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May 11, 1994


Appeal from the Circuit Court of Lake County. No. 92-CF-1763. Honorable Victoria A. Rossetti, Judge, Presiding.

As Corrected May 17,1994. Released for Publication June 15, 1994. Second Correction December 28, 1994.

Colwell, Quetsch, PECCARELLI

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Robert Merriweather, was charged by indictment with the offense of unlawful possession of less than 15 grams of cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS570/402(c) (West 1992))). Defendant was found guilty during a bench trial with a stipulation as to the evidence. The trial court sentenced defendant to a term of 18 months' probation. Defendant appeals, contending that the trial court erred in denying his motion to suppress evidence obtained from a search of defendant during the execution of a search warrant. We reverse.

Defendant was arrested on the evening of July 14, 1992, while several officers from the Waukegan police department were executing a search warrant for an apartment on the second floor of 842 Adams Street. Defendant was not named in the warrant. Defendant was charged by indictment with the offense of unlawful possession of less than 15 grams of cocaine. He later filed a motion to quash his arrest and suppress the evidence. The trial court heard evidence on defendant's motion on November 6, 1992.

Officer Michael Szuchnicki testified that he was one of several officers executing the search warrant for the second floor apartment at 842 Adams Street. He believed the target for the warrant may have been a black female. When the officers arrived to execute the warrant, some went to the front of the building and some went up a rear stairwell. Szuchnicki said he was stationed at street level at the rear of the building. He explained that the rear of the building had an enclosed stairway with a door that could be accessed from the street level. This stairway led to a first-floor landing where there was another door to the first-floor apartment. The stairway then continued up to the second floor so that one could also access the second-floor apartment from the stairway. Szuchnicki said that the enclosed stairway cannot be viewed from the outside.

Szuchnicki testified that some of the officers had already gone up the rear stairway towards the second-floor apartment when Szuchnicki saw defendant exit the street-level door of the rear stairway. Defendant was not armed and made no threatening gestures, nor did he shout a warning to the tenants. Szuchnicki said he pointed his gun at defendant and ordered him to raise his hands and get up against the wall. Szuchnicki said he stopped defendant because defendant had exited the building while the warrant was being executed and Szuchnicki wanted to pat down defendant to determine whether he might be leaving with some contraband. Szuchnicki said he also wanted to ensure his own safety by frisking defendant for weapons.

Szuchnicki said that defendant willingly complied with his orders. Defendant then informed the officer that he was "holding." Szuchnicki asked defendant what he meant and defendant said he had rock cocaine in his pocket. Defendant then reached into his pocket and produced two packets of cocaine, a small pipe, and a lighter. Szuchnicki testified that he told defendant he was under arrest and had defendant handcuffed and placed on the ground outside the building. Szuchnicki said defendant had informed the officer that he did not live in the building.

Defendant testified that he had been inside the first-floor apartment on the evening of July 14 with James Diggs and a woman named Mary whose last name defendant could not recall. Defendant said that Mary had made dinner and the three were seated at the kitchen table. Defendant testified that the door leading to the rear stairway was to his right. Defendant said he saw some people running in the backyard and went to the rear door to see what was happening. Defendant said that when he stepped onto the first-floor landing of the enclosed porch, a police officer put a gun to his face and someone called from upstairs telling the officer to take defendant outside.

Defendant said he was then ordered to lie on the ground with other people also detained at the scene. The officers frisked all of them and took defendant to another area. As one of the officers prepared to search defendant again, defendant said he volunteered that he had some cocaine in his pocket which he then surrendered to the officer.

James Diggs testified that he was in the first-floor apartment with defendant and a woman named Mary on the evening in question. As they sat down to the kitchen table to eat, Diggs saw defendant watching something in the backyard. Diggs said defendant moved to the back door of the apartment. When defendant took a step outside the door, a police officer put a gun to his head and another officer ordered that defendant be taken outside. Diggs said he quickly moved back into the kitchen. Diggs admitted that he was on probation for burglary and was also in custody at the time of the suppress ion hearing on a pending charge of unlawful possession of a stolen motor vehicle.

The trial court denied defendant's motion to quash and suppress evidence. The trial court noted that Szuchnicki testified that he did not pat down defendant until after defendant volunteered that he was "holding," whereas defendant said he was brought out and immediately laid on the ground and patted down with the other people. The trial court concluded that "in looking at the statute and the case law, in either scenario, I think the officers were justified in doing what they did for the protection of themselves and that the defendant voluntarily gave over to the officers what was in his pocket. So therefore the motion is denied."

Defendant waived his right to a jury trial and proceeded to a stipulated bench trial. Defendant stipulated to the testimony given during the hearing on his motion to suppress. He preserved his objections to the admission of the drugs retrieved from his pocket and to any statements defendant gave indicating that he was "holding" on the ground that such evidence was the fruit of the ...

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