People v. Kolichman

• Decision Date: 30 July 1991
• Docket Number: No. 1-88-1227,1-88-1227
• Citation: 578 N.E.2d 569,218 Ill.App.3d 132
• Parties: , 161 Ill.Dec. 211 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Irving KOLICHMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 569

578 N.E.2d 569

218 Ill.App.3d 132, 161 Ill.Dec. 211

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Irving KOLICHMAN, Defendant-Appellant.

No. 1-88-1227.

Appellate Court of Illinois First District, Second Division.

July 30, 1991.

Rehearing Denied Oct. 3, 1991.

Randolph N. Stone, Public Defender of Cook County (Stephen L. Richards, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County (Renee Goldfarb, Joseph Brent, Robert F. Heilingoetter, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice COCCIA delivered the opinion of the court:

A jury convicted defendant, Irving Kolichman, of illegally possessing 18 tablets of diazepam (valium) and 38 capsules of secobarbital (seconal). (Ill.Rev.Stat.1989, ch. 56 1/2, pars. 1206(e)(2), 1210(c)(8), 1402(b).) The jury acquitted defendant of the original, higher, charge of possession with intent to deliver. (Ill.Rev.Stat.1989, ch. 56 1/2, pars. 1401(d), 1401(f).) The court sentenced defendant to two years in the Illinois Department of Corrections. On appeal, defendant challenges the trial court's denial of his motion to suppress evidence, claiming the search and seizure were illegal.

On December 4, 1986, Chicago Police Officer Philip Nelson and his partner were on patrol plainclothed and in an unmarked car. The two officers were assigned to the "Tactical Unit" and their duties included "drug investigations, follow-up investigations on drugs." At 12:40 p.m. Officer Nelson received a radio call concerning an alleged robbery in progress at a 7-Eleven Store located in Chicago.

When Nelson and his partner, Whiteman, arrived at the 7-Eleven Store a uniformed officer, Richard Holmes, was already present in the store. Three men, including defendant, stood in the back of the store. The store manager reported that no robbery had occurred but he "thought they were going to rob him." At the hearing, when asked if defendant and his two companions had committed any crime at that point, Officer Nelson testified, "They were standing in the store incoherent, unsure of their actions, staggering around * * *, [b]ringing suspicion upon them." They were "acting in a suspicious manner." When asked what crime he observed, Nelson replied: "Other than the fact that their actions, and manners, and they were carrying on, none."

Officer Nelson described defendant as "standing with the help of leaning on the counter that was nearby;" his face was "very flush"; "he had drool coming from his mouth;" he responded to Nelson's questions but he was incoherent--Nelson could not understand what defendant was saying. The other two men, Hiller and Blomgren, were acting similarly. (Charges against Hiller and Blomgren were later nolle prossed.)

The three officers simultaneously patted down the three men. Officer Nelson's search of defendant produced the 56 pills which are the subject of this appeal. Officer Nelson testified, without elaboration, that he had encountered defendant on two or three prior occasions in his capacity as a Chicago police officer.

One of the other officers found a full pad of blank prescriptions in Hiller's pocket. Also found on Hiller were two prescription vials, labeled for a "Steve Kaplan," of diazepam and secobarbital. (This testimony was excluded from the suppression hearing on defendant's objection; however, it was admitted into evidence at trial.)

Nelson testified regarding the purpose of the search:

"Q. Officer, what was the purpose of the pat down search you made of [defendant]?

A. Protective, custody. We were within his reach, and for our own protection.

Q. You were looking for a weapon?

A. No.

Q. You found a weapon?

A. No.

Q. And you continued to search?

A. After we found the prescription pads, yes.

Q. But that couldn't have been a weapon, could it?

A. Not until we pulled it out and found out what it was.

Q. You didn't arrest [defendant] for disorderly conduct, did you?

A. No, we did not."

Defense counsel argued that the officer had the right to make a pat down protective search but: "Once he does not feel a weapon, he has no right to go any further. That is the whole point. The fact that this officer knew [defendant] professionally in the past is meaningless." The court disagreed:

"THE COURT: Counsel, I think you are writing some new law that I have not heard of. We have a situation where a defendant is in a place drooling, incoherent, leaning on a wall, and you feel that all the officer can do at that point is ask him to leave. He has violated the law then and there. He is either drunk or incoherent.

DEFENSE COUNSEL: He could be ill.

THE COURT: At that point, we are talking about probable cause.

