Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Knox County,
the Hon. Scott Klukos, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The defendant, Lynn Michael Pates, after a jury trial, was convicted in the circuit court of Knox County of the possession, with intent to deliver, of more than 500 grams of cannabis in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(e)). He was sentenced to serve four years' probation, with 150 days to be served in the county jail, and was also fined $4,000. On appeal the appellate court reversed the judgment of conviction and remanded the cause for a new trial. (80 Ill. App.3d 1062.) We allowed the State's petition for leave to appeal under Rule 315 (73 Ill.2d R. 315). The only issues before us are whether the jury was properly instructed on a defense of entrapment, and whether marijuana found in the defendant's car following his arrest should have been admitted into evidence.
The circumstances leading to the defendant's arrest are set forth in the opinion of the appellate court. Since no claim is made here that the evidence failed to prove beyond a reasonable doubt that the defendant was guilty, no more than a summary of it is required. On May 22, 1978, Craig Bultemeir was arrested by officers of the Knox County sheriff's department for the unlawful delivery of cocaine. While in the custody of the arresting officers Bultemeir was told by Deputy Sheriff William Muir that his cooperation with the police in making additional arrests for narcotic violations would be considered in connection with the charge pending against him.
The testimony was in conflict as to whether the name of the defendant, whom Bultemeir knew, was volunteered by Bultemeir or was suggested by Officer Muir. In any event, Bultemeir telephoned the defendant at Muir's direction and relayed a fictitious story supplied by Muir to the effect that Bultemeir had with him two friends from Rockford who wished to buy 10 pounds of marijuana. The defendant, who had no record of prior arrests, stated initially that he had no marijuana in his possession, but after several additional phone calls made by Bultemeir at Muir's direction, the defendant said that he knew someone who did have some marijuana for sale, and a meeting was set up for the following day at which the marijuana would be delivered.
The defendant appeared at the rendezvous in his car, followed by a pickup truck occupied by two other persons, Stephen Hall and Ronald Boone. Bultemeir arrived in the company of two agents of the Illinois Department of Law Enforcement, dressed in plain clothes, who posed as the friends of Bultemeir that wanted to purchase the marijuana. The officers approached the defendant, who gave them two marijuana cigarettes as samples, and told the officers that the marijuana to be sold was in the back of the pickup truck, where the officers then viewed two five-pound bags. There followed a conversation in which the officers, in answer to their inquiry, were told either by the defendant or by one of his companions that the price was $4,000. All three suspects were then arrested. Hall and Boone were charged with the same offense as the defendant, but were tried separately.
At the trial, the defendant asserted the affirmative defense of entrapment. Both the defendant and the State tendered instructions on entrapment. The defendant's instruction was No. 24.04 of the Illinois Pattern Jury Instructions (IPI), Criminal (1968). It was refused. The State's instruction was a modification of No. 24.04, and it was given to the jury over the objection of the defendant. For clarity of exposition we set out below section 7-12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7-12), which defines entrapment, IPI Criminal No. 24.04, and the State's instruction.
Section 7-12 of the Criminal Code of 1961 provides:
"A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated." Ill. Rev. Stat. 1979, ch. 38, par. 7-12.
IPI Criminal No. 24.04 (1968) reads:
"It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant he was incited or induced by a [public (officer) (employee)] [an agent of a public (officer) (employee)] to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if a [public (officer) (employee)] [an agent of a public (officer) (employee)] merely afforded to the defendant the opportunity or facility for committing a crime [which he was willing to commit] in furtherance of a criminal purpose which the defendant originated."
People's Instruction No. 16 stated:
"It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant he was incited or induced by an agent of a public officer to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if an agent of a public officer merely afforded to the defendant the opportunity or facility for committing a ...