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12/01/97 PEOPLE STATE ILLINOIS v. FRANK EVANS

December 1, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRANK EVANS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 94 CR 27859. Honorable Stanley Sacks, Judge Presiding.

The Honorable Justice O'brien delivered the opinion of the court. Buckley, J., concurs. Campbell, P.j., specially concurs.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Following a bench trial, defendant, Frank Evans, was convicted and sentenced to a 25-year prison term for controlled substance trafficking and a 15-year concurrent term for possession with intent to deliver more than 30 grams of a substance containing a controlled substance. Defendant appeals, contending (1) the trial court erred by denying his motion to quash arrest and suppress evidence; (2) the trial court erred by denying his motion to dismiss the indictment; and (3) the State failed to prove him guilty beyond a reasonable doubt. We affirm.

At the hearing on the motion to quash arrest and suppress evidence, defendant testified that between 6 and 7 a.m. on October 13, 1994, he arrived at O'Hare airport on a flight from Las Vegas. Defendant got off the plane and proceeded to the baggage claim area, where he retrieved his two black suitcases and started to head for the exit.

Defendant testified that before getting out the door, a male officer and a female officer approached and showed him their badges. The male officer began talking to defendant, but the officer never told defendant that he did not have to answer or that he was free to leave. The male officer asked defendant why he was in Chicago, and defendant said he was there to visit a friend. The officer never asked where in Chicago the friend lived. The officer asked to see defendant's flight ticket, but defendant refused to produce it because he "didn't want to deal with [the officers]." The officer also asked for identification, but defendant said he did not have any identification.

Defendant testified the male officer then said he and his luggage were going to be detained, at which point another male officer walked up and joined the other two officers around defendant. Defendant testified he could not recall the officer telling him that his bag was being detained to allow a narcotics dog to sniff it, and he could not recall the officer telling him he was being detained so that the officers could obtain his identification.

Defendant testified the three officers started to walk defendant to another room. Before getting to the room, defendant turned and ran because he "didn't want to go with them." One of the male officers chased defendant, tackled him, and put him in handcuffs.

Defendant testified the three officers forced him into a small, private room in the airport and threw him onto a chair. The female officer struck him in the face, and one or more of the officers asked him for the combination of his suitcases, which he refused to give. The two male officers took his suitcases into an adjoining room, where they broke open the locks and recovered PCP. Defendant testified he never gave the officers permission to break open those locks.

Officer William Grant testified he was a Drug Enforcement Administration (DEA) agent assigned to O'Hare airport. On October 13, 1994, he and his partners, Officer Judy Martin and Special Agent James Stewart, were watching America West Airlines flight 701 as it arrived in Chicago from Las Vegas. Officer Grant explained that flight 701 is a late-night flight routinely used by drug-traffickers from the west coast.

Officer Grant observed defendant exit the plane. Defendant "looked like he didn't know what he was doing. He looked nervous as he was looking back and forth and up and down the concourse. He walked very slowly down the corridors."

Officer Grant and Officer Martin followed defendant and the other passengers to the baggage claim area, where defendant "was looking around the whole baggage claim area and continuously turning around and looking at the area where [Officers Grant and Martin] were standing." Defendant then approached the baggage carousel and claimed two large hard suitcases.

Officer Grant and Officer Martin approached defendant, identified themselves as police officers, and said they would like to ask him a few questions. Defendant said "o.k." Officer Grant then told defendant he was not under arrest and could leave at any time, but that he (Grant) would like to see defendant's plane ticket. Defendant responded that he did not have the plane ticket and that he must have left it on the plane. Officer Grant then asked defendant for some photo identification, but defendant responded that he had no identification with him. Officer Grant noticed at this time that defendant's hands were trembling and his voice was cracking.

Officer Grant asked defendant if he lived in Chicago, and defendant said "no," he was in Chicago to visit some friends. Officer Grant asked defendant where his friends lived, and defendant said he did not know. Officer Grant asked defendant how he was going to get to his friends' house if he did not know where they lived. Defendant said he did not know.

Officer Grant told defendant he was making a routine narcotics investigation and that defendant was still free to leave, but that he would like to ask defendant some more questions. Defendant said he would answer some more questions. Officer Grant asked defendant if the luggage he claimed at the baggage area was his and if he packed the luggage himself. Defendant responded affirmatively to both questions. Officer Grant also asked defendant if anyone had given him packages to carry to Chicago and if he was in possession of a large amount of narcotics or U.S. currency. Defendant responded negatively to those questions.

Officer Grant then asked defendant for consent to search his luggage. Defendant pulled a pack of cigarettes out of his pocket, and in a low voice said he did not know the combination to his suitcases. Officer Grant asked defendant how he was going to open the suitcases once he got to his friends' house, and defendant said he did not know.

Officer Grant told defendant he was going to detain defendant's luggage to allow a narcotics canine to sniff it for drugs. If the canine made a "positive hit" on the luggage, Officer Grant said he would get a search warrant and open it. Officer Grant also told defendant he was going to detain defendant until Grant could verify his identity. Officer Grant wanted the identification of defendant to ensure he was not wanted for any crimes and to get an address from him so that if the narcotic canines did not make a positive hit on the suitcases, Grant could send the suitcases back to defendant.

Officer Grant testified that up to this point, he had not touched defendant, placed handcuffs on him, or told him he could not leave. While Grant had been questioning defendant, Officer Martin stood next to Grant on his left-hand side. After Officer Grant told defendant he was being detained, Agent Stewart came over and asked for Officer Martin's assistance in speaking with another passenger. Officer Martin and Agent Stewart left for five minutes, during which time defendant sat down on one of the suitcases and lit a cigarette.

After Officer Martin and Agent Stewart returned, Officer Grant took one suitcase, Officer Martin took the other, and Agent Stewart and defendant followed them to an elevator about 15 to 20 feet away. They took the elevator downstairs and started walking toward the DEA office, which was approximately 150 yards from the elevator.

Soon after they all started walking toward the DEA office, defendant turned and ran in the opposite direction. Officer Grant and Agent Stewart chased defendant and caught him on an escalator about 50 to 75 yards from where defendant had first run from the officers. Two uniformed Chicago police officers helped Officer Grant and Agent Stewart secure defendant, and Officer Grant then handcuffed defendant.

Officer Grant, Agent Stewart, and defendant returned to where Officer Martin was standing with the suitcases, and then they all walked over to the DEA office. In the office, Officer Grant removed the handcuffs and put defendant on a chair. When defendant sat down, he told the officers they could look in the suitcases. Officer Grant asked defendant for the combination to the suitcases, and defendant said he did not have the combination but that the officers could go ahead and open the locks on them. Officer Grant forcibly opened one of the suitcases and found a five-gallon can covered in babypowder and surrounded by plastic bags and pillows. Officer Grant observed what he believed was PCP in the can, so he arrested defendant.

The trial court found the initial encounter between the officers and defendant was consensual and that a seizure occurred only when the officers told defendant they were detaining him and his bags. The court determined the officers "might" have had an articulable suspicion to detain defendant's bags based on his "odd" answers regarding his reason for being in Chicago and his expressed lack of knowledge regarding the combination to his suitcases. The court expressed concern whether the officers had reasonable suspicion to detain defendant. However, the court determined that the issue whether the officers had a reasonable suspicion to detain defendant and/or his luggage was "academic," because defendant had abandoned the luggage when he ran away ...


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