People v. Love

• Decision Date: 18 April 2002
• Docket Number: No. 90806.,90806.
• Citation: 199 Ill.2d 269,263 Ill.Dec. 808,769 N.E.2d 10
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Marilyn LOVE, Appellee.
• Court: Illinois Supreme Court

769 N.E.2d 10

199 Ill.2d 269

263 Ill.Dec. 808

The PEOPLE of the State of Illinois, Appellant, v. Marilyn LOVE, Appellee.

No. 90806.

Supreme Court of Illinois.

April 18, 2002.

James E. Ryan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, Renee G. Goldfarb, Mary L. Boland, Walter T. Keane, Theodore Fotios Burtzos, Assistant State's Attorneys, of counsel), for the People.

Rita A. Fry, Public Defender, Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellee.

Justice FITZGERALD delivered the opinion of the court:

The defendant, Marilyn Love, was charged with possession of a controlled substance with intent to deliver after two Chicago police officers found 16 small plastic bags of rock cocaine in her mouth. During a bench trial in the Cook County circuit court, the defendant made an oral motion to suppress the cocaine. The trial court denied the defendant's motion and ultimately convicted the defendant. The appellate court reversed the trial court's ruling on the defendant's suppression motion and reversed her conviction. 318 Ill. App.3d 534, 252 Ill.Dec. 585, 743 N.E.2d 159.

The issue before us is whether the police officers had probable cause to arrest and search the defendant. We reverse the appellate court and reinstate the defendant's conviction.

BACKGROUND

At trial, Chicago police officer Olson was the State's only witness. On direct examination, Officer Olson testified that on January 29, 1999, he and his partner, Officer Retner, were conducting narcotics surveillance in a residential area on Chicago's west side. Around 1:50 a.m., Officer Olson, looking through binoculars, saw the defendant in front of an apartment building. Nearby, he saw a man approach a person on a bicycle and give that person some currency. The person on the bicycle then directed the man toward the defendant. According to Officer Olson, the defendant then "removed an item from her mouth and handed it to that individual." Officer Olson and his partner "approached and detained" the defendant and "asked her to spit out some objects in her mouth." The defendant complied, and Officer Retner recovered from the ground an object which looked like a roll of clear tape with 16 small plastic bags stuck to it. The officers believed the bags contained crack cocaine.

On cross-examination, Officer Olson testified that, during his 10 minute surveillance, the person on the bicycle circled between 25 feet and 300 feet from the defendant. Officer Olson stated that he saw the man hand money to the person on the bicycle, but he did not see what the defendant handed to the man. Officer Olson did not stop the person on the bicycle or the man. As he approached the defendant, Officer Olson could not see what she had in her mouth. According to Officer Olson, "We asked her, I believe it was her name, and she had difficulty answering it. At that time I told her to spit out what she had in her mouth, and she did." Officer Olson did not know the defendant had drugs in her mouth until she spit them out.

The defendant's attorney then made an oral motion to suppress, asserting that the information in "the transcript" somehow conflicted with Officer Olson's testimony. In response, the State summarized the police officers' observations. The officers saw the man give currency to the person on the bicycle; they saw the person on the bicycle point the man toward the defendant; and they saw the defendant give the man an object out of her mouth: "Upon that they approach. Upon that they had probable cause to approach." The trial court asked the defendant's attorney if he wanted to present additional evidence in support of this motion; the defendant's attorney answered no. The court ruled:

"At some point [Officer Olson] approached the defendant * * * and that while conducting in essence at that point an initial Terry stop or field interview or questioning, which is allowed and codified under the Illinois Criminal Code, * * * noticed she had some difficulties answering it because something was in her mouth and asked her to spit the items out. I suppose arguably so he can continue on with the questioning from the temporary detention.

At that time he observed what he believed to be contraband which was recovered. The court does not believe there's any 4th Amendment violation. So the motion to suppress evidence based upon that lack of probable cause will respectfully be denied."

The parties stipulated that the plastic bags contained cocaine. The defendant then testified in her own defense. Her version of the events which led to her arrest differed wildly from Officer Olson's version. The defendant stated that a police officer grabbed her from behind and asked her some questions. According to the defendant, another officer hit her in the face and told her to open her mouth. The officer never asked her spit out what was in her mouth; "he just told me to talk." The defendant never saw the police officers recover anything from the ground. She asserted that she did not possess or sell drugs on January 29, 1999. In rebuttal, the State offered evidence of the defendant's 1997 conviction for delivery of a controlled substance.

