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10/16/87 the People of the State of v. Paul Claver

October 16, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PAUL CLAVER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

515 N.E.2d 324, 162 Ill. App. 3d 62, 113 Ill. Dec. 515 1987.IL.1551

Appeal from the Circuit Court of Rock Island County; the Hon. David D. DeDoncker, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant Paul Claver appeals from his conviction of the offense of unlawful possession of a controlled substance for which he was fined $22,000 and sentenced to six years in the Illinois Department of Corrections. The sole issue asserted by defendant concerns the propriety of the denial of his motion to suppress the seizure by the police of approximately eight ounces of cocaine from his luggage.

According to the testimony at the suppression hearing, defendant arrived at the Quad City airport in Moline, Illinois, on August 6, 1986, on an Ozark Airlines flight originating in Florida. His arrival was observed by two plainclothes police officers, Investigator Mendoza and State Trooper Bouysse, who saw defendant look back over his shoulder several times as he came down the ramp. They then observed defendant walk up and down in the terminal lobby area near the exits. He looked out the windows towards the parking lot several times and finally went out towards the parking lot without collecting any luggage from the baggage area.

The two officers followed defendant and spoke to him as he stopped at his El Camino vehicle. They identified themselves as narcotics investigators and asked permission to search the shoulder bag he was carrying. He consented to that search, and the officers looked at his airline ticket and his driver's license before returning the bag to him. They asked him some questions about his trip. He told them he had been in Florida for 10 days on vacation, that he had other luggage, that he wanted to be sure his car was still in the parking lot before he claimed his larger pieces of luggage. The officers asked if he would mind if they searched the other luggage. According to both officers, he consented to such a search, but defendant, testifying in his own behalf, denied that he gave his consent. All testified that he did agree to meet the officers at the baggage claim area. He said he planned to drive his car around to the loading area near the door. As the officers walked the 75 yards back to the terminal, they turned and saw defendant exit the parking lot and drive away.

After waiting for his return, the officers identified the bags that belonged to defendant, waited until Ozark employees removed them from the baggage conveyor belt, and then asked the airline to notify them if anyone claimed the bags. The next day, without having obtained a search warrant, a special agent of the Illinois Division of Criminal Investigation searched the luggage and found two bags of cocaine hidden in the clothing. Later that day, defendant's roommate came to the airport to pick up defendant's luggage.

At the Conclusion of the hearing, the trial court denied the motion to suppress. In a written order, the court found that no investigative detention occurred which would have invoked fourth amendment rights and that the defendant gave a valid consent to search his suitcases.

On appeal defendant sets forth two arguments: (1) that the search came after an "investigative stop for questioning" which was not pursuant to reasonable suspicion or probable cause and (2) that the State failed to carry its burden of proof showing that the consent was freely and voluntarily given. We affirm.

Looking first at the validity of the consent, we note that the testimony of the police officers conflicted to some extent with that of the defendant concerning what was said in the parking lot. The question as to whether defendant consented to the search of his luggage was clearly a question of fact to be determined by the trial Judge, who was in a position superior to ours to determine the credibility of the witnesses.

Defendant testified that he only consented to return to the luggage area to discuss the question of a search. Agent Mendoza testified that defendant gave his consent to search ...


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