DEFENSE COUNSEL: If the officer said to him leave, and he didn't--

THE COURT: The officer is not required to say leave. He is in that condition. The officer has reason at that point to investigate further. He begins a search, whether it be for a weapon or whatever. He finds--inadvertently finds the drug. Now, you are saying no, that is improper. I don't agree with you, counsel."

The court denied the motion to suppress.

At trial, the owner of the 7-Eleven Store, Peter Haleas, testified that he and his wife were alone in the store when three men staggered in. He testified that he did not call the police and did not know who did. The officers who testified at the suppression hearing testified similarly at trial.

The officers testified to finding blue colored tablets and reddish-orange colored capsules loose in Blomgren's pockets, and in two prescription-labeled vials in Hiller's pockets, along with the blank prescription pad. These items were introduced into evidence over defendant's relevancy objection.

A police chemist identified the 56 tablets and capsules possessed by defendant as diazepam (valium) and secobarbital (seconal). The parties stipulated that a police chemist would testify that the tablets and capsules found on Hiller and Blomgren were identical in shape, size, color and markings to those found on defendant. Also, an officer testified that the prescription vials found on Hiller were for 90 diazepam and 90 secobarbital. Both vials were labeled from Field and Professional Pharmacy, Inc., with the name "G. Urban" as the pharmacist, the name "Steve Kaplan" as the patient, and a "Dr. Ragab" as the doctor. The date on the vials was December 4, 1986.

George Urban, a pharmacist at Field Pharmacy, testified that on December 2, 1986, he received a telephone order from someone identifying himself as Dr. Ragab, who asked him to fill a prescription for 90 valium for a Steve Kaplan. On December 4, 1986, a person identifying himself as Steve Kaplan came to the pharmacy in the late morning and gave Urban an additional prescription for 90 secobarbital on a prescription blank from a Dr. Elizabeth Sosinski but signed by Dr. Ragab. Urban attempted to verify the second prescription by telephoning Dr. Ragab using the phone number on the prescription; a female voice told him Ragab was unavailable. Urban verified Ragab's DEA drug dispensing number with the woman and was also told that Dr. Sosinski and Dr. Ragab were colleagues sharing the same office. Urban filled the two prescriptions. Urban testified that the person claiming to be Steve Kaplan was not defendant.

Dr. Ragab testified that he had never had a patient named Steve Kaplan, and had never prescribed diazepam or secobarbital for such a patient. He had treated Gary Hiller in October 1985, over a year before by removing stitches from Hiller's head, but he did not give Hiller diazepam or secobarbital or any other medication. Dr. Ragab testified that the signature at the bottom of the prescription for Steve Kaplan presented to the Field Pharmacy was not his. Dr. Ragab had never heard of Dr. Sosinski and never shared an office with her.

Defendant testified that his father died in August 1985, and that he had received a prescription prior to that from a Dr. Auerbach for diazepam and secobarbital, which he refilled in October and again in December of 1985. Duplicate pharmacy receipts were introduced into evidence from Walgreen's pharmacy as defendant's Exhibits Nos. 1, 2, and 10. Defendant testified that the tablets and capsules taken from him at his arrest came from the unused portion of the lawful prescriptions from Dr. Auerbach.

On rebuttal, the State called Darryl Natarus, a Walgreen's pharmacist, who testified that he had filled a prescription in December 1985, consistent with the duplicate receipt in defendant's exhibit one. Natarus testified that the prescription was for diazepam, manufactured by Mylan Co. Natarus described Mylan diazepam as light green in color, with the word Mylan marked on the tablet as well as the number 477. Natarus described the diazepam in People's Exhibit No. 1F, which were light blue and marked z 3927, as a Zenith brand diazepam, not Mylan.

Natarus also examined People's Exhibit No. 11 and identified it as defendant's prescription for seconal capsules filled in June 1985. Natarus testified that Walgreen's fills seconal (secobarbital) prescriptions with Lilly brand drugs, which have the word "Lilly" on the capsule with a three digit code number. After examining the seconal capsules found on defendant and contained in People's Exhibit No. 11, Natarus testified that they were not Lilly brand seconal and did not come from Walgreen's pharmacy.

On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search and seizure were unreasonable. Once the defendant makes a prima facie showing that the search is unlawful, the burden shifts to the State to plead and prove a justification for the search. (People v. Clark (1977), 55 Ill.App.3d 379, 13 Ill.Dec. 84, 370 N.E.2d 1111.) A reviewing court will not reverse the trial court's finding on a motion to suppress evidence unless the finding is manifestly erroneous. People v. Neal (1985), 109 Ill.2d 216,...