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June 12, 1996


Appeal from the Circuit Court of Kane County. No. 91-CF-2073. Honorable James T. Doyle, Judge, Presiding.

Released for Publication July 23, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Bowman, J., concurs. Justice Rathje, dissenting:

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Defendant, Willie Graves, was indicted on the charge of unlawful possession of under 15 grams of cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c) (now 720 ILCS 570/402(c) (West 1994))). After a hearing, defendant's motion to quash the arrest and suppress evidence was denied, as were defendant's subsequent motions to reconsider the ruling. On November 5, 1993, defendant was found guilty after a stipulated bench trial and sentenced to one year's imprisonment in the Department of Corrections. Following a denial of defendant's motion for a new trial, he perfected this timely appeal.

On appeal, defendant raises one issue, namely, whether the trial court erred in denying defendant's motion to suppress evidence. Citing this court's opinions in People v. Harper, 237 Ill. App. 3d 202, 177 Ill. Dec. 334, 603 N.E.2d 115 (1992), and People v. Woods, 241 Ill. App. 3d 285, 181 Ill. Dec. 818, 608 N.E.2d 1292 (1993), defendant contends that the police lacked the specific and articulable facts to justify an investigatory stop of the taxi in which he was riding. The State maintains that the police officers conducted a valid stop under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and properly seized the cocaine packet that was in plain view.

The only witness at the suppression hearing was the arresting officer, Don Jerome, who testified that, at about 11 p.m. on December 12, 1991, he and his partner, Detective Padron, began a surveillance of 132 Hinsdale Place in Elgin. They were in separate vehicles. The Elgin police department had received information that drugs were being sold from that address during December 1991. Controlled purchases of cocaine had been made at the address by an informant within the week preceding December 13, 1991. Jerome did not personally know who was selling cocaine from 132 Hinsdale Place. Officer Jerome believed that 132 Hinsdale Place was a single-family house, but he was not sure. He did not know who lived in the two-story residence. Officer Jerome had never been in the subject premises, and he did not know whether any other police officer had ever entered it before December 12, 1991.

Officer Jerome testified that between 11 p.m., December 12, and 2 a.m., December 13, four people who came out of 132 Hinsdale Place were arrested for unlawful possession of a controlled substance. Two of the four people arrested made statements indicating that the cocaine in their possession came from that address.

According to Jerome, at about 2 a.m., a taxi stopped three or four car lengths south of 132 Hinsdale Place, although there was parking space available directly in front of the residence. Officer Jerome opined that the taxi parked away from the front of 132 Hinsdale Place in an effort to avoid surveillance. Jerome saw a black man, who was later identified as defendant, get out of the taxi. He did not see anything in defendant's hands. Defendant went to the door of the building at 132 Hinsdale Place. He knocked at the door and was admitted. Officer Jerome stated that he could not see inside the building and that he heard nothing. Defendant came out of the building approximately two minutes later and walked back to the taxi. Officer Jerome again could not see anything in his hands.

The taxi began to drive away. Officer Jerome acknowledged that there was nothing out of order about the taxi and that no traffic offense had been committed. There was another passenger in the taxi, but Jerome had not seen him do anything wrong. No warrant existed for either defendant or the other passenger. As far as Officer Jerome knew, the confidential informant who had told the police about drug sales at 132 Hinsdale Place never mentioned defendant.

Officer Jerome testified that he "believed [defendant] was involved in drug activity that occurred at 132 Hinsdale Place." Officer Jerome and Detective Padron initiated a traffic stop of the taxi and then walked to either side of the vehicle, ordering both passengers to exit it. Jerome stated that it was at this point that he recognized defendant. The officers saw no drugs when they stopped the taxi. Officer Jerome noticed that defendant had "some type of packet" in his left hand. Jerome stated that defendant attempted to conceal the packet to the left side or under the seat as he got out of the taxi. Officer Jerome suspected that the packet contained cocaine and seized it. The contents later tested positive for cocaine.

At the conclusion of the hearing, the trial court denied the motion to suppress. In so holding, the trial court stated:

"The fact that there were four other people that were arrested doing the same thing that night between 11:00 and 2:00 o'clock, under the same circumstances, two of them being named by name, and one of them *** having given a statement stating that she went up there in the same manner as did [defendant], for about the same length of time and she purchased drugs out of there ***.

That plus the one or two statements that they got from the people who were arrested prior to [defendant] gave them probable cause to not only watch the house, but also when they saw somebody acting under the same set of circumstances as they had others, gave them probable cause to stop the cab and look for drugs.

Probable cause arose out of the circumstances of the others that preceded [defendant], as well as [defendant's] actions being somewhat, if not identically similar to ...

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