People v. Yarber

• Decision Date: 16 April 1996
• Docket Number: No. 5-95-0143,5-95-0143
• Citation: 663 N.E.2d 1131,279 Ill.App.3d 519
• Parties: , 215 Ill.Dec. 617 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Samuel YARBER, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1131

663 N.E.2d 1131

279 Ill.App.3d 519, 215 Ill.Dec. 617

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Samuel YARBER, Defendant-Appellee.

No. 5-95-0143.

Appellate Court of Illinois Fifth District.

April 16, 1996.

Appeal from the Circuit Court of Jackson County. No. 94-CF-542; Honorable David W. Watt, Judge, presiding.

Michael Wepsiec, State's Attorney, Murphysboro; Norbert J. Goetten, Director; Robert J. Biderman, Deputy Director; Charles F. Mansfield, Staff Attorney; State's Attorneys Appellate Prosecutor, Springfield, for Appellant.

Daniel M. Kirwan, Deputy Defender; Rita K. Peterson, Assistant Defender; Office of the State Appellate Defender, Mount Vernon, for Appellee.

Justice KUEHN delivered the opinion of the court:

On Wednesday, November 9, 1994, at approximately 9:15 p.m., defendant Samuel Yarber (Yarber) arrived in Carbondale, Illinois, on an Amtrak train. He exited the train and began walking towards the station parking lot. As he was walking, he was approached by Carbondale police officer Dee Cross, who called Yarber by name. Officer Cross asked Yarber for identification. Yarber produced his driver's license and Southern Illinois University identification card. Officer Cross informed Yarber that she had reason to suspect that he possessed drugs. She asked Yarber if he had drugs. Yarber responded negatively. Officer Cross then requested consent to search Yarber's two bags and his person. Whether or not Yarber consented to a search of his person is disputed. Officer Cross conducted a limited search of Yarber's person, which yielded nothing. Yarber denied consent to search his two bags.

Officer Cross consulted with the four other officers in attendance regarding what to do in light of Yarber's refusal to consent. The police officers decided to have a dog trained in narcotics detection brought to the Amtrak station to sniff Yarber's bags. Prior to their arrival at the station, the officers were aware that the Carbondale police department narcotics dog, Jasper, could not be brought to the station because he lacked liability insurance for work in public places. The police officers contacted the Illinois State Police to determine if its dog was available. The Illinois State Police narcotics dog was unavailable. A call to Williamson County to check on the availability of its dog was similarly unsuccessful.

While the police officers made these calls, Yarber stood next to his luggage. The police officers claimed that they advised Yarber he was free to leave and that he chose to remain with the officers. Yarber claims that he was never so advised.

Finally, the police officers decided to seize Yarber's two bags and transport them to the Carbondale police department headquarters, where Jasper could conduct his sniff test. Yarber was advised that if he accompanied the officers to police headquarters, a receipt for his bags would be provided.

The length of detention from police contact as Yarber exited the train until the bags were seized was also in dispute. The parties agree that the detention lasted longer than 15 minutes. While Yarber was free to leave, he was not allowed to take his bags and was advised that if he attempted to do so, he would be arrested.

Later that evening at the Carbondale police department headquarters, Jasper sniffed and alerted on both of Yarber's bags. On the basis of an anonymous tip and the alert, a search warrant was obtained for both bags. A search of the bags revealed that one contained approximately two pounds of cannabis. The other bag did not contain cannabis. ¹

Yarber was charged with unlawful possession of more than 500 grams of cannabis with intent to deliver, a Class 2 felony. 720 ILCS 550/5(e) (West 1992). Yarber filed a motion to suppress the cannabis and all testimony regarding the cannabis, claiming that the stop, detention, and seizure were illegal.

At the hearing, testimony focused upon information provided by the anonymous informant. On November 8, 1994, at approximately noon, an anonymous informant telephoned the Crimestoppers line, staffed by the Carbondale police department. The informant claimed that her best friends purchased cannabis on a regular basis from a man by the name of Samuel Yarber and that he sold cannabis at parties. The informant provided Yarber's general physical description (race, height, and weight), provided his dormitory address at Southern Illinois University, and indicated that he lived alone at that address and that he worked at the Lentz Hall cafeteria. Four hours later, the anonymous informant called back and indicated that Yarber would leave that date by Amtrak train bound for Chicago, Illinois, returning by Amtrak train to Carbondale on November 9, 1994. The purpose of this trip to Chicago was to purchase cannabis.

