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05/15/89 the People of the State of v. Richard Hicks

May 15, 1989





539 N.E.2d 756, 183 Ill. App. 3d 636, 132 Ill. Dec. 193 1989.IL.732

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Durkin, Judge, presiding.


JUSTICE QUINLAN* delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.


Defendant, Richard Hicks, was arrested and charged by information with possession of a controlled substance, cocaine, with intent to deliver. (See Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402.) Prior to his trial in the circuit court of Cook County, the defendant filed a motion to suppress the evidence seized at the time of his arrest. The trial court denied defendant's motion, and his case then proceeded to trial before a jury. The jury found defendant guilty, and the trial court sentenced him to eight years in the Illinois Department of Corrections. Defendant then appealed his conviction and sentence to this court.

On January 23, 1987, the trial court held a hearing on defendant's motion to suppress evidence and to quash his arrest. The defendant called Detective Thomas Kinsella to testify at that hearing. Kinsella was a Chicago police officer for 23 years and worked in the narcotics division for 15 years. At the time of defendant's arrest, Kinsella was working in the Chicago police department's drug enforcement administration task force at O'Hare Airport and had been working this detail for seven years. Kinsella's job was to monitor airline flights which originated in source cities and observe the demeanor of the deplaning passengers, their physical descriptions, their clothing, their actions, and their manner of leaving the airport.

Kinsella described the defendant's arrest and the events preceding it. He said he first saw the defendant when the defendant exited a plane at O'Hare Airport at approximately 8:15 p.m. on July 16, 1986, from a flight that had originated in Orlando, Florida, a source city for narcotics. Kinsella noticed that defendant carried two new suitcases, was wearing a number of gold bracelets and rings, and had on a new T-shirt, new shorts and a pair of high-top gym shoes without socks. The defendant began walking in the direction of the baggage claim area, but looked back over his shoulder at least two times and then stopped and entered the men's room.

Kinsella discussed the defendant's behavior with another narcotics agent, Al Fulkerson, and, following this Discussion, Kinsella decided to follow the defendant. When the defendant left the men's room, he continued to walk toward the baggage claim area but again looked back over his shoulder. When defendant began walking away from the baggage claim area without retrieving any luggage, Kinsella and Agent Joe Gorzkowski walked up alongside the defendant. When Kinsella spoke to the defendant, Gorzkowski merely stood nearby. Kinsella identified himself as a police officer and asked defendant if he could speak with him. The defendant said "Sure" and stopped walking. Kinsella asked the defendant for some identification and for a copy of his airline ticket. The defendant said he had no identification but gave Kinsella a payment receipt for a traffic ticket. This receipt, however, did not have a name or date on it. The defendant's plane ticket was a one-way ticket from Orlando to Chicago and had been paid for that same day in cash. The defendant told Kinsella that he was unemployed and lived at 660 West Division, which Kinsella knew to be a building in the Cabrini-Green housing project. Hicks also said that he had driven down to Florida with a friend for one day and had flown back. Up to this point, Kinsella had not told the defendant why he was being questioned.

Immediately after this conversation, Kinsella advised the defendant that they were conducting a narcotics investigation, but Kinsella did not tell the defendant that he was under arrest and instead told the defendant that he was free to leave if he wanted to do so. Kinsella next asked Hicks if he would consent to a search of the two bags he was carrying and also told the defendant that he did not have to consent to the search. The defendant responded, "Yes -- go ahead."

The search of the defendant's luggage was conducted near the baggage claim area, which was not isolated or removed from the public area of the airport. In the first bag, Kinsella found a small brown glass vial with a spoon attached to the cap. Kinsella knew that vials such as this were commonly used to carry approximately one gram of cocaine. The spoon on the cap of the vial was used to snort the cocaine. Kinsella asked the defendant if he had anything to go with the vial and the defendant replied no.

Kinsella then began to search the second bag. At this point, the defendant became nervous and took several steps backward. Inside the bag was a gift-wrapped package. When Kinsella removed the package from the bag, the defendant exclaimed, "I don't know what is in the package, I have never seen that package, that didn't come out of my suitcase." Kinsella told the defendant that he was going to open the package very carefully and would then rewrap it. The defendant did not respond. As Kinsella did so, he found a taped package inside the wrapped package. Kinsella said that the manner in which this package was taped was similar to other packages he had seized which were found to contain a kilo quantity of cocaine. Kinsella stuck his knife into the taped package and saw white powder, which he believed to be cocaine. At this point, the defendant was arrested. It was later determined that the package in fact contained a kilo of cocaine. Kinsella said that he was wearing plain clothes at the time of the defendant's arrest and never displayed his weapon, raised his voice or blocked defendant's movement.

The defendant also called Officer Joseph Gorzkowski to testify. Gorzkowski was with Kinsella when the defendant was arrested and, at that time, had been a Chicago police officer for 9 1/2 years. Gorzkowski's testimony corroborated Kinsella's testimony concerning the arrest of the defendant and the events surrounding the arrest.

The defendant then testified in his own behalf. The defendant's account of his arrest and the events preceding it differed from Kinsella's version. The defendant said that he was arrested on July 16, 1986, at O'Hare Airport. The defendant stated that a man came up to him and asked to talk with him after he arrived in Chicago from Orlando, Florida, and told him that he was a police officer. The defendant identified the officer that came up to talk to him as Gorzkowski, and the officer who remained silent as Kinsella. The defendant stopped to talk to the officer because he "knew there was nothing [he] could do but stop." Hicks said that Gorzkowski asked him his name and whether he was a "citizen" of Chicago, to which Hicks replied that he was a citizen and gave his name. Hicks said that Gorzkowski did not ask him any more questions and that Gorzkowski and Kinsella then made him step behind a screen, in an isolated area. When the officer asked to search defendant's bags, defendant testified that he again said nothing because, Hicks said, there was nothing he could say. The defendant further testified that the officers did not take anything ...

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