Appeal from the Circuit Court of Cook County. No. 95 CR 2277. Honorable Lon W. Shultz, Judge Presiding.
Released for Publication July 21, 1997.
Presiding Justice DiVITO delivered the opinion of the court. Rakowski, J., concurs. McNULTY, J., dissents.
The opinion of the court was delivered by: Divito
PRESIDING JUSTICE DiVITO delivered the opinion of the court:
Following a bench trial, defendant Stanley Smith was found guilty of possession of a controlled substance with intent to deliver and was sentenced to six years' imprisonment. In this appeal, defendant contends that he was not proved guilty beyond a reasonable doubt. For the reasons that follow, we affirm.
At trial, Chicago police officer Quadir Dawan testified that at 1:30 p.m. on December 13, 1994, he and his partner, Officer Weatherspoon, were seated in an unmarked car conducting a surveillance of possible narcotics transactions at 1534 East 66th Place. Approximately 20 feet away, defendant and his codefendant, Kern Haynes, were standing in a vacant lot. On two separate occasions, the officers observed an individual approach defendant, who walked a short distance and retrieved something from the ground. Defendant then returned to where the individual and Haynes were standing and handed something to Haynes. Haynes handed the object to the individual in exchange for cash.
After the second transaction, Officer Dawan called for assistance, whereupon two other officers apprehended defendant and Haynes. Officers Dawan and Weatherspoon then went to the location where they had observed defendant retrieve something from the ground. They recovered a wine bottle cap that contained seven clear, knotted plastic bags containing a white, rock-like substance, which was later determined to be cocaine. The officers also recovered $80 from Haynes. Although Officer Dawan inventoried the narcotics found inside the bottle cap, he did not inventory the $80 because of a general order exempting any amount under $135 from being inventoried.
During cross-examination, defense counsel asked Officer Dawan if he recognized a copy of the general order of the Chicago police department with regard to the inventory of property. Officer Dawan stated that he was not familiar with the general order because it was dated 1981, and the order he was familiar with was dated 1986.
The parties stipulated that if called to testify, forensic chemist Jamie Sea would have stated that the plastic bags contained 1.13 grams of cocaine.
Following the close of the State's case, the parties stipulated that the 1981 general order was in effect on December 13, 1994, and admitted the document into evidence. In closing argument, defense counsel noted that there was no limit on the amount of money to be inventoried in the general order.
The circuit court found defendant guilty of possession with intent to deliver. He was sentenced to six years' imprisonment. Defendant also pled guilty to violation of probation and was sentenced to a concurrent five-year prison term.
Defendant contends in this appeal that he was not proved guilty beyond a reasonable doubt because the facts were not sufficient to establish probable cause, much less guilt beyond a reasonable doubt. In arguing that, at the time that Officer Dawan called for a back-up unit to arrest him, the facts were insufficient to warrant any police action beyond an investigatory stop, defendant essentially challenges the propriety of his arrest. Because he failed to raise this issue in the circuit court, he is barred from raising it for the first time on appeal. People v. Enoch, 122 Ill. 2d 176, 185, 522 N.E.2d 1124, 119 Ill. Dec. 265 (1988). Moreover, our review of the record provides no basis for application of the plain error doctrine. People v. Mullen, 141 Ill. 2d 394, 402, 566 N.E.2d 222, 152 Ill. Dec. 535 (1990). Accordingly, defendant has waived review of the sufficiency of the facts supporting his arrest.
Waiver aside, the capacity to claim fourth amendment protection depends upon whether the police entered an area in which the defendant had a reasonable expectation of privacy, typically his person, home, or belongings. People v. Janis, 139 Ill. 2d 300, 313, 565 N.E.2d 633, 152 Ill. Dec. 100 (1990); People v. James, 163 Ill. 2d 302, 311, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). Under the "open fields doctrine," a person cannot claim a legitimate expectation of privacy in any unoccupied or undeveloped area beyond the immediate surroundings of his home. People v. Becktel, 137 Ill. App. 3d 810, 813, 485 N.E.2d 474, 92 Ill. Dec. 663 (1985). Here, because the cocaine that was the basis for his conviction was recovered from a vacant lot, defendant cannot invoke fourth amendment protection.
Defendant also contends that he was not proved guilty beyond a reasonable doubt because there was no evidence that he had knowledge and ...