In an effort to confirm the details of the anonymous tips, the Carbondale police department contacted university law enforcement officials, who confirmed that Yarber was a Southern Illinois University student and resided alone at the address provided by the informant. A check with Yarber's employer revealed that he had not worked in the cafeteria for several days. A criminal background check was helpful in confirming Yarber's race, height, and weight.

University officials proceeded to the Amtrak station on November 8, 1994. The train bound for Chicago had already departed. Amtrak maintained no list of passengers, and so there was no way to confirm that Yarber was on board that train. An Amtrak employee, Nelson Miesner, when shown a Polaroid photograph of Yarber's college identification card photograph, indicated that he was "almost positive" that Yarber had been in the train station earlier that date, requesting change. University officials also checked the Amtrak reserved list for the November 9, 1994, train originating in Chicago, but Yarber was not on the list. Repeated telephone calls to a telephone number listed for Yarber went unanswered. An answering machine picked up on each occasion, identifying the absent occupant as "Frostbite."

Following a hearing, the trial court granted Yarber's motion to suppress. The State appeals. The State claims that the trial court erred in suppressing the evidence. We disagree and affirm the trial court.

The trial court found that the Carbondale police officers had a reasonable basis to stop Yarber, but that the officers inappropriately seized his bags. We agree with the trial court's order of suppression, but we do so for a different reason. On appeal, a reviewing court can sustain a decision of the trial court for any appropriate reason, regardless of whether the trial court relied on those grounds, and regardless of whether the trial court's reasoning was correct. People v. Novak, 163 Ill.2d 93, 101, 205 Ill.Dec. 471, 476, 643 N.E.2d 762, 767 (1994).

With a motion to suppress evidence, the defendant bears the burden of proof to establish that the search and seizure were unreasonable. People v. Neal, 109 Ill.2d 216, 218, 93 Ill.Dec. 365, 366, 486 N.E.2d 898, 899 (1985). A reviewing court will not reverse the trial court, unless the order of suppression is manifestly erroneous. Neal, 109 Ill.2d at 218, 93 Ill.Dec. at 366, 486 N.E.2d at 899.

The warrant clause of the fourth amendment provides that "no Warrants shall issue, but upon probable cause * * *." U.S. Const., amend. IV. Accordingly, valid search warrants and arrest warrants may only issue upon a showing of probable cause. United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734 (1971) (search warrant); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 138-39 (1959) (arrest warrant).

The United States Supreme Court created a limited exception to the fourth amendment probable cause requirement for seizures, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906-07. Terry permitted a brief stop of a suspicious individual in order to ascertain his identity or to maintain the status quo while obtaining additional information. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906-07. The stop's purpose was to investigate the articulable suspicions of the officer that the person stopped had committed or was about to commit a crime. Terry, 392 U.S. at 21, 30, 88 S.Ct. at 1880, 1884, 20 L.Ed.2d at 906, 911. With all Terry stops, the police officer's conduct must be reasonable under the circumstances known to the officer at the time he initiated the stop. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909; People v. Long, 99 Ill.2d 219, 229, 75 Ill.Dec. 693, 697, 457 N.E.2d 1252, 1256 (1983). To be considered reasonable, a Terry stop must be based upon more substantial facts than a police officer's hunch. Terry, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; People v. Smithers, 83 Ill.2d 430, 435-36, 47 Ill.Dec. 322, 326, 415 N.E.2d 327, 331 (1980). To justify a temporary detention, the police officers must point to specific, articulable facts which, when considered with natural inferences, make the intrusion reasonable. Smithers, 83 Ill.2d at 436, 47 Ill.Dec. at 326, 415 N.E.2d at 331, citing People v. McGowan, 69 Ill.2d 73, 78, 12 Ill.Dec. 733, 735, 370 N.E.2d 537, 539 (1977).

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the permissibility of Terry stops was extended, from stops based only upon a police officer's personal observation, to stops based upon an informant's tip. The Supreme Court stated that the informant's tip was stronger than an anonymous tip because the informant previously provided accurate information to the police. Adams, 407 U.S. at 147, 92...