Appeal from Circuit Court of Vermilion County
The opinion of the court was delivered by: Justice Green
Honorable Thomas J. Fahey, Judge Presiding.
Following a bench trial on October 29, 1996, defendant, Willie J. Cox, was convicted of possession of a controlled substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c) (West 1994)). He was subsequently sentenced to 30 months' probation, conditional upon serving one year in jail, to run concurrently with a nine-month jail term in Vermilion County case No. 96-CF-560. Defendant appeals, contending (1) the trial court erred in denying his motion to suppress the cocaine found in his possession and (2) he is entitled to a $5-per-day credit against his $400 fine. We reverse.
On March 29, 1996, defendant was arrested for possession of a controlled substance. On July 31, 1996, defendant filed a motion to suppress evidence of cocaine seized from his possession. The motion alleged that on March 29, 1996, he was detained by the police, searched without a warrant or probable cause, and, as a result, cocaine was illegally seized.
At the hearing on the motion to suppress, defendant testified that (1) on the day in question, he was in the "Pizza Inn" parking lot on Oak and Williams Streets, about to use the telephone, and wearing a short-sleeved green shirt with "blue-checkered spots" when two police officers approached him; (2) the officers told him to put his hands on the squad car; (3) he put his hands on the car; (4) the officers started checking his pockets, he asked them what he was being arrested for, and they told him about a purse snatching; (5) sometime after he had his hands on the squad car, he retrieved cocaine from his pants' pocket in an attempt to throw it on the ground; (6) the police seized the cocaine from his hand; (7) one of the officers noted he was not out of breath; (8) he denied running prior to the officers approaching him and claimed he had just awakened and had come outside; and (9) he is 6 feet 3 inches tall and weighs 210 pounds.
City of Danville police officer James Smutz testified (1) he received a dispatch report of a robbery in the new library parking lot at Seminary and Vermilion Streets; (2) the suspect was described as a black male, wearing a blue, short-sleeved shirt, approximately 5 feet 8 inches tall; (3) near the library on Franklin and Seminary, a man sitting in his backyard told Smutz he had just seen a black male in a blue shirt running westbound on Seminary Street; (4) Smutz proceeded westbound on Seminary for one block, turned north on Oak Street, proceeded one block to Williams Street, and observed defendant in the parking lot of the "Pizza Inn" (three blocks west and one block north of the library parking lot); (5) between the time he began his search and found defendant, he had not seen any other black males wearing a blue shirt; (6) he and Officer Dicken approached defendant and told him to put his hands on the squad car; (7) defendant inserted his left hand in his left front pants' pocket and pulled something out while maintaining a fist; and (8) Smutz grabbed defendant's left arm, defendant opened his fist, and inside was a clear, plastic bag containing what appeared to be three rocks of crack cocaine.
Officer Smutz stated he could not recall if he told defendant they had to search him for evidence of the stolen wallet before defendant placed his hand in his pocket. Officer Smutz subsequently acknowledged that his testimony at the grand jury hearing one week after the arrest was that they stopped defendant, and before defendant pulled the cocaine out of his pocket:
"[He] explained to [defendant] why [he] stopped him [a]nd told [defendant] that [he] would have to check him for anything that may have been taken from the wallet and take him back to the library for a show up.
When we told him that we had to check him[,] he immediately threw his left hand into his front pants pocket and we helped him bring it out."
Officer Smutz further testified at the hearing that defendant was wearing a blue and green shirt at the time of the arrest, but he did not recall the pattern of the shirt other than it contained as much blue as it did green.
Based on the foregoing evidence, the trial court found that the police could lawfully detain defendant and determine whether he had any connection with the wallet theft. The court concluded that defendant's action in retrieving the cocaine from his own pocket was an "intervening cause" that resulted in the discovery and seizure of the cocaine. The court denied the motion to suppress.
A bench trial was held on October 29, 1996. Officer Smutz was the only witness to testify and his testimony was essentially the same as it was at the suppression hearing. Office Smutz explained that he and Officer Dicken approached defendant, "gave him a brief account of why [they] were there, that there had been a theft in the area and asked him to put his hands on Officer Dicken's car." According to Smutz, defendant "immediately threw his left hand into his front pants pocket and pulled it out maintaining a fist." The officers then found the bag of cocaine within defendant's left hand. The officers placed defendant under arrest for possession of a controlled substance and brought him to the library for a "show up" to determine if he was the individual who stole the purse. ...