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03/16/88 the People of the State of v. Shawn Fleet Et Al.

March 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

SHAWN FLEET ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 244, 168 Ill. App. 3d 126, 118 Ill. Dec. 789 1988.IL.369

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

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. STAMOS and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

In these consolidated cases, the State appeals from orders discharging defendants and dismissing charges against them of possession of a controlled substance. We must determine whether: (1) this court lacks jurisdiction to entertain the State's appeals; (2) the circuit court erred in dismissing charges against defendants pursuant to a finding of no probable cause to detain; and (3) the circuit court erred in refusing to release defendants on bond pursuant to a finding of no probable cause to detain.

On June 17, 1986, police officers arrested defendant Shawn Fleet (Fleet) following a 10-minute surveillance by the officers, during which time they observed Fleet walk to a nearby pole, reach into the grass at its base, and remove a small package. From the package Fleet took "tin foil [objects]" which he exchanged with passersby and motorists for money. As the officers approached defendant, he dropped a tinfoil packet from his hand to the ground; in it, the police discovered "crushed green plant . . . laced with PCP." At the base of the pole police recovered a cigarette box holding 14 tinfoil packets, each containing the same crushed green plant. Fleet was placed in custody, informed of his constitutional rights and transferred to a police facility, where he was charged with possession of a controlled substance. Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402.

Police stopped defendant Dwayne Moon, a/k/a Dwayne Miller (Moon), on June 17 or 18, 1986, after observing Moon drop a tinfoil packet to the ground and walk away. Upon opening the packet, the arresting officers found "green plant (suspect marijuana) laced with suspect PCP" and arrested Moon for possession of a controlled substance and "minor drinking." Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402; Chicago Municipal Code ch. 190, par. 4 (1984).

While conducting a narcotics surveillance on June 18, 1986, police saw defendants Sharon Keyes (Keyes) and Kim Hudson (Hudson) make "numerous drug sales." The police approached defendants and asked them what they were doing. Keyes had a difficult time speaking, and the officers asked her to open her mouth, where they discovered a tinfoil packet of "a crushed green plant, suspect marijuana laced with PCP." The officers searched Keyes and found another packet containing a similar substance in her pants pocket.

During the same street stop, the police observed Hudson throw two tinfoil packets to the ground; these, too, contained "a crushed green plant, suspect marijuana laced with PCP." Both Hudson and Keyes were charged with possession of a controlled substance. Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402.

On June 18, 1986, Moon and Fleet appeared before the circuit court in separate hearings to determine whether there was probable cause to detain them. Hudson and Keyes received a similar hearing on June 19, 1986. In each instance, the State admitted that defendants' arrest reports failed to demonstrate how the arresting officers knew the purported marijuana seized from defendants was laced with PCP. In the absence of field tests to prove the presence of controlled chemical agents in the tinfoil packets, the court found no probable cause to extend defendants' custody and discharged them.

The court also refused to release defendants on their own recognizance bonds, asserting that such releases under these circumstances would deprive defendants of their freedom and impinge upon their constitutional rights.

The State filed notices of appeal for causes 86 -- 1966, 86 -- 1967 and 86 -- 1969 on July 18, 1986. This appeal followed. I

Defendants initially argue that this court lacks jurisdiction to entertain the State's appeals because the State may appeal only from those orders enumerated in Illinois Supreme Court Rule 604(a)(1)(107 Ill. 2d ...


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