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June 27, 1994


Appeal from the Circuit Court of Cook County. The Honorable Vincent Bentivenga, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Manning, Campbell, O'connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Defendant Nicholas Madison was convicted by a jury for possession of a controlled substance with intent to deliver. He was sentenced to 10 years in the Illinois Department of Corrections.

The defendant raised the following issues on appeal: (1) Whether the trial court erred in denying defendant's motion to quash arrest and suppress evidence because there was not probable cause to detain the defendant or search his vehicle; (2) Whether the use of demonstrative evidence where the real physical evidence has been destroyed is reversible error when the alleged offense is possession; and (3) Whether the trial court erred in denying the defendant's motion to dismiss based on the destruction of evidence by the State. For the reasons which follow we reverse and remand.

On August 23, 1988, defendant filed a motion to quash arrest and suppress evidence based upon grounds that his arrest violated his Fourth Amendment Constitutional rights. On May 5, 1989, following a hearing the circuit court denied defendant's motion to quash arrest and suppress evidence.

At the hearing on defendant's motion to quash arrest and suppress evidence, Chicago Police Officer Robert Coyle testified that he and Offier Daniel Judge were in a marked squad car, on routine patrol, driving down an alley in the 400 block of East 115th Street, on January 15, 1988, at approximately 2:00 a.m. They were driving at about 10 miles per hour with their headlights on. Defendant was spotted standing twenty feet away from them in a parking lot abutting an apartment building. The defendant was standing in front of a 1975 Chevrolet Monte Carlo with the hood raised. The officers had nowarrant to arrest or search his vehicle. Defendant was observed holding a large clear plastic bag in front of his chest and the bag contained several brown chunks which varied between "golf ball and small baseball size" and it appeared to be heroin. The defendant looked in their direction, quickly "stashed" the bag under the hood, and immediately slammed the hood down. They exited their vehicle and approached the defendant, who did not attempt to flee. Judge walked to the front of the vehicle while Coyle entered the vehicle to release the hood. Judge stated that upon lifting the hood he recovered the plastic bag that he observed the defendant throw inside the hood of the car. After examining the substance and determining based upon their experience as police officers that the substance recovered was Mexican brown heroin, defendant was then taken to the 5th District Police Station and charged. The recovered property was inventoried and sent to the crime laboratory.

At the hearing on the motion to quash arrest and suppress evidence Officer Judge testified to substantially the same facts as Coyle. In addition, Judge testified that he recognized the accused as a local narcotics dealer because two of his fellow officers had pointed him out "on the street." The arrest report stated that the defendant was "arrested for possession of controlled substances after the arresting officers observed above subject a known narcotics dealer standing by his auto." The trial court found that the officers conducted no actual search in that the defendant held the heroin in plain view of the officers. The court denied the defendant's motion to quash the arrest and suppress the evidence.

On February 5, 1992, shortly prior to the trial, the defendant filed a motion in limine to preclude the State at trial from referring to the defendant as a known narcotics dealer or known drug dealer, by eliciting from or having any of their witnesses, on direct or cross, testify to this information. This motion was granted.

On that same date, February 5, 1992, defense counsel made a motion to produce evidence and to view and test the evidence with the aid of an expert. On that day the defendant discovered that the alleged heroin no longer existed, having been destroyed on April 4, 1991. This fact was known by the State at least in January, 1992, but counsel for defendant had not been notified. The trial court noted that the defense counsel was entitled to inspection of something only if it existed, but the evidence was no longer in existence.

The next day, on February 6, 1992, defendant filed a motion to dismiss on grounds that the State failed to allow inspection of the suspect heroin in violation of discovery rules. In his motion to dismiss, defendant asserted discovery violations for failure to produce theheroin and two beepers for inspection. All items had been destroyed. The court explained that the defendant had gained a major advantage because the police department destroyed the exhibits. The defense counsel expressed concerns about jeopardy caused by the destruction of the exhibits and the need for the jury to see the size, nature and packaging of the items. In response the court suggested, "One way might be to suggest a sample of sugar and salt or something that would weigh the same size." Defendant's motion to dismiss was denied.

