The opinion of the court was delivered by: Justice Cerda
Appeal from the Circuit Court of Cook County Honorable William Prendergast, Judge Presiding.
Defendant, Timothy Hampton, appeals from the denial of his motion to suppress evidence and from his convictions, after a jury trial, of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(C) (West 1994)), official misconduct (based on the possession offense) (720 ILCS 5/33-3(b) (West 1994)), and armed violence (720 ILCS 5/33A-2 (West 1994)).We affirm the denial of the motion to suppress. We vacate the conviction for armed violence because the single physical act of possession of cocaine was the basis for the convictions for armed violence and drug possession. We reverse the conviction for official misconduct because defendant did not use his status as a police officer to commit the drug possession offense. We affirm the conviction for possession of a controlled substance with intent to deliver. We remand the cause for resentencing because defendant was given a combined sentence for the armed violence and drug possession convictions.
The following summary of the evidence contains facts presented at the hearing on the motion to suppress and/or at the trial.
On March 8, 1996, at 10:40 p.m., Maywood police officer James Robinson received a dispatch to investigate an attempted armed robbery by a Hispanic man that had occurred recently at an apartment building on Third Avenue in Maywood. When Robinson arrived, defendant Hampton was the first to approach him. Defendant reported that someone tried to rob defendant's brother, later identified as Marlan Price, in the apartment building. Defendant gave a description of the alleged robber. Price then approached Robinson and also reported the robbery attempt.
Defendant walked away during Robinson's conversation with Price and went to one of the apartment building's entrances and frisked some men there. When Robinson came over to question what defendant was doing, defendant identified himself as a Chicago police officer, displaying a Chicago police department identification card, and said that the men in the entrance had been loitering. Defendant was not dressed in his uniform. According to Robinson's testimony, Price told Robinson that none of those men was the armed robber, but, according to defendant's testimony, Price pointed out a man named Fernando Casas as looking like the man who tried to rob him. After a conversation in which Robinson expressed concern to defendant over the danger of a police officer frisking five persons by himself, defendant and Price left. Robinson never doubted that defendant was a Chicago police officer.
Maywood police sergeant Jesse Ingram arrived after defendant left. Ingram and Robinson questioned the men defendant had frisked. Fernando Casas was Hispanic but was known to the police officers and was released. The rest of the men were unable to produce satisfactory identification and agreed to go to the police station. Stanley Polk was one of those men. Polk presented a Chicago police badge to Ingram, saying that defendant had dropped it. It was later determined that the badge was indeed defendant's. One of the men asked Ingram to secure the front door of an apartment that he had left open. Ingram complied, entering the building from the rear. Sometime around the time that Ingram was in the building, Maywood police officer Aaron Wade arrived, and as he drove up, he saw a brown Cadillac leaving the area.
While Ingram was in the apartment building, Robinson and Wade saw a Cadillac, which possibly was brown, park on the street a little north of the building. At this point only a few minutes had elapsed since defendant had left. Robinson did not observe the car's driver commit any traffic violations, but Wade observed that the headlights were off. It was later determined that the car was registered to Polk.
Robinson could not see the occupants of the car when it first arrived. Price exited the car from the passenger's side and began walking toward the rear of the apartment building. Although Robinson recognized Price as the alleged victim, Robinson radioed to Ingram that someone was coming up the back and that someone was in the car. After Ingram emerged from the apartment building, he saw that the car's windows were tinted and, for the safety of the police officers, he drew his gun and ordered Price to lie down on the sidewalk.
Ingram wanted to see who remained in the car. Robinson and Wade, and eventually Ingram, went over to the car. As Robinson approached the car, he saw that the driver was defendant. Robinson positioned himself on the driver's side. Defendant testified that he identified himself to Ingram as a Chicago police officer when Ingram walked up to the car. Ingram, who was standing at the passenger's side, asked defendant to exit the car. Defendant testified that he complied with Ingram's request to exit. Defendant stated "It's me," but there was conflicting evidence whether he said this before or after he exited the car. According to Wade and Ingram, defendant did not immediately step out of the car. Ingram testified that defendant responded to the request by rolling down the window partially and saying, "It's me," and that he then asked defendant to step out again.
