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People v. Kiser

OPINION FILED MARCH 21, 1983.

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

v.

STANLEY KISER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.

JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Following defendant's arrest for possession of cocaine, he moved to quash the search warrant and suppress the evidence. The trial court denied defendant's motions. After a bench trial, defendant was found guilty and sentenced to four years' imprisonment.

On appeal, defendant contends that (1) the police officers' initial contact with him constituted a seizure in violation of his fourth amendment right against unreasonable seizures; (2) the seizure of defendant's baggage without probable cause violated his fourth amendment rights; (3) the information obtained from the Drug Enforcement Administration computer was unreliable; and (4) the trial court improperly denied defendant an evidentiary hearing to establish that the Drug Enforcement Administration computer information was unreliable.

We reverse.

On May 6, 1980, at 3:20 p.m., Stanley Kiser (defendant) arrived on a commercial airline flight from Fort Lauderdale, Florida. Drug Enforcement Administration (DEA) agent Bob Fulkerson and Chicago police officers Thomas Kinsella and Richard Powers were in the arrival area conducting surveillance for the purpose of detecting unlawful narcotics traffic. Defendant was the fifth or sixth passenger to deplane. He had two carry-on bags with him and was dressed casually in comparison to the other passengers on the business dominated flight. He walked at a slow pace down the concourse area toward the terminal. After stopping at two separate drinking fountains, he began walking at a somewhat faster pace to the Budget Rent-A-Car counter. After renting a car, he proceeded to the automatic exit doors.

Fulkerson and Powers walked alongside defendant as he left Budget. Defendant testified that as he reached the exit doors, a man grabbed his elbow, identified himself as a Federal agent and asked defendant if he could speak with him. At this point, Fulkerson and Powers were blocking the exit doors. All three men moved to an area adjacent to the escalators.

Defendant was asked to produce identification. He handed Fulkerson his driver's license. Defendant was then asked to produce his rental car agreement, which he did. Eventually, his license was returned. However, after Officer Kinsella joined the surveillance team, defendant was again asked to produce his license as well as additional forms of identification.

After examining defendant's license and the rental car agreement, Kinsella consulted with another agent, who had performed a computer search under the name of "Carl Kiser," the name on the credit card which defendant had used. That search indicated that a "Carl Kiser" was a drug dealer but had no information pertaining to Stanley Kiser.

Defendant was then asked to open his baggage and refused. Kinsella testified that defendant's voice was "nervous and shaky" and that he was visibly trembling during the questioning. Fulkerson informed defendant that the officer had reason to believe his baggage contained narcotics and that the bags were to be detained. Defendant's license, rental car agreement, and luggage receipt were handed to defendant and he was told he could leave.

Defendant left the airport. A customs dog was brought to the baggage area. The dog reacted positively by biting and pawing defendant's bags. A search warrant was obtained approximately five hours later. Cocaine was found in one of the bags and defendant was charged with possession of a controlled substance. Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402.

The trial court denied defendant's motion to suppress the evidence. He was found guilty and sentenced to a term of four years.

First, we must determine whether a seizure occurred when Agent Fulkerson and Officer Powers initially approached defendant and asked to see some form of identification. Such a determination is imperative because only the objective facts, known to an officer at the moment of the seizure, may be considered in deciding whether the particular intrusion was justified. (Terry v. Ohio (1968), 392 U.S. 1, 21-22, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1880.) A lesser standard would invite intrusions upon constitutionally guaranteed rights based upon nothing more substantial than inarticulate hunches. 392 U.S. 1, 22, 20 L.Ed.2d 889, 906, 88 S.Ct. 1868, 1880.

• 1 A seizure occurs whenever a police officer accosts an individual and restrains his freedom to walk away. (392 U.S. 1, 16, 20 L.Ed.2d 889, 903, 88 S.Ct. 1868, 1877.) "Seizure" does not require physical restraint per se. If it is apparent from the circumstances that an individual is not free to ignore the officer and walk away, a seizure has occurred triggering fourth amendment protection. United States v. Pope (6th Cir. 1977), 561 F.2d 663, 668.

In the present case, it is apparent that the trial judge found defendant's testimony credible. The judge commented that the defendant approached the exit doors, Fulkerson and Powers asked him to stop, defendant stopped and they brought him to an area adjacent to the escalator. The trial court's factual finding compels a ...


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