People v. Stoddard

• Decision Date: 05 November 1993
• Docket Number: No. 1-91-0622,1-91-0622
• Citation: 194 Ill.Dec. 737,256 Ill.App.3d 989,628 N.E.2d 234
• Parties: , 194 Ill.Dec. 737 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry STODDARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 234

628 N.E.2d 234

256 Ill.App.3d 989, 194 Ill.Dec. 737

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Jerry STODDARD, Defendant-Appellant.

No. 1-91-0622.

Appellate Court of Illinois First District, Sixth Division.

Nov. 5, 1993.

Michael J. Pelletier, Office of the State Appellate Defender, and M. Jacqueline Walther of Kielian and Walther, Chicago, for defendant-appellant.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, Theodore F. Burtzos and Susan R. Schierl, of counsel), for plaintiff-appellee.

Justice EGANdelivered the opinion of the court:

This is a "drug courier profile" search and seizure case.The defendant was arrested on October 25, 1989, at Union Station in Chicago by police officers assigned to drug enforcement.A search of his luggage disclosed cocaine.He was charged with possession of a controlled substance with intent to deliver and trafficking in a controlled substance.His motion to quash arrest and suppress evidence was denied.After a bench trial, he was found not guilty of trafficking and guilty of possession with intent to deliver and sentenced to 15 years' imprisonment.He contends that the trial judge erred in denying his motion to suppress.

On October 25, 1989, Officers Thomas Martin and Thomas Kinsella were detailed to the Drug Enforcement Task Force of the Chicago Police Department.Both were in civilian clothes and not visibly armed.Martin monitored passengers from certain inbound trains, looking for couriers of controlled substances.Martin, Kinsella and Amtrak Agent Fedorcak first saw the defendant as he disembarked from a train from Los Angeles, a "source" city for narcotics distribution.This train had made 30 stops en route to Chicago.Some of the stops, but not all, were made in source cities.

Martin saw that the defendant was the last passenger to exit from the sleeper car.The defendant was dressed in a jacket, shirt and regular slacks and carried a small black suitcase and a black leather handbag.The defendant looked around as though he was "looking for somebody."

The defendant approached a porter and placed his bags on the top shelf of the porter's cart.As the defendant walked to the main part of the station, Martin continued to observe him.The defendant walked immediately alongside his luggage.Kinsella thought it unusual that the defendant walked alongside his luggage and did not let it out of his sight.The defendant also looked over his shoulder.

After passing through glass doors, the defendant took his luggage from the cart and began to exit.Martin and Fedorcak approached the defendant.Martin identified himself as a Chicago police officer and showed him identification.Martin asked the defendant if he would mind speaking with him.The defendant replied that "there was no problem" and that he would speak with Martin.Martin told him in a conversational tone that he was "free to leave, that he was not under arrest, that this was just a conversation of an investigative nature."The entire questioning occurred in a public place with approximately 100 to 200 people in the vicinity.At no time did any officer block the defendant's path, and no more than two officers spoke with the defendant at one time.

Martin learned that the defendant boarded the train in Flagstaff, Arizona, another "source" city, and had been on the train two days.Martin asked the defendant for identification.The defendant produced his birth certificate and his train ticket.The ticket was purchased with cash in the amount of $260.When Martin asked why he was travelling, the defendant responded that he was "conducting business and vacation combined,"he was involved in pinball franchising.Martin also learned that the defendant had upgraded his ticket to a sleeper car for $116; he again paid cash.Martin testified to the significance "in drug surveillance" of paying with cash and upgrading to a sleeper car.Cash payment is preferred because it leaves no record that the individual has travelled or left town.Upgrading to a sleeper gives the traveller more control over his luggage.Martin acknowledged that it is common for many people to pay cash for their tickets.Martin did not explain the significance of "upgrading," that is, he did not explain what difference there would be if the defendant had originally paid for a sleeper.According to Martin, when the defendant produced his birth certificate, he was "physically trembling, his hands were shaking.He was physically very nervous."Kinsella then approached and Agent Fedorcak withdrew from the conversation.Later, Officer Crowley joined them.The birth certificate that the defendant produced bore his own name.When Kinsella asked for further identification, the defendant stated that he had lost his wallet at the Los Angeles airport and that his California driver's license and identification were in the wallet.The defendant had previously said that he resided in Phoenix, Arizona.Kinsella also asked him if he reported the loss of his wallet to the police.The defendant first said he had not and then said that he told the policeman on duty there, but that he did not know if the policeman made a report on it.In response to further questions by Kinsella, the defendant said that he packed his own bags and that no one had given him any other packages.At this time, the defendant was "shaking" and "physically trembling."

