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02/25/88 the People of the State of v. Liferro

February 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

IVORY TALIFERRO, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

520 N.E.2d 1047, 166 Ill. App. 3d 861, 117 Ill. Dec. 696 1988.IL.256

Appeal from the Circuit Court of Champaign County; the Hon. John R. DeLaMar, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The defendant, Ivory Taliferro, appeals his convictions of four counts of the offense of unlawful delivery of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(c).) He contends the circuit court erred in denying without an evidentiary hearing his motion to suppress evidence, which was premised on an alleged violation of the Posse Comitatus Act (Act) (18 U.S.C. § 1385 (1982)), and the circuit court erred in assessing against him a "street value" fine (Ill. Rev. Stat. 1985, ch. 38, par. 1005-9-1.1) of $100, when the evidence established undercover police officers paid only $90 for the illegal drugs which formed the basis for the charges against him.

Following Taliferro's indictment on April 30, 1987, he filed a motion to suppress evidence allegedly obtained as a result of the United States Air Force's involvement and participation in an investigation by the Champaign police department and the Illinois State Police into drug dealing on his part. The motion alleged the Air Force's involvement and participation in the investigation violated the Act, which provides:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both." (18 U.S.C. § 1385 (1982).)

Taliferro's motion to suppress evidence named Airman Christopher J. Ferguson as the individual who purportedly assisted in the investigation in violation of the Act. The motion further alleged officers of the Champaign police department and the Illinois State Police wilfully requested Ferguson's assistance and active participation in the investigation with full knowledge he was enlisted in the Air Force, and Ferguson's participation in the investigation required him "to perform traditional duties of law enforcement officers." The motion further alleged (1) Ferguson's assistance, help, and active participation in the investigation was carried out with full notice, knowledge, and approval of Air Force officers stationed at Chanute Air Force Base, (2) Ferguson participated in the investigation as a member of the Air Force and not as a private citizen, and (3) Ferguson's participation in the investigation was not justified by any military purpose and was not conducted pursuant to military regulations. The motion concluded with an allegation Ferguson's violation of the Act "was flagrant and intolerably surpassed acceptable levels of military involvement into civilian law enforcement duties, and at all time [ sic ] herein mentioned was frequent and widespread."

At a hearing on Taliferro's motion to suppress evidence held July 10, 1987, the circuit court stated (1) it was improbable Congress intended undercover drug dealings by military personnel to fall within the proscription of the Act, (2) the allegations of Taliferro's motion to suppress did not establish a flagrant violation of the Act, and (3) assuming a violation of the Act did occur, evidence obtained as a result of the violation was not subject to an exclusionary rule. Therefore, the court held there was no need for the presentation of evidence in order to resolve the issues raised by Taliferro's motion to suppress and denied the motion.

Taliferro's stipulated bench trial took place on July 13, 1987. It was agreed Joseph Bates, a trooper with the Illinois State Police, would testify he acted as an undercover narcotics agent in the Champaign County area during March and April 1987. On March 16, 1987, Bates, in the company of Christopher Ferguson, an airman at Chanute Air Force Base, went to 1305 North Hickory in Champaign. At that location, Ferguson introduced Bates to Taliferro and represented to Taliferro Bates was another airman from Chanute Air Force Base. Taliferro refused, however, to sell any narcotics to Bates. Bates then exited the residence, handed Ferguson $25 which had been provided him by the Champaign police department, and went outside to wait in a vehicle. Within a few minutes Ferguson, who no longer had the $25, exited the residence and handed Bates a substance purported to be a quarter gram of cocaine.

Bates returned to 1305 North Hickory on March 23 and April 14, 1987. On the first date, he purchased from Taliferro a quarter gram of a substance purported to be heroin for $20; on the second date, he purchased from Taliferro a substance purported to be a quarter gram of heroin for $20 and a substance purported to be a quarter gram of cocaine for $25.

The parties further stipulated Christopher Ferguson would testify he is an airman at Chanute Air Force Base, but worked as a confidential informant and helped the Champaign police department and the Illinois State Police in identification of sellers of controlled substances in the Champaign County area. After he was given $25 by the Champaign police department, he entered the residence at 1305 North Hickory in the company of Joseph Bates and had a conversation with Taliferro. After Bates left the residence to wait in a car, Ferguson gave the $25 to Taliferro, who gave him a packet containing a white powdery substance. Ferguson gave the white powdery substance, which was purportedly a quarter gram of cocaine, to Bates.

Finally, the parties stipulated as to the testimony of Michael Cravens, a forensic scientist at the Illinois State Police Crime Lab. His tests of the substances purchased by Bates and Ferguson at 1305 North Hickory established the substance purchased on March 16, 1987, was cocaine, the substance purchased on March 23, 1987, was heroin, ...


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