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09/12/95 PEOPLE STATE ILLINOIS v. KENNETH MCKINNEY

September 12, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
KENNETH MCKINNEY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jefferson County. No. 94-CF-2. Honorable Leo T. Desmond, Judge, presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Goldenhersh delivered the opinion of the court: Welch and Hopkins, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH, delivered the opinion of the court:

Defendant, Kenneth McKinney, was charged with aggravated battery and unlawful possession of more than one gram but less than 15 grams of a substance containing cocaine with the intent to deliver on school grounds. Defendant filed a motion to suppress, and on April 28, 1994, a hearing on the motion was held. The trial court granted defendant's motion. The State appeals, arguing that the trial court's assessment of the evidence was manifestly erroneous. We agree and reverse and remand.

I

On January 5, 1994, defendant, an 18-year-old student in a behavioral disorder class at Mt. Vernon High School, arrived at teacher Jan Greene's class upset and refusing to remove his jacket pursuant to school rules for all level four students. Greene testified that defendant wanted to confront a classmate who allegedly called defendant a racial slur. When defendant approached the student, Greene attempted to intervene by blocking defendant's way. To get Greene out of his way, defendant picked Greene up and tossed her aside. Greene fell to the floor. Defendant continued to approach the student, removing his jacket and placing it on a chair. Greene, prompted by her concern that defendant might have a weapon in the jacket, slid the chair with the jacket on it into an adjoining closet-type room and locked the door. Because defendant continued to be aggressive toward Greene, the police were summoned to the school. Officers Kenneth McElroy and Chris Mendenall responded to the call.

Upon arriving at the school, the officers interviewed Greeneregarding the altercation. Greene recounted to the officers the facts surrounding the incident. Defendant remained somewhat excited, so the officers decided to conduct a pat-down and handcuff him. Determining that there was probable cause to arrest defendant for aggravated battery, the officers placed defendant under arrest. Because it was cold outside, Officer McElroy inquired whether defendant had any belongings to take with him to the station. Instead of answering McElroy, defendant turned to another student and instructed the student to make sure defendant's cousin got his coat. McElroy informed defendant that the coat would have to accompany defendant to the station. Greene communicated to the officers her belief that the jacket may contain a weapon. Greene retrieved the jacket from the locked room and gave it to Officer Mendenall.

Defendant was escorted to McElroy's squad car and transported to the police station. Mendenall took the jacket and escorted defendant's girlfriend to the squad car. The girlfriend was arrested for disorderly conduct when she began to verbally attack Greene upon defendant's arrest. Mendenall placed the jacket beside him on the front seat of the squad car and transported defendant's girlfriend to the police station.

At the station, Mendenall gave the jacket to McElroy, who conducted an inventory search pursuant to police department policy. During the inventory search, McElroy discovered three bags of cannabis, one white rock-like substance, and a bottle containing about six white rock-like substances which he believed to be crack cocaine. The contraband appeared to be packaged for sale. Mendenall conducted a field test on the white rock substances, which tested positive for cocaine. No weapon was found.

On January 7, 1994, a two-count information was filed against defendant. Count I charged defendant with aggravated battery in violation of section 12-4(b)(3) of the Criminal Code of 1961 (the Code) (720 ILCS 5/12-4(b)(3) (West 1992)). In count II, defendant was charged with unlawful possession of a controlled substance (more than one gram but less than 15 grams of a substance containing cocaine) with the intent to deliver on school grounds in violation of section 401 of the Illinois Controlled Substances Act (the Act) (720 ILCS 570/401(c)(2) (West 1992)) and section 407(b)(1) of the Act (720 ILCS 570/407(b)(1) (West 1992)).

On March 25, 1994, defendant filed a motion to suppress evidence. Defendant's motion alleges that defendant's person and jacket were searched by Mt. Vernon city police officer Kenneth McElroy and that the search was not pursuant to a search warrant; that the officer unlawfully seized a plastic bag containing cannabis and abottle containing six rocks, white in color, and $12 from defendant's jacket pocket; that upon arrest McElroy asked defendant if he had a coat or any other belongings he needed to take with him and that defendant stated he wanted his coat to be given to his cousin; that the teacher gave the coat to McElroy; that the illegal search was conducted without defendant's permission or probable cause; and that the search and seizure were not incident to an inventory search and therefore the search and seizure were in violation of defendant's constitutional rights.

A hearing on defendant's motion to suppress was held on April 28, 1994. Defendant testified that because he was on level four in his behavior class, school rules required him to remove his coat upon arriving at school for storage in a locked room. Defendant also stated that he knew that only students in the higher levels are permitted to keep their coats with them on the back of their chairs. Defendant testified that when he was arrested, he asked Greene and the officer to give the jacket to his cousin to make sure the jacket got to his home. Defendant further testified that he did not wear the jacket to the police station and that no one asked him for permission to search his jacket. Lastly, defendant stated that his jacket was not returned to him after he arrived at the station.

Greene testified on behalf of the State. Defendant is a student in Greene's class, and Greene has direct contact with defendant. Greene testified that defendant was in a behavior class and that he was on level four, the lowest level. Greene explained that students were placed on level four if they physically threatened staff and were consistently noncompliant. According to Greene, defendant was placed on level four because after Christmas he became "physically threatening, encouraging other students to -- to have problems with staff, as well as saying how easy it is to get a weapon, how easy it is to cause trouble to staff, damage to staff people that gave him trouble." Greene stated that on the day of the incident, she was concerned that defendant might have something in his jacket that he could use against the other students or a staff member. Greene's concern was premised upon the nature and frequency of defendant's statements regarding the easy accessibility of weapons and harm to staff members that "gave him ...


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