Ingram testified that, once defendant exited the car, Robinson identified defendant as the police officer that Robinson had spoken about earlier. Robinson asked defendant if he had a weapon, but there was conflicting evidence as to whether that question was asked before or after defendant was asked to exit the car. Defendant answered that he did have a weapon and that it was on the front seat. Robinson testified that Wade, who was also standing next to the driver's side, entered the car through the passenger's side to retrieve the weapon after defendant exited the car.
Ingram testified that, after Wade entered the car, Wade stood back up and said, "There's drugs in here." At this point, Ingram felt that his "primary position" was "securing" defendant.Wade testified that defendant had left the car door open and that, as Wade stood outside the driver's door, Wade shined a flashlight into the car. Wade testified that from outside the car he saw a brown plastic bag in the car and that he could see that inside the bag there was cocaine contained in four bags, with each bag being a little larger than a sandwich bag. Wade testified that he said to defendant that the contents looked like cocaine and that defendant responded, "That is what it is--Let me tell you about it." Wade testified that he entered the car after defendant said the contents were cocaine. Wade testified that a portion of the bag was sticking out in front of the armrest and that the gun was under the bag.
Defendant testified that it was not until after Wade had entered the car and had opened the bag that Wade said that the contents looked like cocaine.
Ingram testified that, once the drugs were found, defendant stated that he was working some type of tactical operation. Defendant was handcuffed once it was determined that the bag contained cocaine.
The motion to suppress was denied. The trial court noted in its oral ruling that the police were investigating a violent crime, that defendant was out of his jurisdiction, and that the police had a right to be concerned as they approached the car because of defendant's weapon. The trial court found that the police looked inside the car with a flashlight and saw the cocaine before entering the car.
Steven Beadle, an assistant State's Attorney, testified at trial that defendant gave him a statement, which he put in written form. The statement admitted defendant's participation in the plan to have Fernando Casas arrested for attempted armed robbery. The statement differed from defendant's testimony in that it recited that (1) defendant gave a description of Fernando when he called the police; (2) defendant gave his badge to someone else (because Fernando was in the hallway and he told that person to get everyone out of the hallway); and (3) defendant had seen the cocaine when the police were approaching the car, as he put his gun on the armrest. Defendant denied having made the second and third statements.
Jack Wilk, an assistant State's Attorney who spoke with defendant, testified at trial that defendant told him that (1) Polk was a drug dealer; (2) Polk promised defendant $3,000 for his participation; (3) defendant knew that cocaine was involved in the transaction, but cocaine was not supposed to be in the car; and (4) once defendant got in the car, he saw the cocaine and recognized it.
Chicago police sergeant Robert Kero testified that defendant was a Chicago police officer but was not working on the date in question. However, Chicago police officers are considered police officers 24 hours a day and are presumed to be on duty 24 hours a day. Chicago police officers are required to take proper police action 24 hours a day, which could include making an arrest. Although defendant was not required to carry his weapon when off duty, defendant was authorized to carry the weapon.
Robinson testified that the street value of 496.3 grams of cocaine was about $50,000 and that the purity of cocaine affected its street value.
When Robinson was asked what a street dealer could do with cocaine that was about 81% pure, defendant objected on the basis that the question was a hypothetical, was based on speculation, and was irrelevant. The trial court ruled that the evidence was probative because one of the charges was possession of a controlled substance with intent to deliver. Robinson testified that 81% pure cocaine was high-quality and that a dealer could triple his money by cutting and doubling the cocaine. Robinson also testified that the amount retrieved from defendant would never be considered an amount for personal use but could be considered an amount for distribution and sale.
Gregory Bate, a forensic specialist with the Illinois State Police, testified that the total weight of the powder in the four bags was 496.3 grams. He performed tests on each bag and concluded that each bag contained cocaine.
Bate further testified that he performed a quantitative analysis on the first bag. Defendant objected on the basis that he had been provided no reports on the purity of the cocaine. The State asserted that there was a one-line report stating the purity of the cocaine was 81%. The trial court stated that the purity was "really somewhat remote as to the issues of this case" but granted defendant a few minutes to look at the report and to examine or talk to the expert. When Bate's testimony resumed, he testified that he tested only ...