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09/05/89 the People of the State of v. Jonathan Penny

September 5, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

JONATHAN PENNY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

544 N.E.2d 1015, 188 Ill. App. 3d 499, 136 Ill. Dec. 240 1989.IL.1375

Appeal from the Circuit Court of Cook County; the Hon. Ronald A. Himel, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Defendant, Jonathan Penny, was charged by information with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2).) Defendant filed a motion to quash his arrest and to suppress evidence seized at the time of his arrest, alleging that the arresting officers did not have probable cause to believe the package they had seized from defendant's car contained a controlled substance. The trial court granted defendant's motion and the State appeals (107 Ill. 2d R. 604(a)(1)). For the following reasons, we affirm the trial court's judgment.

The record indicates that on November 23, 1987, approximately 11:30 p.m., Chicago police officers James Jones and Ellis Peal observed that defendant's car had an expired license plate sticker and signalled to defendant to pull over to the side of the road. Defendant pulled off to the side, exited the car and walked toward the rear where he met the officers, who were walking toward him. Officer Peal informed defendant that they had stopped him because his license plate sticker was expired and asked to see his driver's license. Jones testified that defendant's hands were shaking as he took out his license.

While Officer Peal was talking to defendant, Officer Jones walked up to the driver's side of defendant's car and looked inside. He saw a package, approximately seven inches in diameter and four inches thick, wrapped in a brown opaque plastic material on the floor. Jones signalled to Peal that he saw something inside the car. When Peal asked defendant what was in the package, defendant claimed that he did not know because the car was not his. At that point, Officer Jones opened the door and took out the package. At the hearing, Jones described the package as looking "like a kilo of cocaine" and feeling "like a brick." When Jones poked a hole in the top of the package with a knife, he saw that it contained white powder which later proved to be cocaine. As a result, defendant was arrested.

Subsequently, defendant filed a motion to quash his arrest and to suppress evidence, alleging that he was arrested and his automobile was searched without probable cause. Following Officer Jones' testimony at the suppression hearing, the trial court granted defendant's motion, stating that the suspicions of an officer that a package contained cocaine were not enough to constitute probable cause, and further adding:

"Certainly, [the officers] had a right to detain this young man for the purposes of issuing a uniform citation for the failure to have the license plate up to date. He did produce a valid driver's license. Based on the testimony the officer then stood in a place where he had a right to be, observed something that was suspicious.

Now the cross examination or the direct examination of that officer indicated . . . that there was no powdery substance, no crushed green plant, there was no pill form, it was simply a package he could not see in. He believed based on his experience that probably it contained a controlled substance.

I am sure that it could possibly have contained a thousand other items that are legitimately used and packed in similar wrappings.

. . . hey were really checking out their suspicions, they had nothing more than mere suspicion, they had a traffic violator and nothing more."

Predicated on Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535, the State filed a motion to reconsider. The trial court found Texas v. Brown unpersuasive and held that under the totality of circumstances, including the pivotal finding that it was not immediately apparent that the package found in defendant's automobile contained narcotics, the ...


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