Appeal from the Circuit Court of Cook County. No. 93-CR-24657. Honorable John D. Brady, Judge Presiding.
The Honorable Justice Theis delivered the opinion of the court: Hoffman, P.j., and S. O'brien, J., concur.
The opinion of the court was delivered by: Theis
The Honorable Justice THEIS delivered the opinion of the court:
Following a stipulated bench trial, the court found the defendant, Sonia Anaya, guilty of possession of more than 500 grams of cannabis and sentenced her to 30 months' probation and 100 hours of community service. On appeal, the defendant argues that her conviction should be reversed because the trial court erred in denying her motion to suppress evidence. She does not dispute the substance of the testimony given or the credibility of the State's witness. Rather, she maintains that as a matter of law, the detention of her luggage for a canine narcotics sniff test was not supported by a reasonable suspicion based on articulable and objective facts that the luggage contained contraband. See United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). We agree. We reverse the denial of the motion to suppress and remand for a new trial.
Chicago police officer Kenneth Krok testified at the motion to suppress hearing. He stated that on January 6, 1993, he and several other officers were monitoring the arrival and departure of trains at the Amtrak station in Chicago as part of a narcotics investigation in connection with the United States Drug Enforcement Administration Task Force. He testified that he carefully watched the passengers detraining from the Texas Eagle because it originates in a state that is known for importing illegal narcotics.
The defendant was among the passengers arriving on the Texas Eagle that day. She walked through the train station accompanied by Juan Garza-Diaz. Both were pulling identical, dark-blue, Samsonite hard-sided suitcases. Diaz also carried a black-and-gray nylon duffle bag. Krok stated that in his experience, narcotics often are carried in hard-sided luggage.
Krok further testified that he observed the defendant walking through the station for about three to five minutes. He did not observe any outwardly illegal behavior. However, he thought that she looked very flush and walked much more slowly than the other passengers. Krok also described the defendant as having a blank look, as if all of the color had disappeared from her face. He stated that she looked around, appearing nervous and confused.
Officer Krok then observed Diaz place the suitcases and the duffle bag next to one another against a wall and walk to the information desk. The defendant remained with the luggage.
Krok and his partner, Officer Rodriguez, approached Diaz as he walked away from the information desk. Krok displayed his badge and photo identification and asked permission to speak with him. Diaz consented and indicated that he had been on the Texas Eagle. Krok then requested Diaz's train tickets. Diaz had two tickets which had been purchased with $410 in cash. One of the tickets belonged to the defendant, but both were in the name of Garze. The tickets were booked for travel from Houston to Chicago with a final stop in Toledo, Ohio. Diaz stated that he was traveling with his woman, referring to the defendant. Diaz also stated that he met Anaya in Texas and had not learned her surname.
Diaz's State of Illinois identification listed his name as Juan Diaz, and his immigration card listed the name of Juan Garza-Diaz. Krok acknowledged that it is common for individuals of Hispanic heritage to receive the surnames of both parents. Diaz's State of Illinois identification card also listed his address as 5032 South Ashland in Chicago. Diaz explained that he had moved to Houston, Texas, and he gave Krok his new address in Houston.
Krok informed Diaz that he was not under arrest and was free to leave, but that he had a few more questions to ask. Krok explained that he was conducting a narcotics investigation and asked permission to search Diaz's bags. Diaz told Krok that he only had a black-and-gray duffle bag. The officers and Diaz then walked over to the area where the defendant had been standing. As they all approached the defendant, Krok pulled out his badge and identified himself as a police officer. Krok described the defendant as having a "flush," blank look on her face, and stated that her knees began shaking. Krok again asked permission to search the duffle bag. Diaz again consented. No narcotics were found.
After the search, Krok asked the defendant if she had come in on the Texas Eagle. The defendant did not respond. Krok repeated the question and the defendant softly answered "yes." Krok then requested her identification. The defendant asked why. Krok explained that he was conducting a routine narcotics investigation. He also told the defendant that she was not under arrest and was free to leave. At that point, the defendant's hands shook as she searched through her purse looking for her identification. The defendant gave Krok her Ohio driver's license bearing her photo.
Next, a muddled exchange took place concerning the possession of the suitcases. First Krok pointed to the suitcases and asked "are those your bags?" The defendant responded affirmatively in a voice so soft that Krok was uncertain of her response. After Krok repeated the question, the defendant said no. Krok then pointed to the suitcase which was sitting furthest away from the defendant and asked if it was hers. She said yes. Then he pointed to the other bag and asked if it was hers. She said no. Krok again asked whether both bags were hers and she said yes. Krok testified that he asked the defendant if she packed her bags herself, and she said no.
After advising the defendant that she was not under arrest, Krok asked permission to search her luggage but she refused. He then told the defendant that her bags would be temporarily detained so that they could be examined by a trained narcotics dog. Krok explained that the defendant could obtain a receipt for her bag if she accompanied him to his office. The defendant carried the luggage to the office and took the receipt. The officers told her to return in a half hour ...