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People v. Payton

December 01, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
OSMIN PAYTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 98--CF--1859 Honorable Herman Haase Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
OSMIN PAYTON, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 98--CF--1859 Honorable Herman Haase Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge

Defendant, Osmin Payton, was charged with unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1998)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(b) (West 1998)). He filed a motion to suppress evidence which was denied, and he was subsequently convicted on both charges. In this appeal, he claims that his motion to suppress should have been granted. We reverse his convictions.

 BACKGROUND

At a hearing on the motion to suppress, police officer Robert O'Dekirk testified that while on patrol he spoke with a confidential informant at around 7 p.m. on November 30, 1998. He knew the informant as "a signed-up confidential informant" who was "working off" charges and had provided officers with information leading to arrests. He had personally received information from the informant on two or three prior occasions. The information included a report that someone was selling drugs and a description of where the drugs were hidden.

On the night in question, the informant told O'Dekirk that a black male wearing a bright yellow jacket was selling drugs from the porch of a house on Collins Street directly south of Church's Chicken. The house was one or two blocks from the location where the informant spoke with O'Dekirk. He did not provide the suspect's age or specify the type of drugs involved. O'Dekirk asked if the suspect had the drugs inside his mouth or pockets, and the informant said he believed they were hidden somewhere on the porch.

O'Dekirk and his partner drove to the house and saw a person (defendant) who matched the informant's description sitting on the porch steps with another person (Fred Northington). The house was converted into a two-flat apartment building, and the porch was not enclosed. O'Dekirk testified that the porch resembled a "standard deck."

The officers pulled their squad car onto the front sidewalk and approached the porch to speak with defendant. They had not observed any drug transactions. O'Dekirk's partner stood in front of defendant and Northington and began asking them general questions. Meanwhile, O'Dekirk walked up onto the porch and began looking for areas where drugs could be hidden. The only item of personal property he noticed on the porch was a barbeque grill. When defendant saw O'Dekirk approach the grill, he appeared "excited or scared" and tried to run inside the apartment. He said he wanted to get his mother, but O'Dekirk told him to sit down. O'Dekirk then lifted the cover off the grill and observed a bag filled with cocaine and another bag containing four smaller bags filled with cannabis. He had not smelled any cannabis burning or food cooking on the grill.

Defendant was arrested and advised of his Miranda rights. His mother exited the house and told the officers she owned the grill. She became agitated with defendant upon learning why he was arrested. At 7:50 p.m., defendant signed a form acknowledging that he had been advised of his rights and wished to speak to the police. He then told O'Dekirk and his partner that he was selling cannabis but did not know about any cocaine in the grill. O'Dekirk testified that defendant appeared to understand the officers' questions and never asked for an attorney or expressed a desire to remain silent. He further testified that he did not threaten, harm, or force the defendant into making a statement.

O'Dekirk's partner offered similar testimony. He added that he did not fear for his safety during the encounter with defendant.

Defendant testified that he was 17 years old on the night in question. His family lived in one of the apartments in the building and the other apartment was unoccupied. He said the officers pulled up onto the grass and immediately came to the porch. They asked for his name and inquired regarding who lived in the building. Defendant asked if he could get his mother, and the officers said no. He testified that he "went for the door" when O'Dekirk stepped up onto the porch. He said O'Dekirk handcuffed him, placed him in the squad car, and then searched the grill. He did not give the officers permission to come onto the porch or search the grill. He was advised of his Miranda ...


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