothy A. Besser.

Justice COOK delivered the opinion of the court:

Defendant, Timothy A. Besser, was charged with unlawful possession with intent to deliver more than 500 grams of a substance containing cannabis. (720 ILCS 550/5(e) (West 1992).) The trial court granted defendant's motion to suppress all physical evidence and statements discovered as a result of an illegal search and the fruits thereof. The State appeals. We affirm.

During the hearing on the motion to suppress, defendant called John Buczkiewicz. Buczkiewicz testified he was a police officer employed by the University of Illinois, and on April 1, 1994, he was assigned to the Illinois State Police Drug Task Force. In that capacity, he and Officers Connolly and Voges were present when Greyhound bus No. 2377 stopped at the Urbana station at approximately 2:50 a.m. Buczkiewicz believed the bus had been scheduled to arrive at 2:40 a.m. The officers' normal routine was to be present for all scheduled arrivals at the Urbana station. The officers had no specific information about this particular bus or any passengers on it.

The bus was filled with 47 to 50 passengers. The officers observed the bus for a moment to see whether any passengers would disembark. A few did, but none were bound for Champaign or Urbana. Buczkiewicz and Voges then entered the bus and Voges walked to the rear. The officers followed their normal routine, which included identifying themselves, speaking with each person individually, and asking the passengers to identify their luggage. Voges asked the passengers to identify their luggage, which was normally stored either overhead or at their feet, while Buczkiewicz remained behind to make sure the aisle was clear, to observe the passengers' reactions, and to ensure nobody tried to harm Voges or take any unclaimed luggage off the bus. The questioning of the passengers took 15 to 20 minutes. Buczkiewicz did not indicate whether the bus was held past its normal departure time.

Defendant was a passenger on bus No. 2377 and had been sitting in front on the driver's side. He disembarked with a few other passengers to smoke when the officers first entered the bus and returned to his seat three to five minutes later. When Voges questioned defendant, defendant denied having any carry-on luggage. Buczkiewicz, however, observed a black bag on the rack above defendant's seat. Voges continued questioning the other passengers, while Buczkiewicz remained behind to see if anybody claimed the bag. Meanwhile, Connolly used a narcotic detection dog to "screen" the luggage in the compartment beneath the bus.

Voges questioned all the passengers but nobody claimed the black bag. Buczkiewicz took the bag, walked through the entire bus, and asked each passenger if it belonged to him or her. Each passenger, including defendant, denied ownership. Buczkiewicz asked the bus driver if the bag could belong to someone other than a passenger. The driver said no, that luggage of that nature was always stored underneath the bus and had a claim ticket to identify it. Buczkiewicz concluded the bag belonged to a passenger and turned it over to Connolly.

Approximately five minutes later, Connolly told Buczkiewicz that he had opened the bag to determine the owner's identity and had found marijuana. Connolly sent Voges back into the bus to question the two passengers who were seated directly beneath the bag, defendant and a passenger named Hampton. Voges questioned them and released Hampton. Defendant admitted it was his bag, and he was arrested about 3:25 a.m. The police had no search warrant for the bag or arrest warrant for defendant. The State did not cross-examine Buczkiewicz and both sides rested without further presentation of evidence.

On a motion to suppress, defendant bears the burden of proving that the search and seizure were illegal. (725 ILCS 5/114-12(b) (West 1992).) The trial court's ruling on a motion to suppress is entitled to great deference and will not be overturned unless against the manifest weight of the evidence. (People v. Murray (1990), 137 Ill.2d 382, 387, 148 Ill.Dec. 7, 9, 560 N.E.2d 309, 311; People v. Smith (1994), 266 Ill.App.3d 362, 364, 203 Ill.Dec. 727, 728, 640 N.E.2d 647, 648.) Where the testimony is uncontested and the credibility of the witnesses is not questioned, a question of law is presented and a reviewing court may consider the question de novo. (People v. Ravellette (1994), 161 Ill.App.3d 906, 911, 200 Ill.Dec. 914, 918, 636 N.E.2d 105, 109; People v. Garriott (1993), 253 Ill.App.3d 1048, 1050, 192 Ill.Dec. 625, 628, 625 N.E.2d 780, 783; In re D.G. (1991), 144 Ill.2d 404, 408-09, 163 Ill.Dec. 494, 495, 581 N.E.2d 648, 649.) Nevertheless, where more than one inference may be drawn from the facts, even uncontested facts, the question remains one for the trier of fact. (See Walter v. Carriage House Hotels, Ltd. (1995), 164 Ill.2d 80, 86, 207 Ill.Dec. 33, 36, 646 N.E.2d 599, 602 (issue "a question of fact for the jury if the facts are disputed or capable of more than one inference"); Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 272, 166 Ill.Dec. 882, 886, 586 N.E.2d 1211, 1215 (where divergent inferences could be drawn from undisputed facts, issue should be decided by trier of fact).) Although only one witness testified in this case, the question whether a reasonable person would have felt free to decline the officers' requests required the trial court to draw an inference from that testimony.

Not all police-citizen encounters constitute fourth amendment "seizures" which must be justified by showing some form of grounds for the detention. A person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. " '[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (People v. Murray (1990), 137 Ill.2d 382, 389, 148 Ill.Dec. 7, 10, 560 N.E.2d 309, 312, quoting United States v. Mendenhall (1980), 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509.) In Mendenhall, Federal drugs agents approached respondent as she walked through an airport concourse. "The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions." Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877, 64 L.Ed.2d at 510.

In Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389, two police officers boarded a bus during a stopover, picked out the defendant passenger (admittedly without articulable suspicion), and asked to see his ticket and identification. The officers then asked for defendant's consent to search his luggage, after advising him he had the right to refuse consent, and found illegal drugs. The Florida Supreme Court ruled that although such questioning may be permissible in other settings, the practice was unconstitutional in the cramped confines of a bus. The United States Supreme Court rejected the application of a per se rule to bus cases,...

To continue reading

Request your trial
12 cases
  • People v. Wardlow
    • United States
    • Supreme Court of Illinois
    • September 24, 1998
    ......494, 581 N.E.2d 648 (1991); People v. Foskey, 136 Ill.2d 66, 76, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990); see also People v. Besser, 273 Ill.App.3d 164, 167, 209 Ill.Dec. 914, 652 N.E.2d 454 (1995).         The fourth amendment to the United States Constitution guarantees ......
  • People v. Reynolds, 1-95-3383
    • United States
    • United States Appellate Court of Illinois
    • December 31, 1997
    ...... When more than one inference may be drawn, the question is one of fact for the jury. See People v. Besser, 273 Ill.App.3d 164, 167, 209 Ill.Dec. 914, 916, 652 N.E.2d 454, 456 (1995). These aspects of the relationship show that a jury could have found ......
  • People v. Ortiz
    • United States
    • United States Appellate Court of Illinois
    • November 1, 2000
    ...... Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, 239 (1983) ; see also People v. Besser, 273 Ill. App.3d 164, 167, 209 Ill.Dec. 914, 652 N.E.2d 454, 457 (1995) . .         In this case, the parties do not dispute that the ......
  • People v. Moore
    • United States
    • United States Appellate Court of Illinois
    • February 7, 1997
    ...... People v. Besser, 273 Ill.App.3d 164, 167, 209 Ill.Dec. 914, 916-17, 652 N.E.2d 454, 456-57 (1995). The trial court's determination concerning factual matters, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT