Appeal from the Circuit Court of Cook County; the Hon. Maurice
D. Pompey, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals the dismissal of an information charging defendants, Harry R. Gossage and David Gossage, also known as David Glosson, with possession of cannabis. The sole issue presented for review is whether the trial court properly dismissed the information on the ground that the State was estopped from prosecuting defendants where the latter agreed to participate in a drug abuse prevention program in exchange for the State's Attorney's agreement not to prosecute.
On October 1, 1981, Chicago police officer Thomas Zievencoe, accompanied by five other policemen, went to the apartment of David Glosson with a warrant for his arrest based on battery. Glosson opened the door; the police announced their office, arrested Glosson and advised him of his constitutional rights. The officers observed a quantity of crushed green plant on a table. They asked to whom the plant belonged, and defendants replied that it belonged to both of them. Gossage was then placed under arrest and advised of his rights. When Officer Zievencoe accompanied Glosson to the kitchen to get his shirt, he (Zievencoe) observed more marijuana.
Defendants disputed Officer Zievencoe's account of their arrests. According to Glosson, when Gossage turned the knob to open the door, the police pushed their way into the apartment, immediately handcuffed them, and began to search the premises without their consent. The police did not have a search warrant and did not announce their office. There was no crushed green plant on the table or in the kitchen sink. The police found the crushed green plant in the refrigerator in the vegetable bin. Gossage testified that a marijuana cigarette was on the table.
Assistant State's Attorney William Merritt testified that he interviewed defendants to see whether they were eligible to participate in the State's Attorney's Program for the prevention of Drug Abuse (the Program). It is a pretrial diversion program for first offenders under age 30 charged with possessing, in the case of marijuana, 100 or fewer grams of the substance. A defendant found eligible for the Program may move for and usually receives a three-month continuance. During this period, the defendant is required to attend five classes on Saturday mornings. Upon completion of the Program, the State's Attorney would move to nol-pros the charge pending against a defendant.
Merritt asked defendants whether the amount of marijuana they were charged with possessing was 100 grams or less; they replied in the affirmative. Ultimately, a laboratory report revealed that the amount of marijuana in defendants' possession was 748.2 grams. Defendants claimed that they were never individually interviewed by Merritt. The arrest report for defendants indicated that a "large quantity" of marijuana was discovered in their possession. Merritt admitted that he did not inspect this report. The complaint for preliminary examination did not indicate the amount of grams seized.
At a hearing on October 2, 1981, an assistant State's Attorney reported to the trial court that both defendants qualified for the Program. The trial judge asked defendants whether they wanted to participate and they agreed. Neither defendant was represented by counsel at the hearing. Both defendants signed (1) an agreement to participate in the Program; (2) an acknowledgement of waiver of notice and waiver of summons to appear; and (3) defendants' motion for continuance, waiver of notice, and waiver of summons to appear.
In a letter dated October 6, 1981, addressed to his employer, Gossage stated that he did not know the amount of marijuana found in his possession, but that at the time of his arrest police told him it was two or three pounds.
When assistant State's Attorney Merritt discovered that the amount of marijuana defendants were charged with possessing exceeded 100 grams, he notified them that he would withdraw the offer of participation in the Program.
At a hearing on January 2, 1982, the trial court denied defendants' motion to suppress evidence. The case was continued several times until January 4, 1983, when the trial court conducted a hearing on defendants' motion to dismiss, on the basis of estoppel, an information charging them with possession of marijuana (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(e)). The trial judge sustained defendants' motion, holding that they gave up rights when they accepted the offer to attend the Program and that the State was estopped from further prosecution. The State appeals.
The State makes several arguments that the trial court erred in dismissing the information. First, it contends that the advancement of the charge against defendants was a proper exercise of its authority to initiate and manage criminal litigation. Such authority allowed it to create the Program and, once created, allowed it to advance the cases of defendants admitted but later found ineligible. Next, the State claims that defendants were not prejudiced by the advance of the charge against them and gave up no rights in agreeing to participate in the Program. The State did not mislead defendants; rather, defendants misrepresented the amount of marijuana confiscated.
Defendants advance several arguments in favor of the proposition that the information charging them with possession of marijuana was properly dismissed. First, they argue that it is unconscionable to place upon a defendant, unrepresented by counsel, the burden of determining his own eligibility for the Program. Secondly, they contend that the common practice of charging a defendant with possession of an amount of contraband less than the amount actually confiscated negates the State's claim that defendants willfully misrepresented the amount of marijuana they were charged with possessing. Thirdly, defendants claim that they gave up substantial rights upon entering the Program in reliance upon the State's representations — the right to counsel with respect to making the decision whether to enter the Program and the right to a speedy trial during the three-month continuance granted to participants of the Program.
Finally, defendants contend that the State is chargeable with knowledge of the amount of marijuana possessed by defendants. When defendants were invited into the Program, the State had actual or constructive knowledge that a police report characterized the quantity of marijuana seized as "large" and that in a complaint for preliminary examination, dated October 2, 1981, there was a blank space next to the word "grams" which would have given the amount of ...