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06/29/87 the People of the State of v. Aubrey Holman Et Al.

June 29, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

AUBREY HOLMAN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 1139, 157 Ill. App. 3d 764, 110 Ill. Dec. 108 1987.IL.917

Appeal from the Circuit Court of Cook County; the Hon. Michael Getty, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Defendants, Aubrey Holman and Howard Young, were charged by information in the circuit court of Cook County with violations of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1100 et seq.). Holman was charged with possession of a controlled substance with intent to deliver in violation of section 401(d) of the Act, and Young was charged with possession of a controlled substance in violation of section 402(b). (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1401(d), 1402(b).) Following a bench trial, both defendants were found guilty of the respective charges placed against them. Thereafter, the court denied the defendants' post-trial motions and sentenced Holman to four years' imprisonment with one year's mandatory supervised release and sentenced Young to two years' imprisonment with one year's mandatory supervised release.

The defendants appeal and raise the following contentions: (1) the charging instrument failed to charge either defendant with an offense recognized in Illinois; (2) the physical evidence introduced against the defendants was seized during searches incident to their illegal warrantless arrests which were unsupported by probable cause; (3) the State failed to preserve the integrity of its physical evidence and failed to prove chain of custody; (4) the trial court improperly placed the burden of proving chain of custody upon defendants; and (5) the trial court abused its discretion when it sentenced the defendants.

We affirm.

Prior to trial, each defendant moved to quash his arrest and to suppress evidence obtained as a result of his allegedly illegal arrest. During the hearing on the defendants' motions, Jerome Rusnak testified for the defendants. Rusnak, a 19-year veteran of the Chicago police department, testified that he and his partner were working in the vicinity of 2341 West Madison Street, Chicago, Illinois, on the evening of February 3, 1985. Rusnak stated that he and his partner were working in plain clothes and were assigned to an unmarked squad car. Rusnak characterized the area as a "high drug traffic area" where numerous arrests had been made in the past.

On that evening at about 8:30 p.m., Rusnak testified, while using a pair of binoculars, he watched two individuals standing together on Madison Street approximately 200 to 300 feet away. Rusnak stated that he observed one of the individuals reach inside his coat, remove a plastic bag and shake two pills into his hand. Rusnak identified defendant Holman in court as that man. Rusnak testified that Holman then handed two pills to the other individual, who then walked away from Holman and onto Western Avenue. Rusnak identified defendant Young in court as that other individual.

Rusnak stated that he believed he had just witnessed a drug transaction occur between the two defendants. Rusnak based his belief upon the activity he had just observed, the area in which he had observed it and his 19 years' experience as a police officer during which he had observed hundreds of drug transactions. Rusnak admitted that he had testified at the defendants' preliminary hearing that he could not tell what was in the bag or what was exchanged between the defendants because he was too far away. However, Rusnak explained that he meant that he could not specifically identify what type of pills had been exchanged between Young and Holman but that he did see an exchange of pills take place.

Rusnak testified further that he only had lost sight of Young for 15 to 30 seconds after Young walked away from Holman. Rusnak stated that he then drove onto Western Avenue and spotted Young, who was standing near a bus stop. Rusnak further stated that he drove alongside Young and stopped. Rusnak was approximately five to seven feet away when he saw Young drop one blue pill and one yellow pill to the sidewalk. Rusnak stated that he recovered the two pills dropped by Young. Again, based upon his experience as a police officer, Rusnak suspected that the yellow pill was pentazocine (Talwin), a controlled substance, and that the blue pill was pyribenzamine, not a controlled substance. This combination, Rusnak said, is commonly referred to as "T's and blues." Rusnak testified that he then placed Young under arrest.

Rusnak further testified that he and his partner returned to the scene on Madison Street where the exchange between Young and Holman had just occurred. Rusnak stated that he then placed Holman under arrest and transported both defendants to the police station. Once at the station, Rusnak said that he stood next to Holman while another police officer searched him. According to Rusnak, the other officer recovered a plastic bag from Holman's coat. That bag contained eight blue pills and eight yellow pills were also suspected of being "T's and blues."

Defendant Aubrey Holman also testified at the suppression hearing. According to Holman, he was crossing the street with his cousin, Randall Lewis, to buy some shampoo when both he and his cousin were arrested by Rusnak. Holman said that Rusnak did not show him any warrant. Holman also denied knowing Young, he denied giving Young any pills on the night he was arrested, and he denied ever talking to Young before his arrest.

Afterwards, the trial Judge denied both motions to suppress. The Judge stated that he found Officer Rusnak to be a credible witness and that, under the circumstances, he had a right to stop the defendants to investigate their suspicious behavior. The Judge also found that no search had occurred with respect to defendant Young since he had dropped what the experienced officer suspected was a controlled substance. At that point, the Judge stated, there was probable cause to arrest Young. The Judge also found that there was probable cause to arrest defendant Holman. Therefore, the trial court concluded that the search of Holman at the station was proper.

Thereafter, the defendants' trial began. The parties stipulated that the initial testimony of Officer Rusnak at trial would be exactly as he testified at the suppression hearing. Rusnak was called to the stand and continued testifying about the events of February 3, 1983, and stated that he had placed the two pills dropped by Young into an evidence envelope with inventory number 166213. Rusnak also said that the 16 pills and the plastic bag recovered from Holman's coat were placed into an evidence envelope with inventory number 166214. Rusnak further testified that both envelopes were sealed and then placed into a vault at the ...


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