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05/06/97 PEOPLE STATE ILLINOIS v. FALISHA CARTER

May 6, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FALISHA CARTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Stanley Sacks, Judge Presiding.

Released for Publication June 25, 1997.

The Honorable Justice Tully delivered the opinion of the court. Rakowski and McNULTY, JJ., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Defendant, Falisha Carter, was charged with possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(D) (West 1994)) and controlled substance trafficking (720 ILCS 570/401.1 (West 1994)). Following a bench trial, she was convicted for possession of a controlled substance with intent to deliver and sentenced to 15 years' imprisonment. Defendant now appeals the judgment of conviction pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

FACTUAL HISTORY

A. Motion to Quash and Suppress the Evidence Hearing

The pertinent facts are as follows. On April 11, 1995, defendant purchased a one-way airline ticket from Los Angeles to Chicago on Southwest Airlines under the name Keisha Walker and paid in cash 23 minutes prior to departure. This information was received by Agent Donald Morrison, a Cook County Sheriff's Deputy assigned to the Drug Enforcement Agency (DEA) Task Force in Chicago from the DEA Task Force in Los Angeles. Agent Morrison's job was to conduct narcotic investigations at Midway International airport. Upon disembarking the Southwestern airplane at Midway, defendant proceeded to the baggage claim area. Defendant retrieved her suitcase and walked out of the airport terminal. According to defendant, as she left the terminal, a man grabbed defendant's right arm and told her that he had reason to believe that she possessed narcotics. Defendant stated that she was subsequently patted down by a female agent. She recalled that a male agent asked for her airline ticket and a claim ticket. When asked if she had any identification on her person, she answered in the negative. The male agent then asked for the key to her suitcase to which defendant replied that she did not have one. According to defendant, the agents searched her suitcase without her consent, found a teddy bear in the suitcase and ripped it open with a knife. The agents then pulled three kilos of cocaine from the teddy bear. Furthermore, defendant stated that the agents never told her she could refuse to consent to the search, never informed defendant that she was free to leave, nor did she feel free to leave. Under cross-examination, defendant stated that she "became nervous when the agent grabbed her arm, not before."

Agent Morrison's account of the incident conflicts with defendant's testimony. Morrison stated that after he received the information from the DEA Task Force in Los Angeles, he set up a surveillance at the gate at which defendant was due to arrive. Morrison testified that he observed defendant go to the baggage claim area, talk to a man and a woman, retrieve her bag, present her claim stub to the security officer and exit the airport. Morrison, who was in plain clothes and unarmed, identified himself with his badge and photo identification when he approached defendant and asked if he could speak with her. She agreed. Morrison then asked defendant if she had any identification, but she did not. When twice asked if she had arrived on Southwest Airlines, defendant answered no, that she had arrived on American Trans Air (ATA). Morrison asked to see the ticket, wherein defendant pulled out two ATA tickets dated two days earlier going from Chicago to Los Angeles. Noticing a Southwest Airline flight folder protruding out of defendant's purse, Morrison inquired about it. At this time, defendant became nervous. Morrison stated that he advised her not to be nervous, that she was not under arrest and free to leave. After looking at the airline ticket, Morrison returned it to defendant. Defendant told Morrison that she had been in Los Angeles for two days to attend a funeral. When asked if the suitcase she was carrying belonged to her, defendant denied ownership of it. Later, she admitted that it was indeed hers. Defendant stated that her mother had packed the suitcase. Morrison again told defendant that she was not under arrest and was free to leave.

Morrison, in the presence of Agent Harold Small, a DEA agent who had been standing 5 to 6 feet away earlier, asked defendant if they could open her suitcase. Defendant replied "yes, if you must." Morrison stated, "it's not that I must. That's why I am asking your permission to search," to which defendant answered "go ahead, it's ok." The agents asked for the key since the suitcase was locked, but defendant did not have one. One of the agents unlocked the suitcase, opened it and a large teddy bear popped up. Morrison testified that Agent Small felt a hard brick shaped object inside of the teddy bear and believed it to be cocaine or marijuana. Agent Stewart pulled out the bear, slit it with a knife and recovered three kilos of cocaine from inside. Morrison does not deny the fact that he did not secure a warrant or have defendant sign any written consent form. In his testimony, Morrison stated that neither he nor anyone else grabbed defendant's arm. Agent Pam Trainer patted down defendant once she was in custody. Only after the agents arrested defendant did they realize that defendant's real name was Falisha Carter, not Keisha Walker.

After a hearing, the trial court denied defendant's motion to quash arrest and suppress evidence. It found that the conversation between Morrison and defendant was consensual.

B. Trial Court Proceedings

At trial, the testimony of the witnesses and defendant were essentially the same, with some exceptions. Morrison testified that when the agents discovered the narcotics in the teddy bear, defendant gave some incredible explanations. First, defendant stated that her mom packed the suitcase. Later, defendant said that a couple of Jamaicans in Los Angeles took her children and were going to kill them if she did not do this. When the agents looked into that allegation, they discovered defendant did not have any children. Defendant again changed her story and told Morrison that she owed the Jamaicans a lot of money, and if she did not do this they would kill her. Finally, defendant told Morrison that she thought the suitcase might contain marijuana, but not cocaine. At trial, three stipulations were entered over defendant's objections: (1) Moses Boyd, a chemist for the Chicago Police Department would testify as to the chain of custody of the narcotics and that the 3003.5 grams of cocaine were a purity level of 76%; (2) Officer Edward Feliciano, an expert as to the street value of cocaine during April of 1995, would testify that 3003.5 grams of cocaine with a 76% purity level has a street value of approximately $85,000 to $1,200,000 and would not be an amount possessed by an individual for personal use; and (3) the Southwest Airline keeper of records would testify that a lady named Beverly reserved a flight to Chicago for a Keisha Walker and that a woman paid for the one-way ticket in cash 23 minutes prior to departure.

At the close of the evidence, defendant moved for a judgment of acquittal, which the trial court denied. The trial court held that defendant was guilty of possession of a controlled substance with intent to deliver (Count I), but not guilty on controlled substance trafficking (Count II). At ...


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