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People v. Zozak

OPINION FILED OCTOBER 14, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PAUL ZOZAK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Jackson County; the Hon. RICHARD E. RICHMAN, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Defendant was charged by information with possession of .19 grams of cocaine, a controlled substance, in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402(b)). Defendant was convicted as charged after a bench trial at which all facts were stipulated by the parties.

In this appeal, defendant contends that (1) the trial court erroneously denied his motion to suppress a foil packet containing cocaine, and (2) because all facts at the bench trial were stipulated, defendant should have been admonished pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) as though he had pleaded guilty.

Two witnesses testified at the hearing on defendant's motion to suppress, David Allen and Michael Teas, both Jackson County detectives. According to these witnesses, pursuant to a search warrant listing items taken in a burglary, they entered defendant's residence, an 8- by 10-foot room in an 80- by 30-foot shed behind the residence of Barbara Trent in Makanda, Illinois. The victims of the burglary, Dr. Hunter and Dr. Ellert, and Ms. Trent were also present when the search warrant was executed. Defendant arrived while the detectives were present and was arrested. Numerous items related to the burglary were, in fact, seized during the search, including three bracelets, two watches, a knife, a typewriter, a calculator, and a down jacket.

Detective Allen testified that he had been a Metropolitan Enforcement Group officer for five years, that he had participated in 50 to 60 prior drug-related arrests and that he had attended various classes pertaining to narcotics. Allen related that when he entered defendant's room, he noticed an aluminum foil "packet" located on the corner of a night stand beside the bed. Allen then stated that the packet was "folded in such a manner that it indicated to me it could be a controlled substance." He elaborated that "it was folded basically in half and lipped, but there was [sic] creases on it indicating it had been folded into a smaller packet at one time, which is very common for the sale or storage of controlled substances." He conceded that legitimate substances might be enclosed in foil, "but not usually in that size." He could not ascertain its contents without opening it. He did so and discovered that it contained white powder. To Allen's knowledge they were not looking for anything the size of the foil packet under the search warrant. Allen also found "drug paraphernalia" of an unspecified nature inside the top drawer of the night stand.

Detective Teas testified that he did not see the foil packet until Allen told him he had found it and was seizing it. Teas was unaware whether Allen had already looked inside it. Teas' first good look at it was at the sheriff's office. He described it as approximately one and one-quarter inches square.

The trial court stated his finding that the nature of the packet, and the place and circumstances in which it was found, gave the officer probable cause to believe defendant had committed the offense of unlawful possession of a controlled substance. The court reserved the question of whether the search warrant sufficiently described the premises to be searched, a question he later resolved against defendant.

Defendant concedes that the officers were within his room pursuant to a valid search warrant. The parties dispute, however, whether Allen's discovery of the unspecified drug paraphernalia preceded Allen's seizure of the foil packet and thus could have been a fact contributing to Allen's belief that the packet contained narcotics. The dispute is based on Allen's answers to two questions. The first was posed by the State's Attorney:

"Q. And did you notice that paraphernalia prior to your noticing the aluminum packet?

A. No, sir. It was after."

The second was asked by defense counsel on cross-examination:

"Q. So then when you saw the tinfoil packet did you proceed to pick it up and open it?

A. That's correct."

Defendant contends that these questions and answers show Allen seized and opened the packet prior to discovering the "paraphernalia." The State characterizes these responses as ambiguous with respect to that inquiry. The State also notes in this regard that (1) it was initially defendant's burden to show that the seizure of the packet was unlawful (Ill. Rev. Stat. 1979, ch. 38, par. 114-12(b); People v. Normant (1975), 25 Ill. App.3d 536, 323 N.E.2d 553), and (2) in reviewing the ruling of the trial court on the motion to dismiss, it is this court's duty to ...


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