People v. Jones

• Decision Date: 30 June 1989
• Docket Number: No. 1-88-0214,1-88-0214
• Court: United States Appellate Court of Illinois
• Parties: , 137 Ill.Dec. 317 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bruce JONES, Defendant-Appellant.

Page 1332

545 N.E.2d 1332

190 Ill.App.3d 416, 137 Ill.Dec. 317

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bruce JONES, Defendant-Appellant.

No. 1-88-0214.

Appellate Court of Illinois First District, Fifth Division.

June 30, 1989.

Dissenting Opinion Nov. 17, 1989.

Larry M. Evans, Flood, Bredemann & Evans, Park Ridge, for defendant-appellant.

Cecil A. Partee, Cook County State's Atty., Thomas J. Torcasso, Asst. State's Atty. (Inge Fryklund, Jerry D. Bischoff, Mari R. Hatzenbuehler, of counsel), Chicago, for plaintiff-appellee.

Presiding Justice MURRAY delivered the opinion of the court.

Defendant, Bruce Jones, was charged by information with possession of a controlled substance (more than 15 grams of a substance containing cocaine) with intent to deliver in violation of section 401(b)(2) of the Controlled Substances Act. (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1401(b)(2).) He filed a motion to suppress evidence. Following a hearing, the motion was denied, and defendant was found guilty after a stipulated bench trial in the circuit court of Cook County. He was sentenced to serve a prison term of six years.

On appeal, he contends that the trial court erred in denying the suppression of evidence. The issues on appeal are: (1) whether the initial encounter between defendant and the law officers was consensual or a Terry-type detention; (2) if the encounter was a Terry-type detention, whether sufficient facts justified the detention; and (3) whether the subsequent search of defendant's shoulder bag violated his fourth amendment rights.

On March 26, 1987, defendant took a one-way flight from Midway Airport in Chicago to Fort Lauderdale, Florida. On March 29, 1987, he purchased a one-way Amtrak train ticket from Fort Lauderdale to Chicago via Washington, D.C. On March 30, 1987, Officer Christine Kolman, a 13-year veteran of the Chicago police department, learned from the Amtrak police that defendant would arrive in Chicago on Amtrak train No. 29. She also learned that day or the following day that defendant was traveling from Fort Lauderdale, Florida, via Washington, D.C., and that he had made several similar trips in the past.

About 9:10 a.m. on March 31, 1987, defendant and a companion, Edward Borner, arrived at Union Station, 210 South Canal Street in Chicago, on Amtrak train No. 29. At that time, Kolman and other plainclothes narcotics agents were conducting a surveillance narcotic investigation. During the course of her surveillance, Kolman observed defendant and Borner exit the train. Defendant walked without hesitation through the waiting area and the rest of the train station, but he repeatedly turned around, looked behind him, and made eye contact several times with Kolman and one of the other officers. Defendant again made eye contact with Kolman once or twice as he rode up the escalator to the mezzanine level. Defendant stepped off the escalator on the mezzanine level and had walked about 5 to 10 feet away from the escalator when an Amtrak police officer approached him. This was a well-illuminated, crowded public area near the exit doors. Kolman approached defendant, identified herself as a Chicago police officer, and displayed her identification badge. The Amtrak police officer and a special narcotics agent were with Kolman and defendant, but the Amtrak police officer walked away when Kolman and the agent identified themselves. Kolman stood alongside defendant. Neither she nor the other officers touched or grabbed him, nor did they display their weapons. No one was standing in front of defendant; rather, the exit doors were in front of defendant. Defendant was not pinned against any wall or counter.

After Kolman identified herself, she asked defendant and Borner whether they would agree to speak to the officers. When they stated that they would, Kolman asked them to produce their train tickets and driver's licenses or other identification. They then produced their driver's licenses and travel itineraries. Defendant's travel itinerary reflected that he flew to Fort Lauderdale from Midway Airport in Chicago on March 26, and that he left Fort Lauderdale on March 29, on a train to Chicago via Washington, D.C. After Kolman read the documents, she returned them to defendant and Borner. She then explained that the officers were conducting a narcotics investigation, and she asked them how long they had been in Florida and whether the trip was for business or pleasure. Defendant stated that he had been on vacation in Florida since the previous Thursday and he asked Kolman what this was all about. Kolman again explained that the officers were conducting a narcotics investigation and she asked defendant and Borner whether they had illegal narcotics in their possession. Both defendant and Borner answered in the negative. Kolman then told them in a conversational tone that they were not under arrest and that they were free to leave at any time. She asked them whether they would consent to a search of their bags and she told them that they had a right to refuse. Borner stated, "Yes, go ahead," but defendant did not answer and began to tremble. Kolman noticed that defendant was trembling and that he was very nervous and asked again whether he would consent to a search of his bags.

