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05/02/88 the People of the State of v. William Hill Et Al.

May 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

WILLIAM HILL ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

524 N.E.2d 604, 169 Ill. App. 3d 901, 120 Ill. Dec. 574 1988.IL.643

Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from the denial of a motion to suppress evidence and from convictions following a bench trial for possession with intent to distribute more than 30 grams of a controlled substance. Defendants raise the following issues on appeal: (1) whether they were subjected to an illegal search of their hotel room; (2) whether the warrantless entry was justified by exigent circumstances; (3) whether there was probable cause for the warrantless entry; (4) whether the testing method used by the State chemist proved beyond a reasonable doubt that the powder seized was a controlled substance; (5) whether defendant Williams was proved guilty beyond a reasonable doubt of constructive possession of a controlled substance; (6) whether defendants were proved guilty beyond a reasonable doubt of possessing a Class X amount of a controlled substance; and (7) whether defendant Hill improperly received a disparate sentence.

Defendants William Hill, Marvin August and Derrick Williams were charged in a two-count complaint with one count of possession of a controlled substance with intent to deliver more than 30 grams of a substance containing cocaine and one count of possession with intent to deliver more than 15 grams of a substance containing heroin. Defendants were found guilty on both counts but judgment was entered only on the count alleging possession of more than 30 grams of cocaine.

Prior to trial, defendants moved to suppress the cocaine, the heroin, a handgun and paraphernalia seized from their motel room. At the suppression hearing, undercover police officer Mary Hodge and defendant Marvin August testified that the following events occurred.

On October 3, 1983, defendant August rented a room at the Roberts Motel located at 3735 South Michigan Avenue. The room was occupied for three days before the arrest; however, the parties disagree as to whether defendants Hill and Williams were in the room for an extended period of time or whether they arrived shortly before the police arrived.

On October 5, 1983, at approximately 12:30 in the afternoon, undercover narcotics officer Mary Hodge went to the room posing as a maid. She knocked on the door and asked if the defendants needed the linen changed. Defendant Williams opened the door and requested clean towels but did not let Hodge into the room to change the linens. Officer Hodge then went to room 216 of the motel to confer with several other surveillance officers. She attached an agent alert beeper to her body and returned to defendants' room with clean towels.

Defendant Williams again answered the door and spoke with Officer Hodge. While standing outside the room, she observed defendant Hill sitting at a desk mixing or separating a large amount of white powder. She also saw a triple beam scale and numerous small packets on the desk. Defendant August was sitting on the bed. Officer Hodge tripped the agent alert button and the other surveillance officers arrived and arrested the defendants. Officer Posilovich, one of the arresting officers, testified that the following items were seized: 34.5 grams of cocaine, 17 grams of heroin, a triple beam scale, two playing cards cut at the corners, a .38 caliber handgun and cartridges, a food mixer caked with white powder, hand sifters, a set of measuring spoons, an assortment of plastic bags, an iron, test tubes and $7,000.

At the suppression hearing, defendants argued that the warrantless search and arrest was not supported by probable cause or exigent circumstances. They also argued that Officer Hodge's use of subterfuge to gain entry to their motel room constituted an invasion of their right to privacy.

The trial court denied the motion to suppress, finding that probable cause existed when Officer Hodge observed the powder, scale and other items in the room and that exigent circumstances existed in that if the officers had delayed their search in order to obtain a warrant, there was a strong likelihood that defendants and the contraband would have been gone. The trial court also found that the defendants' reasonable expectation of privacy under the fourth amendment did not extend to common areas surrounding the motel room.

At trial, the State introduced the testimony of Officers Hodge and Posilovich and Jean Dietrich, a forensic chemist from the crime laboratory of the Chicago police department. Officer Hodge's testimony was similar to her testimony at the suppression hearing. Officer Posilovich made an in-court identification of the defendants and the items seized from the motel room.

Jean Dietrich testified that she initially performed tests on the seized substances on November 8, 1983. The weight of the white powder in State's exhibit 28P was 21.3 grams. She also performed color tests and a crystal test on the substance, both of which are preliminary screening tests to determine whether there is a likelihood that the powder contains a controlled substance. She then tested the powder with an ultraviolet spectrophotometer . The UV test generates a graph of the unknown sample which is then compared to a graph from a known sample of the drug. Ms. Dietrich testified that the UV graph from State's exhibit 28P matched a known cocaine UV graph and that she believed to a reasonable degree of scientific certainty that the substance in the exhibit contained cocaine.

She also performed color and crystal tests on powder weighing 0.34 grams from 1 to 20 packets in State's exhibit 28E. She stated that based upon those preliminary tests and the results of the tests on the other powder, this substance was "probably" cocaine. She weighed another single packet that contained 0.31 grams.

On January 20, 1984, Ms. Dietrich examined 14 packets of white and brown powder which had been contained in State's exhibits 28E and 28F. On one packet marked "40," on which color and infrared spectrum tests were done, the spectrum from the packet matched a standard heroin spectrum. A packet marked "Test 10" was weighed and color tests were performed. On a packet marked "one-half," the powder was subjected to color and IR tests. Ms. Dietrich stated that the spectrum obtained from the powder matched the standard heroin spectrum. She also weighed seven additional packets ...


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