The court accepted Officer Olson's testimony, rejected that of the defendant, and found her guilty. The defendant then filed a motion for a new trial, in which she reargued her motion to suppress. The trial court denied this motion, stating:

"This was not a situation where the officers approached and arbitrarily searched the defendant recovering contraband. Which might cause some concern with regard to [the] search issue. But the officers observed what they believed to be criminal activity afoot. That being the narcotics transactions and approached to do basically a Terry stop or field investigation.

And when they attempted to speak to this defendant, they were unable to because she had something in her mouth. They did not indicate that they let—that that substance was a controlled substance and ordering to be produced, even though that might have been reasonable based on the observations.

As far as the testimony goes, it could have been chewing gum or some other foreign substance or food or some other item in her mouth. So that for the officers to effectively carry on the field interview, in accordance with statute, case law, it was necessary that she remove what was in her mouth. It was causing her difficulty in answering the questions that were being put to her."

The defendant appealed. The appellate court reversed the trial court's ruling on the defendant's motion to suppress and reversed her conviction. 318 Ill.App.3d at 538, 252 Ill.Dec. 585, 743 N.E.2d 159. The appellate court held that Officer Olson's detention of the defendant was constitutional under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but that his search of the defendant was not: "Officer Olson effectually intruded upon defendant's body by ordering her to spit out what was in her mouth. The officer's actions constituted a sufficient intrusion upon defendant's privacy interest to qualify as a search under the fourth amendment." 318 Ill.App.3d at 538, 252 Ill.Dec. 585, 743 N.E.2d 159. According to the appellate court, the defendant did not voluntarily comply with Officer Olson's order; rather, she submitted to his authority. 318 Ill.App.3d at 538, 252 Ill.Dec. 585, 743 N.E.2d 159. Although Officer Olson could demand the defendant's name, he could not compel a response. 318 Ill.App.3d at 538. 252 Ill.Dec. 585, 743 N.E.2d 159.

We granted the State's petition for leave to appeal. See 177 Ill.2d R. 315(a).

ANALYSIS

Initially, we note that the defendant has filed a motion to strike portions of the State's opening brief. The defendant charges that the State raises issues before this court regarding probable cause which it never pursued below or in its petition for leave to appeal. This motion was taken with the case.

Contrary to the defendant's assertion, the State did discuss the issue of probable cause in its petition for leave to appeal, where it argued: "police could have arrested defendant, without defendant's compliance to `spit it out,' where the police arguably developed probable cause during the Terry stop * * *." Further, as we held in People v. Schott, 145 Ill.2d 188, 201, 164 Ill.Dec. 127, 582 N.E.2d 690 (1991), the State may raise an issue before this court as an appellant which it did not raise before the appellate court as an appellee. Accord Mueller v. Elm Park Hotel Co., 391 Ill. 391, 398-99, 63 N.E.2d 365 (1945). We deny the defendant's motion to strike, and turn to the merits of this appeal.

When a motion to suppress evidence involves factual determinations or credibility assessments, we will reverse the trial court's ruling only if it is manifestly erroneous. People v. Buss, 187 Ill.2d 144, 204, 240 Ill.Dec. 520, 718 N.E.2d 1 (1999). De novo review of the trial court's ruling is appropriate when the parties do not dispute the facts or the credibility of witnesses. People v. Sims, 192 Ill.2d 592, 615, 249 Ill.Dec. 610, 736 N.E.2d 1048 (2000); see In re G.O., 191 Ill.2d 37, 49-50, 245 Ill.Dec. 269, 727 N.E.2d 1003 (2000) (following Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996)). Here, Officer Olson was the only witness to testify for the State at trial; the defendant's oral motion to suppress was made immediately after his testimony. The trial court found that Officer Olson's testimony was more credible than that of the defendant. This determination was not manifestly erroneous. Accordingly, we will review de novo the legal issues presented in this appeal under Officer Olson's version of events. People v. Gonzalez, 184 Ill.2d 402, 412, 235 Ill.Dec. 26, 704 N.E.2d 375 (1998).

The fourth amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and...