APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH J. URSO, JUDGE PRESIDING.
As Corrected December 11, 1995.
The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j., and Braden, J., concur.
The opinion of the court was delivered by: Wolfson
The Honorable Justice WOLFSON delivered the opinion of the court:
The defendant's only hope in this case was to persuade the trial judge that the 28 pounds of cannabis found in his suitcase were seized in violation of the fourth amendment. Inexplicably, the defendant's lawyer did not move to suppress the evidence, despite a reasonable probability of success. Convicted by a jury of cannabis trafficking, he was sentenced to seven years' imprisonment.
We find the defendant was denied his sixth amendment right to effective assistance of counsel. For that reason, we reverse his conviction and remand the cause for a new trial.
Chicago Police Detective Thomas Kinsella and DEA Special Agent John Zandy testified that on January 31, 1991, they were part of the DEA Task Force drug interdiction unit. It was their job on that day to monitor trains arriving at Union Station from recognized drug source cities.
About 3:30 that afternoon a train arrived at Union Station from Los Angeles, a source city. Kinsella and Zandy watched as the train pulled into the station. They saw a man, later identified as Raymond Steels, jump down from the train as soon as it came to a halt. They noted that Steels deboarded from the first sleeper car of the train. He was carrying three pieces of luggage, including a hard-side, Samsonite suitcase. He looked up and down the platform and then walked rapidly toward the concourse. Once inside the concourse, he entered the boarding lounge, set his luggage down, and looked around. A short while later he picked up the suitcase in a manner that suggested that it was quite heavy. He walked toward the cab stand, changed direction twice, then headed for the escalator.
Steels' behavior drew the attention of Kinsella and Zandy. As he walked to the escalator, they approached him, introduced themselves as police officers, and asked to speak with him. Kinsella asked to see Steels' identification and train ticket. Steels, his hands visibly shaking, produced the ticket and a Wisconsin identification card in his name. The ticket was for a one-way trip from Los Angeles to Chicago. The amount of the ticket was $300 and had been purchased in cash.
The officers found several factors significant. Past experience has shown, they said, that drug couriers use hard-sided luggage to mask the size and shape of the contents and to help contain odors. It is also common for couriers to have one-way tickets. Often, they said, couriers fly to a source city, then return on trains. Trains are used because there are no security checks as there are in airports. The officers also testified that drug couriers often use sleeper cars for privacy and because they do not have to check their luggage. The officers found it noteworthy, too, that the ticket was paid for in cash. Business travelers, they testified, generally use credit cards or checks for record-keeping purposes. For these reasons, their suspicions were further aroused.
The officers questioned Steels further. He told them that he had been in California on vacation, he owned an import/export business in Milwaukee, and that the luggage he was carrying was his own. Detective Kinsella then asked if Steels would consent to a search of his luggage. Steels declined. Detective Kinsella then advised Steels that the suitcase would be detained for a sniff examination by a narcotics detection dog. He told Steels that he was free to leave or that he could wait for approximately 10 minutes until the dog checked the bag. At that point, Steels allowed the officers to search his garment bag and carry-on bag, but not the hard-side suitcase. Kinsella searched those two bags and found nothing. He then prepared duplicate receipts for the hard-side suitcase he was detaining. He gave one receipt to Steels, along with his business card. He had Steels sign the other one. Kinsella kept the signed receipt. (It was entered as an exhibit at trial.) Kinsella took Steels' picture. Steels then left the station.
After Steels left, the suitcase was taken to an office at the station. Kinsella's narcotics dog, Rex, was brought in and told to "fetch drugs." Rex located the suitcase and reacted in a way that indicated that narcotics were present inside the suitcase.
Based upon Rex's reaction to the suitcase, a search warrant was obtained. The suitcase was opened. Inside it were two new pair of ladies' jeans and three packages, two large and one small. The packages were wrapped in fabric softener sheets and clear cellophane. These packages were taken to the Chicago crime ...