APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
531 N.E.2d 867, 176 Ill. App. 3d 823, 126 Ill. Dec. 240 1988.IL.1650
Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. BILANDIC and EGAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a jury trial, defendant was convicted of unlawful possession of a controlled substance, sentenced to a term of 18 months in the Illinois Department of Corrections, and was fined $450. He appeals, raising the following issues: (1) whether the trial court erred in denying his motion to suppress evidence and in denying his motion for a rehearing on the motion to suppress evidence; (2) whether he was denied his right to effective assistance of counsel; and (3) whether he was proved guilty beyond a reasonable doubt.
Defendant was arrested on April 11, 1985, and charged with possession of a controlled substance with intent to deliver, to wit, less than 10 grams of heroin. At the preliminary hearing on July 25, 1985, the Judge heard defendant's motion to suppress evidence. Officer Michael Pease, the only witness to testify, did so as follows.
On April 11, 1985, he was investigating two recent homicides in the vicinity of 1831 N. Humboldt in Chicago. Pease, along with his partner, Officer Gabriel, was attempting to interview people in the building when, standing in the second-floor hallway outside an apartment immediately to the right of the stairway leading from the third floor, he overheard voices. Pease heard a voice, later identified as that of defendant, say "he would only pay $270 for five grahams [ sic ]," then say "okay, okay, I will go $300 for the five grahams [ sic ] of heroin." After hearing this Pease and Gabriel moved to the rear of the hallway and secreted themselves in a doorway leading to an apartment. Defendant then came out of the apartment from which the voices had emanated, went down the stairs and out to a car parked in front of the building. As the officers approached the car they saw defendant hand a plastic or cellophane-type bag through the window to co-defendant Bean, who put the bag in the front of her pants. The police ordered both defendant and Bean out of the car and handcuffed them. Pease conducted a protective pat down search of defendant but not of Bean, because of her gender. He then placed them in the back of the squad car and drove to the police station. While driving, Pease saw defendant, with his hands handcuffed behind his back, grab the bag from Bean.
At this point in the testimony defense counsel objected:
"DEFENSE COUNSEL: I respectfully object at this point because I think we are going passed [ sic ] the point where my motion was stopped. Now the defendants are in custody.
THE COURT: That's correct."
Under questioning by defense counsel Pease admitted that he did not go into the apartment where he heard voices, he did not know if there were drugs in that apartment, and he had not seen any drugs on either defendant or Bean at the time he took them into custody.
The Judge denied defendant's motion, stating:
"This is certainly sufficient under the totality of the circumstances enumerated by the Supreme Court for him to do a further investigation, which he did. I don't believe that Officer Pease in any way ...