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People v. Pagliara





APPEAL from the Circuit Court of Cook County; the Hon. MARVIN E. ASPEN, Judge, presiding. MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Robert Pagliara, was charged by indictment with the offense of possession of 300 grams of PCP, a derivative of phencyclidine and a controlled substance, in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 1402(a)). Upon a bench trial defendant was found to be guilty as charged. Judgment was entered on the finding and defendant was sentenced to serve a term of probation of five years, the first year of which to be served in the Department of Corrections under conditions of periodic imprisonment.

From entry of the judgment of conviction defendant appeals. The following issues are presented for our consideration: (1) whether the trial court erred in denying defendant's motion to suppress as evidence certain contraband and oral statements allegedly obtained in contravention of defendant's constitutional rights; (2) whether the trial court erred in admitting into evidence the aforementioned contraband due to an alleged failure to adequately establish a chain of custody and possession; and (3) whether the evidence properly adduced at trial was sufficient to establish defendant's possession of the aforementioned contraband beyond a reasonable doubt.

A review of the facts reveals that at approximately 2:48 a.m. on May 13, 1973, defendant was unsuccessfully attempting to start an automobile that had been parked so as to block an alley in the vicinity of 418 Main Street in Lemont, Illinois. The vehicle was owned by Robert and Cheryl Sells. At trial, defendant indicated that he occasionally used the vehicle; that the last time he had been in the vehicle was approximately two weeks prior to the incident; that the Sells had loaned him the automobile for the evening on the date of the incident; and that they "gave" defendant title to the vehicle a few days thereafter.

Defendant, as sole occupant of the vehicle, was in the driver's seat when he was approached by Lemont Police Department Corporal Donald Wiegand. Wiegand placed a radio message for assistance to his partner, Charles Wood, and inquired of defendant as to his identity and the ownership of the vehicle in defendant's possession. Defendant told Wiegand that he had no personal identification on his person but that such documents might be obtained from a nearby apartment. Officer Wood accompanied defendant to the apartment building and waited outside the door while defendant entered an upstairs apartment.

During this time, Cheryl Sells, descended to the street, approached Wiegand, identified herself, and showed Wiegand a certificate of title to the vehicle in which defendant had been seated. Wiegand asked her if defendant was her husband. She did not reply. Wiegand insisted upon verifying defendant's driver's license.

Defendant did not possess such license. However, he returned to the scene bearing a traffic citation which had been issued in the name of one Robert Sells. At trial, defendant admitted that he had obtained the citation from the Sells' apartment, with Robert Sells' permission, for the purpose of providing false identification to the investigating officers.

As defendant walked toward Wiegand, defendant dropped the traffic citation to the ground, bent down to retrieve it, and as he arose Wiegand had occasion to observe a plastic bag hanging from defendant's belt. Wiegand seized the bag, placed defendant under arrest, and informed defendant of his constitutional rights. The bag was subsequently discovered to contain quantities of chemical contraband. This contraband was suppressed as evidence prior to trial of the instant cause and the propriety of such suppression is not at issue in the case presently at bar.

Defendant was then asked by the officers if they could search the automobile. Defendant responded, "Go ahead and search." Defendant personally removed the key from the ignition, opened the door of the automobile, and then opened the trunk of the vehicle with an additional key then in his possession. Officer Wood searched the interior of the vehicle and in an area described as being under the dashboard near the heater duct by the firewall, Wood discovered two plastic bags. One contained a white powdered substance and the other contained $6,000 in United States currency. The bags were shown to defendant who responded, "Where did that come from?" Wood handed the two newly recovered bags to Wiegand who summoned their supervisor, Sergeant Richard Stech.

Upon his arrival on the scene, Stech was presented with the plastic bags and their contents by Wiegand. Stech examined the bag containing white powder and found that it contained smaller bags surrounding the white powder which had been formed into balls of an unspecified diameter. Stech personally transported the evidence to the Lemont Police Department.

At the station house, Stech attempted to question defendant. Defendant alternatively stated that his name was Robert B. Sells and Robert Pagliara. Defendant's fingerprints were shown to be those of Robert Pagliara. Defendant indicated that he would not speak to Stech but expressed a willingness to talk to Agent Fred Garcia of the Cook County Sheriff's Police. A telephone connection was established between defendant and Garcia. Stech was present in the room in which defendant was situated.

According to Stech, defendant asked Garcia, "What kind of a deal can we make?" Defendant then offered, "You could take the money" and he (defendant) would retain "the stuff."

Again, upon completion of the telephone call, defendant informed Stech that he knew the officer was tired and was poorly remunerated for his services. Whereupon defendant offered Stech the money recovered from the automobile to cover Stech's inconvenience. According to the terms of the proposed bargain defendant would retain "the stuff." Defendant was then processed and incarcerated.

Stech placed the plastic bag of white powder in a metal cabinet located on police property. The plastic bag containing the recovered currency was inventoried and it too was placed in the cabinet. The cabinet was locked. Stech testified that the cabinet has a double lock to which only he and the chief of police possessed keys and that the only other items in the cabinet on the date in question were official documents.

Later that morning, Stech removed the plastic bag containing the white powder from the cabinet in which it had been stored. Stech transported it to the Cook County Sheriff's Police Station in Bedford Park, Illinois. The substance was field tested and produced a chemical reaction indicating that the substance was either cocaine or PCP. Officer Jones weighed and photographed the powder, placed it ...

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