Appeal from Circuit Court of Champaign County. No. 95CF100. Honorable John R. DeLaMar, Judge Presiding.
Released for Publication October 2, 1996. As Corrected October 18, 1996.
Honorable Rita B. Garman, J., Honorable Robert W. Cook, P.j., Concurring, Honorable Robert J. Steigmann, J., Specially Concurring. Justice Garman delivered the opinion of the court.
The opinion of the court was delivered by: Garman
JUSTICE GARMAN delivered the opinion of the court:
Pursuant to Supreme Court Rule 604(a)(1) (145 Ill. 2d R. 604(a)(1)), the State appeals an order of the circuit court of Champaign County granting motions to suppress evidence and quash arrest filed by defendants, Craig Shapiro and Rachel Smith. We affirm.
Defendants were charged with possession, with intent to deliver, 200 grams or more of a substance containing psilocybin (a controlled substance). 720 ILCS 570/401(a)(11) (West 1994). The arrests were based upon a search warrant executed at Smith's apartment, where officers seized controlled substances, drug paraphernalia, and cash. A package containing mushrooms laced with psilocybin was among the items seized. This package had been sent through the United States Postal Service (Postal Service) express mail and was the subject of a controlled delivery by law enforcement and postal inspection authorities. After Shapiro accepted delivery of the package, police executed the search warrant.
I. PROCEEDINGS IN THE TRIAL COURT
At the suppression hearing, United States Postal Inspector Stephen Atterbury, based in St. Louis, Missouri, testified that on Thursday, January 19, 1995, he received a telephone call from personnel in the Chicago branch of the Postal Service stating that an express mail package had been removed from the mail stream at O'Hare International Airport (O'Hare). The package was then placed in two additional express-mail containers and sent to him. He received it the next day. The reason the package was sent to him rather than examined in Chicago was that the address of the package placed it in his jurisdiction. He examined it to see if it fit into the Postal Service "drug package profile." The package measured approximately 14 by 14 by 9 inches and was wrapped in heavy brown paper, with the seams heavily taped. The package was mailed from Eugene, Oregon, to an address in Champaign, Illinois. The "drug package profile" consists of various criteria developed by the Postal Service which may indicate the presence of contraband. Those criteria are (1) heavy brown paper wrapping, (2) heavily taped seams, (3) handwritten address label, (4) sent from one individual to another, (5) mailed from a zip code different than the return address, and (6) a fictitious return address. Atterbury noted that all these characteristics applied to the package he received from Chicago. However, criteria No. 6 was not determined in Chicago; he personally called Eugene, Oregon, and found that the return address did not exist. Atterbury then contacted the St. Louis County police department canine unit and a detective brought a narcotic-trained dog to check the package. The package was placed in a room, and the dog's response to it indicated the presence of a narcotic odor. Atterbury completed an affidavit for a search warrant and presented it to a federal magistrate who issued a search warrant at 2:38 p.m. on Friday, January 20, 1995. Atterbury testified he did not know what specific narcotics the dog had been trained to detect, but admitted his affidavit stated the dog was trained to detect a number of controlled substances, none of which was psilocybin. Atterbury then opened the package and found it contained a box wrapped in wrapping paper. He opened that package and found a box containing two packages. Inside the packages were mushrooms. The contents of one package field-tested positive for psilocybin. Atterbury then "seized" the package and contacted Task Force Ten in Champaign County to arrange for a controlled delivery. The arrangements were completed in the late afternoon on Friday, January 20, 1995, for a delivery on Monday, January 23, 1995. Atterbury traveled to Champaign and personally delivered the package to Smith's apartment. When Shapiro answered the door, Atterbury told him the package was addressed to Smith, and Shapiro indicated she was not there. Shapiro said he also lived in the apartment, and Atterbury told him he could sign for the package.