At about 5:00 p.m., Officer Kinsella told the defendant that his bags "would be detained and that a narcotic detective dog would * * * sniff the bags for any indication of a controlled substance.* * * [I]f the dog didn't make a positive alert,"the defendant would be given his bags back.Kinsella told the defendant that the dog sniff would not take more than ten minutes.The officers learned that the defendant was catching a connecting train to Detroit at 5:50 p.m.Both officers told the defendant that he was not under arrest and he was free to leave at this time.The defendant stated that he would wait in the train station for his connecting train.The dog sniff took 10 minutes, and the dog reacted positively.

Officer Kinsella testified that the defendant looked around the entire area as he stepped off the train.He was walking in the direction of the glass doors leading to the main terminal building from the platform and looked back over his shoulder a couple of times as he was walking.Kinsella summarized what he thought appeared unusual about the defendant to warrant questioning him:

"The fact that he put the bags on top of the baggage cart and walked right alongside of them, that he did not leave them alone or let them out of his sight at all.The manner in which he was dressed was not indicative of a business person making a business trip.He wasn't dressed in a three-piece suit, he was dressed in casual clothing."

Kinsella admitted that he did not know whether the defendant was a businessman until after he questioned him.

After arguments, the judge denied the motion to quash arrest and to suppress.The defendant waived his right to a jury trial.Officer Martin's testimony at trial was substantially the same as his testimony at the motion to suppress evidence.In addition, Martin testified that he took the defendant's three pieces of luggage to a conference room at the Amtrak offices for the dog "sniff."Martin put the luggage in three different spots in the room.Kinsella told the certified narcotics dog, Rex, to "fetch dope," and the dog scratched and bit all three bags.At 9 p.m., Martin executed a search warrant and found 6 kilograms of cocaine in the hard-sided case.According to Martin, the street value of the 96% pure cocaine was $1.6 million.

The defense introduced no evidence.The judge then found the defendant guilty of possession with intent to deliver and not guilty of trafficking.

As a threshold matter, it is appropriate that we address the defendant's argument that this intermediate court should reject the "Lockstep Doctrine" in search and seizure cases and hold that we are not bound to follow United States Supreme Court precedent in determining whether section 6 of the Illinois Constitution has been violated.In support of that argument the defendant has cited People v. DiGuida(1992), 152 Ill.2d 104, 178 Ill.Dec. 80, 604 N.E.2d 336.In DiGuida the Illinois Supreme Court concluded that the free speech protection of the Illinois Constitution was broader than the free speech protection of the Federal Constitution.In making that holding, however, the DiGuida court distinguished the free speech provisions of the Federal Constitutionandsection 6 of the Illinois Bill of Rights (Ill. Const. 1990 art. I, § 6), which proscribes illegal searches and seizures.The court cited with approval People v. Hoskins(1984), 101 Ill.2d 209, 78 Ill.Dec. 107, 461 N.E.2d 941, in which the supreme court had previously held that it would interpret Section 6 of the Illinois Bill of Rights in the same way that the United States Supreme Court had interpreted the Fourth Amendment.Consequently, we must reject the defendant's argument.

The next step in our analysis requires that we determine the proper standard on review.The defendant argues in his reply brief that we must consider the issues de novo and cites People v. Foskey(1990), 136 Ill.2d 66, 143 Ill.Dec. 257, 554 N.E.2d 192.We have recently addressed the same question in People v. Hendrix(1st Dist., July 16, 1993, No. 1-90-3051), 250 Ill.2d 88, 189 Ill.Dec. 859, 620 N.E.2d 1176 but in the context of probable cause to arrest.We discussed Foskey and In re D.G.(1991), 144 Ill.2d 404, 163 Ill.Dec. 494, 581 N.E.2d 648, which cited Foskey and which held that where neither the facts nor credibility of the witnesses are contested, the issue of whether probable cause exists is a legal question which a reviewing court may consider de novo.We referred to several previous supreme court opinions which held that...