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June 20, 1997


Appeal from the Circuit Court of Kane County. No. 95--CF--2645. Honorable Barry E. Puklin, Judge, Presiding.

Released for Publication July 18, 1997.

The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

The State timely appeals (145 Ill. 2d R. 604(a)(1)) from the trial court's order of July 10, 1996, granting the motion of defendant, Jeffrey R. Drake, to quash arrest and suppress evidence. The State filed a certificate of impairment. Defendant was indicted for unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994)), unlawful possession of cannabis (more than 30 but not more than 500 grams) (720 ILCS 550/4(d) (West 1994)), and possession of a firearm without having in his possession a firearm owner's identification card (430 ILCS 65/2(a) (West 1994)). The State contends that the trial court's order, premised on its finding that there was no probable cause to arrest defendant, is manifestly erroneous. We affirm.

Defendant has not filed a brief, and we therefore consider this appeal under the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976). At the hearing on the motion, defendant testified that, on December 20, 1995, at about 11 p.m., he was a passenger in the front seat of a car traveling on the east side of Aurora. The vehicle was stopped by two plainclothes police officers. To his knowledge, defendant was not violating any law. There were three people in the car. The occupants were asked to get out of the car, and they did so. The police spoke with the driver and then began searching the car and the trunk while another officer stood outside with the occupants. Defendant saw the police remove some things, including a backpack, from the trunk. The officer standing next to defendant said nothing at this time, but he placed defendant and the others under arrest after the other officer came back and said, we got 'em.'" The occupants were handcuffed and transported to the county jail. Defendant stated there was no warrant for his arrest.

Over defendant's objection, the prosecution was allowed to cross-examine him regarding his whereabouts earlier that evening--subject to tying up the testimony to the relevant issue. Prior to the stop that night, defendant went to 1021 Grove Street in John Goodman's car, arriving at about 10:45 or 10:50 p.m. Defendant went into the house to use the bathroom, returned to the car, and left. Even earlier that evening, defendant had been at Goodman's house at 1021 Grove Street with Goodman, Bryan Vandenplum, and another man named Hawkins. Defendant did not know when the backpack was brought in, although he saw it in the house. The prosecutor asked, "And Mr. Vandenplum remove [sic] some cannabis from the backpack?" Defendant replied, "He--he had brought out a joint. We had smoked a joint at John Goodman's house." (It is unclear from this colloquy whether defendant was saying he saw Vandenplum remove the cannabis from the backpack.) When defendant was again specifically asked if he saw Vandenplum take the rolling papers and cannabis out of the pack at that time, defendant replied, "No." Defendant did not remember seeing a weapon. At the request of Vandenplum, defendant brought the backpack outside and handed it to Vandenplum who placed it in the trunk. Defendant stated he knew there was a backpack in the trunk of the car. When defendant was again asked if he recalled whether cannabis came out of the backpack or whether he saw a gun, he said, "No" and added that there were a lot of people in the house.

The court sustained defendant's objection when the prosecution next attempted to use defendant's statement to the police after his arrest and pursue a line of questioning based on that statement. The court found that this line of questioning was irrelevant for the purpose of the hearing, as the issue concerned what the officer knew at the time of the stop. The defense rested.

The State examined Patrick Perez, a deputy sheriff. Deputy Perez was involved in investigating gang and drug activities. He was patrolling the east side of Aurora that evening with Deputy Williams. They observed a vehicle registered to Goodman enter the driveway of Goodman's house at 1021 Grove Street. Goodman's vehicle was followed by a second vehicle registered to Bryan Vandenplum. Perez believed it was 10 p.m. Everyone exited the vehicles and went into Goodman's house. About 20 minutes later, Vandenplum's vehicle left. The officers stopped the vehicle on Front Street because the license plates had expired and the registration light was not operating. The officers recognized the passenger in the front seat of this car as the same person who was a passenger in a vehicle stop made two weeks earlier on East Galena. He was then the passenger of a different vehicle in which John Goodman and Jason Reed, both Vice Lord gang members from Aurora, were present.

