APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
527 N.E.2d 125, 172 Ill. App. 3d 878, 122 Ill. Dec. 753 1988.IL.1172
Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, Daniel LeCour, was charged with one count of unlawful possession with intent to deliver less than 10 grams of a substance containing cocaine. Defendant's motion to quash arrest and suppress evidence, based on lack of probable cause for his arrest, was denied. After a jury trial, defendant was found guilty as charged and was subsequently sentenced to a three-year term of imprisonment in the Department of Corrections. On appeal, he argues that there was no probable cause for his arrest, that his intent to deliver was not proved beyond a reasonable doubt, and that a mistrial should have been declared when a police officer testified to defendant's post-arrest silence. For the reasons set forth below, we affirm.
Defendant and his girlfriend were arrested on November 12, 1986, following a controlled drug transaction. Charges against her were nol-prossed in juvenile court, and defendant filed a motion to quash his arrest and suppress evidence seized from him after his arrest. At the suppression hearing, Detective Kirk Schwabe, of the Downers Grove police department, and Agent Charles Dvorak of Du Page Metropolitan Enforcement Group , testified to the events leading to defendant's arrest.
Agent Dvorak testified that on November 12, 1986, at about 4:30 p.m., he was at the Downers Grove police department where he interviewed Kevin Vondersmith, who had been arrested earlier that day on a charge of delivery of a controlled substance, cocaine. Vondersmith told Dvorak that defendant was the source of his cocaine and that he had purchased cocaine from defendant about 50 times. Vondersmith explained the normal routine he went through to purchase cocaine from defendant. He would contact defendant on a telephone pager and enter an identification code number, the number of the pay phone from which he was calling, and a digit indicating the amount of cocaine he wanted to buy. Dvorak asked Vondersmith to try to arrange a purchase that evening, and Vondersmith suggested calling from a doughnut shop as he had called defendant from that phone in the past.
Dvorak and another agent, Agent Sullivan, took Vondersmith to the doughnut shop, where Vondersmith dialed the pager number and identification number. Approximately 15 to 20 minutes later the phone rang; Vondersmith answered it and had a conversation. Vondersmith hung up and told Dvorak that defendant had agreed to deliver cocaine to him at the Just Games arcade not far from the doughnut shop.
Surveillance agents were informed of the new location, and Dvorak, Sullivan and Vondersmith went to the arcade. When defendant had not arrived within half an hour, Dvorak took Vondersmith to a pay phone at the gas station next to the arcade where Vondersmith made another call to the pager. As they returned to the arcade, Dvorak saw a red or orange Pontiac pull into the gas station. He recognized defendant in the front passenger seat and the female driver, defendant's girlfriend. Dvorak and Vondersmith continued into the arcade. The driver came into the arcade, approached Vondersmith and had a short conversation with him. Vondersmith left the arcade and went to the car while defendant's girlfriend played the video game Vondersmith had been playing. Vondersmith went to the passenger side of the Pontiac and appeared to have a short conversation with defendant. Vondersmith then walked away from the car, and defendant got out and began to pump gas. Defendant's girlfriend then left the arcade, and as she and Vondersmith passed each other in the parking lot, they both extended their left hands and made contact. Dvorak believed an item had been passed, but he could not tell what it was. At that time, defendant started to run around the back of the car, slipped to one knee, and got up and went to the passenger side of the car. Believing that a transaction had occurred, the surveillance team moved in and arrested defendant, his girlfriend, and Vondersmith.
Vondersmith was searched at the police station, and it was found that he still had the money the agents had given him to make the buy. He did not have any controlled substances. Defendant was also searched, and the agents discovered 3.3 grams of cocaine, the amount Vondersmith had arranged to purchase, in the crotch of defendant's underwear. A telephone pager was also recovered from defendant.
Officer Schwabe also described the events leading to defendant's arrest. He had observed Vondersmith sell cocaine the night before and had arrested Vondersmith. Schwabe interviewed Vondersmith, told him he believed defendant was his source, and asked him to set up a buy. Vondersmith agreed, and Schwabe contacted Agent Dvorak. Dvorak came to interview Vondersmith, and Dvorak told Schwabe a buy would be made from defendant. Schwabe saw Dvorak, Sullivan and Vondersmith go to the doughnut shop and then to Just Games. Schwabe set up surveillance about 50 yards from Just Games. Schwabe's description of the events at the arcade was similar to Dvorak's. He saw Vondersmith walk to the passenger side of the car, speak briefly to the passenger, and walk away towards the gas station. Schwabe then saw defendant's girlfriend walk past Vondersmith towards the car. Their hands extended and an item was passed. Defendant, who was pumping gas, made a quick motion towards the passenger side of the car. Schwabe believed a drug transaction had occurred at that time and radioed the other units to move in and make the arrests.
Dvorak and Schwabe gave similar testimony at trial. In addition, Vondersmith testified to his role in the transaction. He described for the jury his purchase from defendant on the night of his own arrest and how he again contacted defendant at the request of Dvorak and Schwabe. A chemist testified that she had tested the substance recovered from defendant and that it contained cocaine. Defendant's girlfriend testified that she, defendant and Vondersmith met to go to a party.
Defendant first argues that the trial court erred in denying his motion for a mistrial where, on cross-examination, Dvorak testified to defendant's post-arrest silence after receipt of Miranda warnings. At trial, Dvorak testified that he recovered the telephone pager from defendant after the arrest. Dvorak also described how a pager functions and gave examples of persons who carry pagers for ...