On February 25, 1992, defendant filed a motion in limine to bar the State from using the brown sugar exhibit as demonstrative evidence. The court denied defendant's motion reasoning that, "they destroyed their own evidence of their own free will and the jury can interpret the evidence."

At trial, on February 25, 1992, Officers Coyle and Judge's testimony were substantially the same as at the hearing on the motion to quash arrest and suppress. In addition, Judge testified that he retrieved the suspect heroin from the hood of the car and handed it to Coyle. Judge demonstrated to the jury how the defendant held the suspect heroin chest high, dropped it in the hood and slammed the hood shut as the officers approached. Judge testified that the exhibits were "more chunky" than the suspect heroin and the plastic bags in the exhibits had zippers while the original exhibits did not have zippers.

Coyle testified that the narcotics never left his sight after he received them from Judge. Coyle also demonstrated to the jury how defendant held the bag in front of his chest. Coyle testified that the exhibit was basically that same as what he saw defendant holding on the date in question.

Nicholas McNamara, a forensic chemist in the crime laboratory, testified that on January 19, 1988, he received and inventoried one clear plastic bag containing three separate bags of a brown-like substance. McNamara testified that he weighed each individual package and determined that the total weight of the brown powder in the three bags was 1501 grams, or 3.3 pounds. He also performed an infrared analysis and found each of the three packages contained heroin. After placing the date and his name on each bag, McNamara repackaged the evidence to appear in the same way he received it. He then sent the sealed bags to the Evidence and Recovered Property Section of the Chicago Police Department (ERPS).

Joseph Shields, commanding officer of ERPS, testified that on January 27, 1988, he received the heroin, inventoried it and placed it in his personal safe that same day. Shields testified that evidence isautomatically disposed of after three years, unless ERPS is notified in writing or by a supervisor to retain it. Shields stated that, on March 6, 1988, ERPS received a tracer signed by the arresting officer, dated March 6, 1988, stating that he wanted this property held. However, the property was destroyed in violation of established procedures. The narcotics were destroyed in a burn down which routinely occurred approximately four to six times a year, depending on the amount of items to be disposed of and the availability of personnel. They are burned because of space limitations. On April 4, 1991, Officer Shields testified that he opened the safe, checked the seals and the seals were intact. He put his number, name, and star number directly on the inventory form, as he was removing the items from the safe. He then hand carried the narcotics out to the incinerator and placed them in the incinerator. The State's response to the defendant's motion was that it should have been timely made and that at trial there would be a laboratory report and testimony about the lost evidence.

Chicago Police Officer Truman Royster testified that in 1988, he worked undercover for the Street Narcotic Impact Program. He testified that at that time 1500 grams of heroin was worth $120,000, an amount unlikely to be for someone's personal use. Royster explained that such a quantity would normally be possessed by a distributor, supplier or dealer of narcotics. The officer also stated that he had previously recovered beepers from those arrested for selling heroin. The jury convicted defendant of possession of a controlled substance with intent to deliver.

The first issue is whether the trial court erred in denying defendant's motion to quash arrest and suppress evidence based upon a lack of probable cause. Warrantless arrests, such as the one in the instant case, cannot be sustained without the existence of reasonable grounds for a police officer to believe that the person has or is committing a crime. (See People v. Holveck (1990), 141 Ill. 2d 84, 565 N.E.2d 919, 152 Ill. Dec. 237.) Reasonable grounds is synonymous with probable cause. ( People v. Holveck, 141 Ill. 2d 84, 95, 152 Ill. Dec. 237, 565 N.E.2d 919; People v. Jones (1990), 196 Ill. App. 3d 937, 554 N.E.2d 516, 143 Ill. Dec. 581.) To determine whether there is probable cause to arrest, officers need not possess evidence sufficient to convict, but must only have knowledge of ...

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