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June 30, 1997


Appeal from the Circuit Court of Cook County. No. 92 CR 14394. Honorable Marcus R. Salone, Judge Presiding.

Released for Publication August 5, 1997.

The Honorable Justice Cahill delivered the opinion of the court. Theis and S.m. O'brien, JJ., concur.

The opinion of the court was delivered by: Cahill

JUSTICE CAHILL delivered the opinion of the court:

Following a bench trial, defendant Joel Nwosu was convicted of controlled substance trafficking and sentenced to a 24-year prison term. He appealed, contending that the cocaine found in his apartment was inadmissible because the search was based on an anticipatory search warrant not then authorized by statute. He also argued the State did not prove that he knew cocaine was in the package delivered to him. We initially affirmed the cause in a published opinion, finding that the good-faith exception to the exclusionary rule applied to the search. People v. Nwosu, 284 Ill. App. 3d 538, 219 Ill. Dec. 858, 672 N.E.2d 366 (1996). Our analysis was based in part on the United States Supreme Court decision in Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), which applied the good-faith exception to a search conducted in reasonable reliance upon a statute later declared unconstitutional. Subsequent to our decision, the Illinois Supreme Court departed from the analysis in Krull and refused to apply the good-faith exception to a search based on a statute later found to be unconstitutional. People v. Krueger, 175 Ill. 2d 60, 221 Ill. Dec. 409, 675 N.E.2d 604 (1996). Pursuant to its supervisory authority, the court then vacated our decision and remanded the cause to us for reconsideration in light of Krueger. We again affirm.

The State's evidence showed that on May 22, 1992, a United States customs inspector found cocaine in a package from Lagos, Nigeria. The package was addressed to defendant at an address in Chicago. The cocaine was packaged in four plastic bags hidden in the false bottom of a cloth suitcase containing clothing and carved wood artwork. It was later stipulated that the cocaine weighed 467.45 grams and was 73.2% pure.

Detective Andrew Abbott prepared a complaint for a search warrant containing the above information. The complaint stated that the package would be delivered to defendant's apartment and that the search warrant would be executed only if the package was accepted. A judge issued the search warrant at 11 a.m. on June 9, 1992.

United States Customs Agent Glenn Edin testified that he posed as a DHL delivery man and made a controlled delivery of the package to defendant at 1:50 p.m. on June 9, 1992. Edin said defendant seemed anxious when he signed for the package and asked why it took so long to have the package delivered. Defendant told Edin he had called DHL and put a "trace" on the package. Edin left the apartment, then called defendant 20 minutes later claiming that he had given him the wrong receipt. Defendant was arrested when he left his apartment to exchange receipts.

Agent Edin testified that he went into defendant's apartment to photograph the evidence. Although he was not the first officer to enter, other officers were to keep the evidence in place until it was photographed. Upon entering the bedroom, he saw a suitcase with a false bottom that had been ripped out and peeled back, exposing United States currency, documents and the packages of cocaine. He took photographs of the suitcase and the apartment. Edin did not find equipment for using, packaging or weighing drugs, and defendant's fingerprints were not found on the packages of cocaine.

Detective Andrew Abbott testified he saw African design clothing and wood carvings thrown about the living room. On the bedroom floor he saw a suitcase with the bottom torn away. Abbott was shown People's exhibit No. 4, a photograph of the suitcase, and asked exactly how the suitcase appeared when he first saw it. Abbott stated, "It was lying on the floor with the top over exposing the entire suitcase and the false bottom was torn away from the bottom of the suitcase and it was lying in the suitcase opened like this revealing the clear plastic bags of white powder." He was then shown another photograph of the suitcase, People's exhibit No. 11, and asked if it accurately depicted the suitcase. He responded, "Not at first, no," and explained again that when he first observed the suitcase he could see the cocaine inside. A briefcase found in a closet contained $9,000 in United States currency. A photograph of the briefcase showed bundles of $20 and $10 bills.

Jerome Clemons, testifying for defendant, stated he was in the apartment when the package was delivered. He and defendant removed the clothing and artifacts from the suitcase, examined them for approximately 10 minutes, then placed them back inside. Defendant took the suitcase to his bedroom, where he remained for "like two seconds," before returning to the living room. At that time, defendant was called out of the apartment by the DHL delivery man. He returned a short time later accompanied by the police. Clemons did not see cocaine inside the suitcase and had never seen defendant with drugs.

Defendant testified he was born in Nigeria and has family there. He was a businessman who sold African clothing and artwork and was currently operating the business from his home. Defendant's sister periodically sent him clothing and artifacts from Nigeria, and he was expecting a shipment in June 1992. When the package did not arrive as expected, defendant called DHL and asked the company to put a "trace" on it. On June 9, 1992, a package containing a suitcase was delivered to his home. After he and Jerome Clemons examined the contents of the suitcase, defendant put it in his bedroom and immediately returned to the living room. He did not expect anyone to send him cocaine and did not see cocaine or anything else hidden in the suitcase.

In finding defendant guilty, the trial court questioned the credibility of defendant's testimony that he did not know anything was hidden in the suitcase, stating that the cocaine hidden inside weighed approximately 16 pounds. The court also stated that $10 and $20 bills are "denominations which are commonly found in the drug community." Later, in denying defendant's motion for a new trial, the court stated that defense witness Jerome Clemons testified defendant was in his bedroom with the suitcase for "at least one minute." The court then specifically found that the officers who entered the bedroom found the suitcase with the "false bottom exposed and the drugs visible." The court found Agent Eden's testimony credible and said it did not believe defendant.

Defendant contends that the evidence found in his apartment was inadmissible. He maintains that it was recovered during a search conducted pursuant to an anticipatory search warrant and that such warrants were not authorized by the statute in effect at that ...

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