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March 29, 1994


Appeal from the Circuit Court of Cook County. Honorable Jack Stein, Judge Presiding.

DiVito, Hartman, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Defendant Destan Celiku was charged with delivery of a controlled substance and with possession of a controlled substance with intent to deliver. Following an evidentiary hearing, defendant's motion to suppress evidence was granted by the circuit court. The State appeals from that order.

At the hearing, Chicago police officer Don Eichler, called by defendant, testified that he arrested defendant on March 21, 1990, at about 10:45 a.m. He had neither a search warrant nor an arrest warrant for defendant who was standing outside of a building at 534 Wellington. When the officer approached defendant, he spoke to him in English, and defendant answered in a foreign language.

On cross-examination Eichler testified that he and Officer Gates, who were in plainclothes, were patrolling the area because several burglaries previously had been reported. As a matter of fact, other officers were on surveillance in the area. Defendant "was walking along the property line up and down the alley" behind 534 Wellington. Eichler noticed that the rear door to the building at that address was open six to eight inches and had pry marks on it "around the lock and knob." Eichler and Gates left their car to talk to defendant.

As the officers began conversing with defendant, a second man came out of the underground parking garage of the same building and started walking toward them carrying a purple gym bag. Defendant yelled something to the man in a foreign language which Eichler could not understand. The other man then "turned and began to go back into the garage," but when Eichler asked him to stop, he threw the gym bag under one of the cars in the garage and began to run out the front entrance of the garage. He was arrested and Eichler looked inside of the bag and saw two large plastic bags of a whiterock substance believed to be cocaine; a triple beam scale, commonly used to weigh cocaine; and "pyramid papers," used for packaging cocaine.

After the other man was arrested and the contents of the gym bag were observed, Eichler went back to defendant who was searched and on whom more cocaine was found.

On redirect examination Eichler testified that defendant was not in possession of any burglary tools when he saw him in the alley, and defendant was never in possession of the purple gym bag. The court found that there was no probable cause on which to base the search of defendant.

Probable cause to arrest exists when the totality of the facts and circumstances known to the officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. ( Dunaway v. New York (1979), 442 U.S. 200, 208, 60 L. Ed. 2d 824, 833, 99 S. Ct. 2248, 2254.) Whether probable cause is present is governed by common-sense considerations ( Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310), and the calculations concern the probability of criminal activity rather than proof beyond a reasonable doubt. People v. Tisler (1984), 103 Ill. 2d 226, 236, 469 N.E.2d 147, 82 Ill. Dec. 613.

Here, the prior knowledge and observations of the police officers provided a reasonable inference of criminal involvement based upon specific and articulable facts to support an investigatory stop ( People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537, 12 Ill. Dec. 733) and even a Terry search of defendant ( Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.Ct. 1868). If such a search had resulted in the detection of the cocaine through touch, the seizure of the cocaine and the arrest of defendant would have been justified ( Minnesota v. Dickerson (1993), U.S. , 124 L. Ed. 2d 334, 113 S.Ct. 2130). But the events that occurred immediately after police confronted defendant justified much more than a Terry intrusion. During this time, the other man had emerged from the underground parking garage of the building carrying a gym bag; he had turned and started to walk away when defendant yelled at him in a foreign language; and, when the officer told him to stop, he threw the bag under a car and ran. This conduct alone, combined with the previous knowledge and observations of the officers, would have justified a belief in any reasonably prudent person under Dunaway, that defendant was involved in the commission of the offense of burglary. In applying common-sense considerations (Brinegar), the officers could conclude that criminal activity was probable (Tisler).

Nevertheless, the uncontradicted evidence was that even then the officers did nothing more with defendant until the gym bag was retrieved and it was found to contain suspected cocaine and paraphernalia related to cocaine. At that point, regardless of any possible innocent explanation, the officers were justified in concluding that defendant had voiced a warning of police presence to the other man and that the two men were acting in concert, perhaps in relation to a burglary, certainly in regard to some drug offense. The criteria for probable cause were abundantly present; arrest and search at that point were plainly justified. Indeed, any alternative action by police under such circumstances might raise the specter of malfeasance.

We conclude that the suppression order in this case was against the manifest weight of the evidence, and we therefore reverse the order of the circuit court and ...

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