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People v. Nickson

SEPTEMBER 13, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding.


After a bench trial, defendant was found guilty of possession of a controlled substance in violation of Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402(b), and sentenced to a term of 3 to 8 years.

On appeal, defendant argues that (1) the petition to quash his arrest and suppress evidence should have been granted, because the arrest and search were made without warrants and were based upon information supplied by an informer whose reliability was not proved; (2) the informer should have been required to appear at the hearing on the petition to quash the arrest and suppress evidence; (3) a statement should have been made by the court as to the findings of fact and conclusions of law upon which it based its denial of defendant's motion to suppress; (4) the evidence did not sufficiently establish the substance recovered was a narcotic; and (5) the evidence failed to establish his guilt beyond a reasonable doubt.

The following facts were testified to at the hearing on the petition to quash the arrest and to suppress evidence: On August 23, 1971, at approximately 12 P.M., an unidentified informer voluntarily came to police headquarters and gave information to Officers Jackson and Mitchell concerning the activities of one "Greasy Bob", later identified as defendant, a drug seller operating in the area of 43rd and King Drive. Jackson testified that he had known this informer for approximately 14 months and had received information from him on four prior occasions concerning narcotics activity. On each of these occasions narcotics were recovered and arrests were made, which resulted in one conviction and three pending cases in court. Jackson also testified that pursuant to an arrangement with the informer, he and Mitchell met the informer at approximately 2:30 P.M. in the vicinity of 44th and Vincennes, where the informer told them he had purchased a quantity of heroin from Greasy Bob about 45 minutes earlier. The informer was not searched and did not display any narcotics, because he said he had used the purchase. He told the officers that Greasy Bob still had heroin in his possession in a "Stanback" *fn1 package.

The officers and the informer then cruised the immediate area in a squad car and, after a period of time, at 45th between Vincennes and King Drive, the informer pointed out Greasy Bob. Jackson testified that he and Mitchell left the car and followed Greasy Bob to 4346 King Drive, where he entered the basement of a two-story building by the side entrance. The basement door was open, and as he and Mitchell entered, he called out, "Greasy Bob," and announced his office. At that point, Jackson stated defendant dropped a small package to the ground. Subsequent examination revealed the package to be a Stanback package containing two tinfoil packages with a white powdered substance inside (later established to be heroin). Defendant was then arrested.

Officer Mitchell testified he had known the informer for only about a week prior to August 23, 1971, and had never previously received any information from him. When he and Jackson met the informer at 44th and Vincennes, it was approximately 11:45 A.M. The informer told them he had purchased heroin from Greasy Bob 45 minutes earlier and that Greasy Bob was carrying more heroin in a Stanback package. They drove until approximately 2:30 P.M., at which time the informer pointed out Greasy Bob. He and Jackson walked toward defendant, who turned into a gangway at 4346 King Drive and then into the basement of that building, pushing the door behind him. As they followed him inside, Mitchell, who had his badge in his left hand and his weapon in his right hand, announced his office and showed his badge and then searched him.

Defendant testified he lived in the basement of a four-story building at 4346 King Drive, when he stated people were mostly moving out because the electricity had been shut off for about a month. The lock on the basement door had been knocked off and, after he entered, he pushed the door shut and started into a little room when he heard someone say, "Hold it," and felt something cold against the back of his neck. Thereafter, the officers searched him and his room, and Officer Jackson then said he recovered a package.

The court denied defendant's petition to quash the arrest and suppress evidence without making any written or oral statement as to its findings.

At trial it was stipulated, subject to cross-examination, that the testimony of Jackson would be the same as on the motion to suppress. Jackson then, on cross-examination, described the basement of the building as follows: "When you first walk into the basement there is like a large room. Then there is a little hallway leading to the room where Mr. Nickson was living at the time." Two young ladies, whose names he did not obtain, were in defendant's room at the time Jackson entered the basement, and when he entered he was about 10 to 15 feet behind defendant. He did not conduct a search of defendant because when he called to him, defendant dropped the Stanback container to the floor and a tinfoil package came out of it. Jackson picked up both, and on looking inside the Stanback container he saw another tinfoil package. Both tinfoils contained a white powder. He knew from his experience as a police officer that narcotics are usually wrapped in tinfoil. He made the arrest after he retrieved the Stanback container. At that point, he told defendant he was under arrest for possession of narcotics.

Defendant, when called upon to testify, stated that the Stanback package belonged to him and, in a colloquy on direct examination, made the following admission:

"Q: Mr. Nickson, on August 23, 1971, were you in possession of any heroin?

A: No.

Q: You see this Stanback package that was previously marked as part of the State's Exhibits?

A: Yes.

Q: Did you ever see that ...

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