Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. John D. Brady, Judge, presiding.
The Honorable Justice McMORROW delivered the opinion of the court: Justice Heiple, dissenting: Chief Justice Bilandic joins in this dissent.
The opinion of the court was delivered by: Mcmorrow
JUSTICE McMORROW delivered the opinion of the court:
The defendant, Thomas Robinson, was charged with two counts of possession of a controlled substance with intent to deliver under section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401). A jury convicted the defendant on both counts, and the defendant was sentenced to nine years' imprisonment. The appellate court vacated defendant's convictions of possession of a controlled substance with intent to deliver, reduced defendant's conviction to possession of a controlled substance and remanded the cause for resentencing. (252 Ill. App. 3d 1023, 624 N.E.2d 1318, 1993 Ill. App. LEXIS 1354, 191 Ill. Dec. 940.) We granted the State's petition for leave to appeal (145 Ill. 2d R. 315). The defendant cross-appeals.
Two issues are presented for review in this appeal: whether the police officers had probable cause to arrest the defendant; and whether the State presented sufficient circumstantial evidence to support defendant's conviction of possession of a controlled substance with intent to deliver.
Evidence presented at trial indicated the following. Officer Larry Regalado testified that he was working as an undercover officer with a tactical team of the Chicago police department on the morning of September 7, 1990. Officer Regalado testified that at approximately 12:20 a.m. he went to an apartment building at 107 North Menard with his partner, Officer Barnes, in response to complaints that narcotics were being sold from the second floor of the building. The officers conducted surveillance of the building from one block away. The officers observed approximately 12 persons enter and exit the building over a 20-minute period of time.
Officer Regalado testified that because the officers observed "a lot of [pedestrian] traffic," they decided to approach the building and called for the assistance of additional officers, who arrived within minutes. Officer Brown went to the rear of the building and Officers Regalado and Barnes entered the front door of the building, maintaining radio contact with Officer Brown at all times. Officers Regalado and Barnes went to apartment 107, one of the two apartments on the second floor of the building. Officer Regalado knocked on the door and announced that they were police officers. The officers heard scuffling in the apartment which sounded like "people running - in the apartment." Approximately one minute later, the officers received a radio transmission in which Officer Brown stated that she had observed a male wearing no shirt open a rear window and toss a plastic bag out of the window. Officer Regalado testified that approximately 20 or 30 seconds after Officer Brown's transmission, the defendant opened the apartment door wearing no shirt. Regalado also observed two females and some children in the apartment.
Officer Regalado testified that defendant stood in the apartment doorway while he questioned defendant and informed him of the complaints that drugs were being sold at 107 North Menard. The defendant told the officers that he did not live in the apartment. Officer Brown, who had been stationed outside at the rear of the building, came up to apartment 107. When Officer Brown arrived at apartment 107, she identified the defendant as the man who threw the plastic bag out the window and showed the bag to Officer Regalado. The officers then arrested the defendant. The items recovered from the plastic bag were inventoried and Officer Brown sealed them in an evidence bag.
On cross-examination Officer Regalado testified that the complaints he had received of drug transactions consisted of two or three phone calls from anonymous persons. He testified that although he signed the arrest report, he did not read it, and that he wrote the case report. He further testified that the case report did not describe the surveillance of 107 North Menard or the officers' observations during the surveillance.
Officer Brown testified that she had worked for the tactical unit in narcotics investigations for approximately eight years, and that she had observed the building at 107 North Menard one or two days before the defendant's arrest, investigating complaints that narcotics were being sold at that address. She said that she had viewed the front, rear and side of the building and knew which windows were at the rear of the apartment building. Officer Brown testified that she and Sergeant Schweiger were called to 107 North Menard on September 7, 1990, by Officers Regalado and Barnes.
Officer Brown testified that she went to the rear of the apartment building. When she reached the rear of the building, she received a radio transmission from Officer Regalado who asked her if she was in position. Officer Brown replied that she was at the rear of the building. Officer Regalado informed her that he and Officer Barnes were going to knock at the front door. She stated that there was a light in the apartment and lights at the back of the building. Officer Brown testified that she observed a man, whom she identified as the defendant, come to a rear window of the apartment building, open the window and toss a packet out of the window onto the ground. She stated that the packet contained some tinfoil packets and many small clear plastic bags which contained a white powdery substance.
Officer Brown testified that she used her radio to tell the officers at the front of the building that she had seen a man with gray hair and wearing no shirt toss the packet out of the window. She retrieved the bag and described the packet to the officers. The officers told Officer Brown to come to the front of the upstairs apartment. Officer Brown then carried the bag she had seen defendant throw from the window around the building to an upstairs apartment where Officers Regalado and Barnes were standing in the doorway with a man. She told Officer Regalado that the man standing in the doorway was the man who dropped the packet out of the rear window. She testified that the packet was inventoried, sealed in an inventory bag and sent to the crime lab.
Jose Mantilla, an expert witness for the State, testified that he was employed as a forensic chemist by the Chicago police department. He testified that he opened the sealed inventory bag and found four tinfoil packets containing crushed green plants, 36 plastic bags containing a white rocky substance and four empty plastic bags. Mantilla testified that he first weighed two of the tinfoil packets and that their combined weight was 1.1 grams. He next conducted both a preliminary analysis and a confirmatory analysis on the crushed green plant. The substance tested positive for the presence of phencyclidine (PCP). He estimated that the combined weight of the substance in all four tinfoil packets was 2.2 grams.
Mantilla testified that he then weighed the white substance in three of the plastic bags which had a combined weight of 0.23 grams, and that he estimated the weight of all 36 bags at 2.8 grams. He then conducted two preliminary analyses on three of the bags and a confirmatory analysis on one of the three bags. All three tests indicated that the white rocky substance contained cocaine. Mantilla then performed additional tests on the substance in 15 of the bags. The 15 bags contained a combined 1.47 grams of the white rocky substance and tested positive for the presence of cocaine.
At the close of the State's evidence, the defendant moved for a directed verdict. The court ...