At this point, defendant declined to consent to a search. Kolman stated again that they were free to leave and that they were not under arrest. She explained further that she was going to detain defendant's bag temporarily in order to subject it to a canine sniff test. Defendant then stated, "You can search my bag, I've got narcotics in it but I'm carrying it for somebody else." The officers were neither touching, grabbing, threatening nor blocking defendant, nor had they drawn their weapons. Defendant did not express any desire to terminate the conversation or to leave the area. Kolman proceeded to search defendant's bag, found the contraband inside, and placed defendant under arrest. She did not arrest Borner because no contraband was found in his bags. It is undisputed that the officers had no warrant for the search or the arrest.

In denying defendant's motion to suppress, the trial court noted that the initial encounter was consensual, that the officers had a right to detain defendant's bag, and that the officers had probable cause for the search and the arrest following defendant's statement that there were narcotics in the bag.

A trial court's finding on a motion to suppress evidence will not be disturbed unless it is manifestly erroneous. (People v. Long (1983), 99 Ill.2d 219, 75 Ill.Dec. 693, 457 N.E.2d 1252; People v. Reynolds (1983), 94 Ill.2d 160, 68 Ill.Dec. 122, 445 N.E.2d 766.) However, under the statute, the burden is upon defendant to prove his allegations at a suppression hearing:

"The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant." (Ill.Rev.Stat.1987, ch. 38, par. 114-12(b).)

In our view, defendant failed to meet his statutory burden of proof.

The fourth amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (U.S. Const., amend. IV.) In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court authorized a limited, investigative detention short of a full arrest and short of probable cause. However, not all encounters between citizens and law enforcement officers implicate the fourth amendment. (Florida v. Royer (1983), 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229; People v. Long, 99 Ill.2d at 229, 75 Ill.Dec. 693, 457 N.E.2d 1252.) A seizure occurs only when a law officer restrains a citizen's liberty by physical force or show of authority. (People v. Long, 99 Ill.2d at 229, 75 Ill.Dec. 693, 457 N.E.2d 1252.) Consensual questioning does not implicate the fourth amendment. (See Royer, 460 U.S. at 497-98, 103 S.Ct. 1324, 75 L.Ed.2d at 236; Florida v. Rodriguez (1984), 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165.) According to four members of the United States Supreme Court, the fourth amendment is not violated when a law officer merely approaches a person in a public place, asks him whether he is willing to answer some questions, asks him questions if the person is willing to listen, or offers in evidence the voluntary answers to the questions. (Royer, 460 U.S. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at 236 (opinion of White, J., joined by Marshall, Powell and Stevens, J.J.); also see People v. Long, 99 Ill.2d 219, 75 Ill.Dec. 693, 457 N.E.2d 1252; People v. Alcantara (1987), 179 Ill.App.3d 105, 128 Ill.Dec. 223, 534 N.E.2d 405.) The mere fact that the officer identifies himself as an officer without more, does not convert the encounter into a seizure requiring some level of objective justification. (United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497.) Therefore, the threshold question in a case of this type, is whether a seizure has occurred.

In Illinois, the test for determining whether a seizure has occurred is an objective one; namely, whether a reasonable person would have believed that he was free to leave under the circumstances. (See People v. Miller (1984), 124 Ill.App.3d 620, 80 Ill.Dec. 214, 464 N.E.2d 1197; People v. Brett (1984), 122 Ill.App.3d 191, 77 Ill.Dec. 572, 460 N.E.2d 876.) This comports with the test set forth in United States v. Mendenhall (1980), 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497. There, Justice Stewart, in a portion of the opinion joined by Justice Rehnquist, stated that a seizure has occurred implicating the fourth amendment when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not...