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July 20, 1994


Appeal from the Circuit Court of Du Page County. No. 91-CF-2881. Honorable Edward W. Kowal, Judge, Presiding.

Released for Publication September 1, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Bowman, Doyle, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Keith Martini, was found guilty by a jury of one countof unlawful delivery of a controlled substance in violation of section 401(a)(7)(D) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(7)(D) (now 720 ILCS 570/401(a)(7)(D) (West 1992))) in the form of more than 1,500 objects or segregated parts of an object containing lysergic acid diethylamide (LSD). The defendant was sentenced to serve a term of 20 years and fined $5,000. On appeal, defendant raises three issues, although we only address one in this published opinion: defendant challenges the constitutionality of the issuance and execution of an "anticipatory" search warrant on the basis that there was a violation of his right against unreasonable searches and seizures and his right to privacy under the Illinois and the United States Constitutions. We affirm.

The following facts emerged from testimony at trial and the complaint for a search warrant. Officer John Bright was assigned to the Du Page Metropolitan Enforcement Group (DuMEG). Bright was introduced to Michael Adams at a McDonald's restaurant in Villa Park, and purchased drugs from him in an undercover capacity in November 1991. Bright also dealt with Adams' friend, John Okkema. One transaction that occurred between Bright, Adams, and Okkema was on December 5, 1991, for 300 doses of LSD. The drug was delivered in the form of a sheet of perforated blotter paper consisting of numerous squares impregnated with the drug. Each three-eighth-inch square, with a print of an "Egyptian" eyeball on it, was one dose.

Bright next negotiated with Adams for the purchase of 50 sheets, or 5,000 doses of LSD, but Adams told Bright he would have to check with his source about it. When Adams told Bright that he would only be able to obtain 27 sheets from his source, Bright stated that he wanted to purchase all 27 sheets. At about 4 p.m. on December 11, 1991, Bright spoke with Adams on the phone and arranged to meet him that evening at a McDonald's restaurant. Around 7:45 p.m. that evening in the parking lot of McDonald's, Adams entered Bright's pickup truck. Adams had delivered to Bright the first delivery of the 27-sheet transaction. The delivery consisted of a plastic bag containing 1,000 doses of LSD on perforated paper, and Bright paid Adams $1,500 in cash. Adams exited the truck and went to Okkema's car. Bright also left the truck and went back to Officer O'Brien's vehicle, which was parked in the McDonald's lot. Each officer then performed a field test on one of the segments of LSD-impregnated paper that Adams had delivered to Bright. Both field tests were positive. O'Brien took the 998 remaining doses of LSD and Bright returned to his truck, taking $2,500 in cash.

Adams and Okkema joined Bright in his truck, and it was agreedthat they would take Bright to the general area of their source to obtain the rest of the LSD. To that end, the three men drove to the vicinity of 315 Princeton Street, Villa Park, where they were observed by DuMEG surveillance agent Robert Swartz. Okkema asked Bright for additional money for the 1,700 doses that he was to acquire from the source. Bright refused to give him the money, so Okkema took the $1,500 Bright had given Adams for the initial 1,000 units, and exited the vehicle. Okkema entered apartment nine at the Princeton address. Within four minutes, Okkema returned to Bright's truck and handed Adams a manila envelope. Okkema stated that "Keith" had trusted him with the 17 sheets of LSD remaining in Keith's possession. The men drove back to McDonald's, where Adams handed Bright the LSD-impregnated paper, and Bright counted the sheets to be sure there were 1,700 units. Bright then removed the $2,500 from his pocket and at the same time tripped an electronic device to advise surveillance agents that the transaction was complete and that the arrest should take place. Altogether, Bright had purchased a total of 21.89 grams of LSD-impregnated blotter paper that night.

Both Adams and Okkema were arrested. At trial, on cross-examination, Bright admitted that neither Adams nor Okkema had been searched to see if they had drugs on them before Okkema went into the building at 315 Princeton, Villa Park. In addition, all of the quantities of LSD at issue could have easily fit into a person's pocket.

DuMEG agent Steven Dahl had been assigned to watch the apartment building located at 315 Princeton. The evening of the December 11, 1991, transaction, after Okkema, Adams, and Bright left the Princeton address to return to McDonald's, Dahl received Bright's signal and proceeded to execute the "anticipatory" search warrant at 315 Princeton. Dahl testified that another 76 doses of LSD were seized pursuant to the warrant as well as $1,450 in cash, 1 baggie of dried mushrooms, 7 baggies of cannabis, 1 film container of cannabis seeds, several pipes, and some ashtrays.

Dahl arrested the defendant and subsequently interviewed him. According to Dahl, defendant said that he had purchased 50 sheets of LSD in Minnesota and that the $1,450 found under a rug in the apartment was from tonight's deal. Dahl admitted on cross-examination that he did not know what happened in the apartment between Okkema and the defendant, and that it was possible that Okkema had the drugs in his possession at all times on December 11, 1991.

Defendant testified that he lived at 315 Princeton, apartment nine, in December 1991. He testified that he travelled regularly withthe Grateful Dead (hard-rock band) and, in order to support himself, he made tie-dyed shirts and sold spaghetti during the tour. He also admitted to ingesting drugs on the tour. In addition, he stated both he and Okkema, a friend of his, were "dead heads." Defendant denied selling LSD to Okkema on December 5, 1991, or December 11, 1991. He admitted that Okkema came over to his apartment from time to time; that Okkema came over on December 11, 1991, to return some tapes and he left $1,450 with defendant at that time; that Okkema "fronted" him 45 of the doses of LSD found in his apartment; and that he did not know Adams. Although he acknowledged that he was interviewed by Dahl after his arrest, defendant stated that he did not confess to Officer Dahl that he sold LSD to Okkema.

On review, the defendant challenges the trial court's denial of his pretrial motion to quash the search warrant. Defendant asserts that the "anticipatory" search warrant, its method of issuance, and its execution violated his constitutional rights against unreasonable searches and seizures. Defendant emphasizes that his right to privacy in the State of Illinois has a broader scope under article I, section 6, of the Illinois Constitution (Ill. Const. 1970, art. I, § 6) than an individual's expectation of privacy under the fourth amendment to the United States Constitution (U.S. Const., amend. IV). The State, on the other hand, asserts that an "anticipatory" warrant has been determined to be constitutional in other jurisdictions and should be so in Illinois as well. In addition, the State argues, the warrant in this case was executed only after all four conditions precedent were satisfied, thus it was executed properly. In the following analysis, we determine that "anticipatory" warrants are constitutional in Illinois, and the one at issue in this case was properly issued and executed.

The fourth amendment to the United States Constitution protects against unwarranted searches and seizures, and article I, section 6, of the Illinois Constitution sets forth a similar right. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6). That right has been referred to under the fourth amendment as existing within a "zone of privacy" ( United States v. Miller (1976), 425 U.S. 435, 440, 48 L. Ed. 2d 71, 77, 96 S. Ct. 1619, 1622), or an "expectation of privacy," ( Miller, 425 U.S. at 442, 48 L. Ed. 2d at 78-79, 96 S. Ct. at 1623; U.S. Const., amend. IV.) In Illinois, the right is referred to as the "zone of privacy," or "right to ...

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