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04/16/96 PEOPLE STATE ILLINOIS v. SAMUEL YARBER

April 16, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
SAMUEL YARBER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County. Honorable David W. Watt, Judge, presiding.

Certiorari Denied February 24, 1997,

The Honorable Justice Kuehn delivered the opinion of the court: Maag and Welch, JJ., concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

On Wednesday, November 9, 1994, at approximately 9:15 p.m., defendant Samuel Yarber (Yarber) arrived in Carbondale, Illinois, on an Amtrak train. He exited the train and began walking towards the station parking lot. As he was walking, he was approached by Carbondale police officer Dee Cross, who called Yarber by name. Officer Cross asked Yarber for identification. Yarber produced his driver's license and Southern Illinois University identification card. Officer Cross informed Yarber that she had reason to suspect that he possessed drugs. She asked Yarber if he had drugs. Yarber responded negatively. Officer Cross then requested consent to search Yarber's two bags and his person. Whether or not Yarber consented to a search of his person is disputed. Officer Cross conducted a limited search of Yarber's person, which yielded nothing. Yarber denied consent to search his two bags.

Officer Cross consulted with the four other officers in attendance regarding what to do in light of Yarber's refusal to consent. The police officers decided to have a dog trained in narcotics detection brought to the Amtrak station to sniff Yarber's bags. Prior to their arrival at the station, the officers were aware that the Carbondale police department narcotics dog, Jasper, could not be brought to the station because he lacked liability insurance for work in public places. The police officers contacted the Illinois State Police to determine if its dog was available. The Illinois State Police narcotics dog was unavailable. A call to Williamson County to check on the availability of its dog was similarly unsuccessful.

While the police officers made these calls, Yarber stood next to his luggage. The police officers claimed that they advised Yarber he was free to leave and that he chose to remain with the officers. Yarber claims that he was never so advised.

Finally, the police officers decided to seize Yarber's two bags and transport them to the Carbondale police department headquarters, where Jasper could conduct his sniff test. Yarber was advised that if he accompanied the officers to police headquarters, a receipt for his bags would be provided.

The length of detention from police contact as Yarber exited the train until the bags were seized was also in dispute. The parties agree that the detention lasted longer than 15 minutes. While Yarber was free to leave, he was not allowed to take his bags and was advised that if he attempted to do so, he would be arrested.

Later that evening at the Carbondale police department headquarters, Jasper sniffed and alerted on both of Yarber's bags. On the basis of an anonymous tip and the alert, a search warrant was obtained for both bags. A search of the bags revealed that one contained approximately two pounds of cannabis. The other bag did not contain cannabis. *fn1

Yarber was charged with unlawful possession of more than 500 grams of cannabis with intent to deliver, a Class 2 felony. 720 ILCS 550/5(e) (West 1992). Yarber filed a motion to suppress the cannabis and all testimony regarding the cannabis, claiming that the stop, detention, and seizure were illegal.

At the hearing, testimony focused upon information provided by the anonymous informant. On November 8, 1994, at approximately noon, an anonymous informant telephoned the Crimestoppers line, staffed by the Carbondale police department. The informant claimed that her best friends purchased cannabis on a regular basis from a man by the name of Samuel Yarber and that he sold cannabis at parties. The informant provided Yarber's general physical description (race, height, and weight), provided his dormitory address at Southern Illinois University, and indicated that he lived alone at that address and that he worked at the Lentz Hall cafeteria. Four hours later, the anonymous informant called back and indicated that Yarber would leave that date by Amtrak train bound for Chicago, Illinois, returning by Amtrak train to Carbondale on November 9, 1994. The purpose of this trip to Chicago was to purchase cannabis.

In an effort to confirm the details of the anonymous tips, the Carbondale police department contacted university law enforcement officials, who confirmed that Yarber was a Southern Illinois University student and resided alone at the address provided by the informant. A check with Yarber's employer revealed that he had not worked in the cafeteria for several days. A criminal background check was helpful in confirming Yarber's race, height, and weight.

University officials proceeded to the Amtrak station on November 8, 1994. The train bound for Chicago had already departed. Amtrak maintained no list of passengers, and so there was no way to confirm that Yarber was on board that train. An Amtrak employee, Nelson Miesner, when shown a Polaroid photograph of Yarber's college identification card photograph, indicated that he was "almost positive" that Yarber had been in the train station earlier that date, requesting change. University officials also checked the Amtrak reserved list for the November 9, 1994, train originating in Chicago, but Yarber was not on the list. Repeated ...


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