Deputy Perez stated they knew the passenger had a Vice Lord affiliation and the house they had just left was known as a Vice Lord house. It had been raided by the Aurora police several times in the last three or four years. Deputy Perez did not know what resulted from those raids. The deputies asked the occupants of the car to exit the vehicle so they could pat them down for weapons. An informant had given the deputies information that Goodman was smuggling weapons. The patdown produced no weapons. Hawkins, the backseat passenger, and defendant, the front seat passenger, were instructed to stand by Deputy Williams near the front of the squad car. Deputy Perez talked to Vandenplum, the driver, who gave them permission to search the car. Deputy Perez found a pack of rolling papers on the floorboard of the driver's side, but found nothing else in the compartment of the car. Deputy Perez found the electric trunk release and opened the trunk to continue his search. In the trunk, he discovered a closed, green vinyl backpack which contained a .22-caliber Derringer that had been reported stolen. Deputy Perez felt the gun through the soft vinyl. When he unzipped the bag, he found two bags of marijuana that appeared to weigh one ounce each, $3,100, and the gun. The three suspects were arrested, handcuffed, and transported to the county jail. On cross-examination, Deputy Perez stated he could not see into the backpack. He opened it after he felt the gun on the bottom. He did not have a warrant for defendant's arrest, and he knew that the vehicle was not registered to defendant.

The trial court concluded that the facts did not show in any way "that the officers could have picked up on that this particular passenger was in constructive possession" of the contraband. The officers had to open the trunk lid to get to it. They had no knowledge of what had transpired regarding the backpack prior to the arrest. The court granted defendant's motion, and the State filed this appeal. The legality of the stop and the search are not at issue before this court. We consider only the trial court's decision finding that there was no probable cause to arrest defendant. The State first argues that, as the movant, defendant did not make out a prima facie case that would have shifted the burden of proof to the State. The State further argues that the evidence overall was sufficient to establish joint and constructive possession of the backpack and to provide probable cause for defendant's arrest. We disagree.

A trial court's decision to suppress evidence will not be overturned on review unless that decision is clearly erroneous or against the manifest weight of the evidence, that is, unless the opposite conclusion is clearly evident. People v. Lukach, 263 Ill. App. 3d 318, 323, 200 Ill. Dec. 714, 635 N.E.2d 1053 (1994). When the police arrest a person without a warrant, the trial court making the determination of probable cause must apply standards at least as stringent as those that guide a magistrate in deciding to issue a warrant. People v. Tisler, 103 Ill. 2d 226, 236, 82 Ill. Dec. 613, 469 N.E.2d 147 (1984).

In Illinois, a warrantless search or seizure is deemed unreasonable per se unless it comes within a specific, well-delineated exception to the warrant requirement, such as probable cause, and the ultimate test of the constitutionality of a seizure is reasonableness. People v. McGee, 268 Ill. App. 3d 32, 40, 205 Ill. Dec. 883, 644 N.E.2d 439 (1994). Thus, a warrantless arrest will be deemed lawful only when probable cause to arrest has been proved. People v. Robinson, 167 Ill. 2d 397, 405, 212 Ill. Dec. 675, 657 N.E.2d 1020 (1995). Probable cause to arrest exists when the totality of the facts and circumstances known to the officer at the time of the arrest would lead a reasonable, prudent person, standing in the shoes of the officer, to conclude that a crime has been committed and the defendant was the person who committed the crime. Robinson, 167 Ill. 2d at 405; People v. Montgomery, 112 Ill. 2d 517, 525, 98 Ill. Dec. 353, 494 N.E.2d 475 (1986). Something more than a mere hunch or suspicion is required, and the determination is governed by commonsense considerations and the probability of criminal activity rather than proof beyond a reasonable doubt. People v. Paarlberg, 243 Ill. App. 3d 731, 734, 183 Ill. Dec. 849, 612 N.E.2d 106 (1993).

In a motion to quash or suppress, the initial burden of proof is on the defendant. People v. Bobiek, 271 Ill. App. 3d 239, 241, 207 Ill. Dec. 704, 648 N.E.2d 160 (1995). Once the defendant submits evidence which shows that, at the time of the arrest, he was doing nothing unusual (i.e., his conduct was not indicative of the commission of a crime) and he was arrested without a warrant, the defendant has made a prima facie case that the police lacked probable cause. The burden then shifts to the State to show that the warrantless arrest was based on probable cause; in other words, the State must demonstrate that the police had reasonable grounds to believe that the defendant had committed a crime. People v. Garcia, 94 Ill. App. 3d 940, 942-43, 50 Ill. Dec. 434, 419 N.E.2d 542 ...

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