Champaign police officer Jeff Munds testified that he was contacted by Atterbury to assist in arranging the controlled delivery. He also received a copy of Atterbury's affidavit and the search warrant issued by the federal magistrate. With this information, a complaint for search warrant was prepared and submitted by Munds to Judge Parkinson. The warrant was issued at 2:40 p.m. on Monday, January 23, 1995. Munds indicated he had discussed execution of the warrant with Judge Parkinson. The assistant State's Attorney asked Munds what direction Judge Parkinson had given him. Munds answered, "Judge Parkinson made it clear that the warrant would only be valid --." At this point, defense counsel interrupted with an objection based on hearsay. After discussion with the attorneys as to whether the condition for execution of the warrant must be shown on the face of the warrant, or whether the judge may recite it verbally, the trial court sustained the objection. The State did not submit an offer of proof as to Munds' conversation with Judge Parkinson. The package was delivered at approximately 8:30 a.m. on January 24, 1995. After delivery, Champaign police officers executed the search warrant and found the express mail package, as well as other contraband and cash.
Munds testified he had no prior contact with Shapiro or Smith and he had received no information concerning either of them which would raise suspicion about their activities.
After hearing arguments of counsel, the trial court granted the motions, finding there was probable cause for the issuance of the search warrant by Judge Parkinson, based upon reliability of the information upon which it was based and anticipated delivery of the package. However, the court found that the failure to include on the face of the warrant conditions precedent to the execution of the warrant rendered it invalid. The court found Judge Parkinson's verbal instructions to Officer Munds concerning conditions upon which the warrant was to be executed insufficient. In addition, the court found that even if verbal instructions could supply the conditions, they were insufficient because the package was to be delivered on January 23, 1995, as indicated in the complaint for the search warrant, yet it was not delivered until the next day. The court also found the good-faith exception of United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), was not applicable because the warrant lacked the conditions of execution and was therefore not facially valid. The court also found, however, that assuming the Leon exception applied, it must determine whether the search warrant issued by the federal magistrate in St. Louis was valid. The court stated this warrant was supported by probable cause, based upon the characteristics of the package and the fact the narcotics dog reacted positively to the package for the presence of narcotics odor. However, the court indicated that validity of this warrant depended upon whether the information relied upon by Atterbury in his affidavit for the warrant was obtained legally. The court concluded that removal of the package from the mail stream in Chicago was not supported by probable cause, thereby rendering the St. Louis search warrant invalid. The court found that the removal was a seizure. The package was taken from the mail stream, repackaged in two additional containers, and sent out of state for further inspection. The court noted there was no evidence that Eugene, Oregon, was a "target city," i.e., a location from which drugs are known to be sent. The court found that the fact the package met several of the other criteria in the drug package profile did not constitute probable cause, noting there must be many packages similar to this one that are perfectly legal. The court remarked that surely the federal authorities could have undertaken in Chicago what was done in St. Louis. The State filed a certificate of impairment, and this appeal ensued.
We first note that a trial court's ruling on a motion to suppress will not be disturbed on review unless the decision is against the manifest weight of the evidence. People v. Binder, 180 Ill. App. 3d 624, 627, 536 N.E.2d 218, 220, 129 Ill. Dec. 534 (1989). Where neither the facts nor credibility of the witnesses is questioned, the appellate court may review the issue de novo. People v. Graves, 196 Ill. App. 3d 273, 276, 553 N.E.2d 810, 812, 143 Ill. Dec. 103 (1990).
The State first argues that the trial court applied the wrong standard to the initial seizure of the package in Chicago. It maintains that applying the correct standard of "reasonable suspicion" demonstrates that the seizure was proper. In support of this argument, it cites United States v. Van Leeuwen, 397 U.S. 249, 25 L. Ed. 2d 282, 90 S. Ct. 1029 (1970), in which respondent mailed two packages at a town near the Canadian border. One package was addressed to a post office box in Van Nuys, California, and the other was addressed to a post office box in Nashville, Tennessee. The packages, each weighing approximately 12 pounds, were to be sent airmail registered and were insured for $10,000 each. Respondent told the postal clerk the packages contained coins. The clerk expressed suspicion about the packages to a police officer who happened to be nearby. The officer noticed the automobile license plates on respondent's car were from British Columbia and that the return addresses on the packages were from a vacant housing area of a nearby junior college. The police officer called Canadian police, who in turn called customs in Seattle 1 1/2 hours after respondent had mailed the packages. Customs officials determined the addressee of the package destined for Van Nuys was under investigation for trafficking in illegal coins. Because of the time differential, customs was unable to ...