Appeal from the Circuit Court of Winnebago County. No. 97--CF--2703 Honorable Robert G. Coplan, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Samuel L. Anderson, was charged with three counts of violating section 407(b)(1) of the Illinois Controlled Substances Act (the Act) (720 ILCS 570/407(b)(1) (West 1996)). The State appeals from the trial court's granting of defendant's motion to suppress physical evidence, alleging that the decision was manifestly erroneous. We affirm.
On November 26, 1997, defendant was charged by indictment with three counts of violating section 407(b)(1) of the Act. On December 18, 1997, defendant filed a motion to suppress physical evidence.
On January 20, 1998, a hearing on defendant's motion to suppress physical evidence was conducted. Officer Randy Berke testified that he was a Rockford police officer on November 7, 1997. He was on patrol with Officer Michael Clark in the 600 block of North Rockton Avenue at approximately 5 p.m. on that date. While on patrol, Officer Berke recognized defendant standing in front of 607 North Rockton Avenue. At that time, Officer Berke believed that defendant was wanted on a warrant. Officer Berke had observed defendant's warrant on the daily "squeal sheet" he received a few days prior to the arrest. Officer Berke acknowledged that defendant's name was not on the "squeal sheet" the morning of November 7. He did not recall having seen defendant's name on the November 5 or November 6 "squeal sheets."
Officer Berke and Officer Clark pulled up in their squadrol van and approached defendant. As they approached, Officer Berke observed defendant place an object into the upper left pocket of his jacket. Officer Berke stated that he could not ascertain if defendant had a weapon or contraband. The officers told defendant to place his hands on top of the vehicle. Defendant complied with the officers' request. The officers each held one of defendant's arms.
Defendant asked the officers why he was being stopped. Officer Berke responded that he believed defendant was wanted on a warrant. Defendant responded that he was no longer wanted for the warrant. Officer Berke attempted to verify whether there was an outstanding warrant for defendant and was informed that the computer system was down. Officer Berke said that due to a gesture defendant made he asked defendant if there was anything he should know about, such as weapons or sharp objects. Defendant responded negatively. Officer Berke asked defendant if he would mind if the officer checked, and defendant responded, "go ahead." At that point, Officer Berke searched the pocket that he observed defendant make the motion of putting an object into. Officer Berke located a prescription bottle in defendant's pocket. Officer Berke did not recall if there was a name label on the bottle. The bottle was brown in color but transparent. Officer Berke could see inside the bottle, and he then opened it. The bottle contained five pieces of an off-white, rock-like substance. In Officer Berke's experience, the items resembled drugs. Officer Berke confiscated these items, including a piece of tinfoil, commonly used for containing narcotics. No weapons were found on defendant. The entire incident lasted a couple of minutes. Officer Berke stated that he was concerned for his safety but that he did not know why he did not pat down defendant.
Officer Berke testified that it is common for defendants to say that warrants have been taken care of. Officer Berke stated that if there is a new warrant for an individual, it will be shown on the "squeal" sheet. If the warrant is not served within three weeks, the name will not appear every day. As the officers were pulling into the Public Safety Building, it was determined that there was no warrant for defendant.
Officer Clark testified that he was a Rockford police officer on duty November 7, 1997, at approximately 5 p.m., with his partner, Officer Berke. The officers observed and approached defendant in front of 607 North Rockton Avenue. As they approached, the officers observed defendant put something into his pocket. The officers believed that defendant was wanted on a warrant. The officers asked defendant to put his hands on the vehicle and asked defendant if he had anything on him, such as narcotics or needles, and defendant responded that he did not. Officer Berke asked defendant if they could pat him down and defendant responded, "go ahead."
Officer Clark testified that both he and Officer Berke believed there was a warrant for defendant, based upon seeing defendant's name on the "squeal sheet." Defendant's name was on the "squeal sheet" the last couple of days prior to the arrest. Defendant told the officers that there was no warrant. The officers were unable to ascertain if there was an active warrant because the computer was down.
Defendant put his hands on the vehicle pursuant to the officers' request. The officers held defendant's arms and handcuffed defendant after Officer Berke found the prescription bottle. Officer Clark did not recall if the bottle had defendant's name on it. Officer Clark stated that he was concerned for his safety because they had observed defendant put something into his pocket.
Defendant's mother, Mary Anderson, testified that on November 7, 1997, she lived at 607 North Rockton. Defendant came by her house that day, as she had custody of two of his children. She was sitting on her porch when defendant and his wife came by. She observed the policemen make a U-turn, and she heard defendant tell the officers that he had "got it vacated yesterday" and that the officers were "just picking on" him. She left the porch to see what was happening. At that time, defendant was handcuffed and the two officers were going through his pockets. She did not hear any of the prior conversation.
Defendant testified that on November 7, 1997, he was in front of 607 North Rockton at about 5 p.m. The officers pulled up, got out of the van, and handcuffed him, telling him that they had a warrant for his arrest. Defendant told the officers that the warrant had been vacated the day before. The officers each had him by an arm and were searching him. The officers did not ask defendant if they could search him.
Following arguments by counsel, the trial court denied defendant's motion to suppress physical evidence but noted that it would be willing to revisit the issue and commented:
"I don't think it's probable cause when you see somebody walking the street and you see an individual put something in his pocket that you can't identify. If the officer had said maybe that I can't be sure about that, it looked like a gun to me or something like that, but my recollection of the officer's [sic] testimony was that they couldn't tell what it was, and any of us can be walking down the street and say put keys in our pocket or people that still smoke could put a pack of cigarettes ...