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10/26/88 the People of the State of v. Gary Scudder

October 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY SCUDDER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 533, 175 Ill. App. 3d 798, 125 Ill. Dec. 375 1988.IL.1579

Appeal from the Circuit Court of Lee County; the Hon. Martin D. Hill, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Defendant, Gary Scudder, was convicted in the circuit court of Lee County of possession of instruments adapted for use of controlled substances or cannabis by subcutaneous injection (Ill. Rev. Stat. 1987, ch. 38, par. 22-50) and sentenced to a 120-day term of periodic imprisonment. On appeal, defendant contends that a search of his car following his arrest was illegal because the police deliberately refrained from arresting defendant until he was in his car. We reverse and remand.

The trial court denied defendant's pretrial motion to suppress hypodermic needles and syringes found in his car subsequent to his arrest on January 22, 1986. At trial, David Fischer testified that he was driving down College Street in Dixon with his wife at about 11 a.m. on the morning of January 22. Defendant's car ran a stop sign and stopped several feet into the intersection of College and Fourth Streets. Defendant and Fischer both exited from their cars after pulling over. Defendant punched Fischer, breaking his nose.

Another man then went up to defendant and spoke to him for about a minute. Defendant then left and went to a nearby alley. Fischer followed him on foot. When the prosecuting attorney asked what happened next, Fischer responded as follows:

"Well, I saw him putting something -- well, not putting. I saw him messing around with a muffler that was beside the road and then head back in this direction."

Fischer then stated that he assumed defendant was hiding something. Fischer found a plastic bag near the muffler. He suspected that the bag contained drugs and took it to Lieutenant Hagen of the Dixon police department.

On cross-examination, defendant's attorney asked if Fischer saw defendant put anything under the muffler. Fischer responded "Mhm." He then stated that the object placed under the muffler was shiny and looked like a plastic bag.

Lieutenant Larry Hagen testified that the plastic bag which David Fischer turned over to him on January 22, 1986, contained four syringes, a spoon, and some paper towels. Hagen later instructed Detective Harry Ulferts to arrest defendant. On cross-examination, Hagen stated that he did not spend much time with Fischer on January 22 because Hagen was about to go out of town for a few hours. Hagen returned to the police station later that day and signed a complaint against defendant in the late afternoon or early evening.

Hagen further testified that defendant appeared at the Dixon police station on January 22 before he was taken into custody by Detective Ulferts. This occurred after Hagen returned from his brief trip out of town. When defendant's attorney asked if defendant inquired at this time as to whether there was a complaint out for his arrest, Hagen said, "That sounds familiar." Hagen testified that he was not sure whether he talked to defendant at this time. Hagen had told other individuals at the police station that he intended to sign a complaint against defendant. Neither Hagen nor anyone else at the station told defendant that a complaint was being prepared against him. Hagen testified that he thought Detective Ulferts was at the station when he told Ulferts to go out and arrest defendant.

Detective Ulferts testified that Lieutenant Hagen made the above request by radio. Ulferts then stopped defendant's car, which pulled into a gas station. Ulferts arrested defendant and searched the car. He found two hypodermic needles and some syringes under the driver's seat. The ...


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