Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois Nos. 98--CF--706, 97--CF--1026 Honorable John D. O'Shea Judge, Presiding
The opinion of the court was delivered by: Presiding Justice Homer
While on probation for a prior drug conviction, the defendant, Xavier Holliday, was charged with resisting a peace officer and unlawful possession of a controlled substance with intent to deliver in a drug-free zone. 720 ILCS 5/31--1, 570/401(c)(2), 407(b)(1) (West 1998). As a result of these charges, the State also filed a petition to revoke the defendant's probation. The defendant moved to suppress certain evidence at his trial and his probation revocation hearing. The court conducted a suppression hearing and denied the motion. Subsequently, in a consolidated jury trial and revocation hearing, the defendant was convicted of the charges and his probation was revoked. He now claims, inter alia, that his motion to suppress should have been granted because he was subjected to an illegal search. Since we agree, we reverse his convictions and his probation revocation.
Officer Landi's Testimony
At the suppression hearing, Officer Landi testified that he was driving a marked squad car on patrol with Officer Collins when they encountered the defendant. As they passed an alley, which took one or two seconds, Collins told Landi to stop because he had seen a drug transaction. Landi stopped the car and pulled into the alley, where he saw the defendant standing, with a bicycle, near Deborah Martin. He did not observe a drug transaction, but he recognized the defendant on sight. The defendant rode his bicycle toward the officers, and Collins began questioning him about what he was doing in the alley. The defendant said he was talking to his aunt. The defendant consented when Collins requested permission to search him. Landi then asked the defendant to get off his bicycle and place his hands on the squad car.
Although Martin was standing near the defendant, Collins and Landi did not detain her or request permission to search her. Landi testified that he was concerned with the defendant at the time. Landi said he was looking for crack cocaine or other drugs like marijuana. While searching the defendant, Landi performed a "crotch check" and felt an object he believed was a bag of crack cocaine. He said he recognized the object from his experience with drug dealers who had concealed cocaine "underneath the scrotum or around the genital area." Landi acknowledged that such concealment would require the drugs to be taped or otherwise attached to the subject's body. He said that the defendant's pants were loose and that he did not determine whether the defendant was wearing underwear.
During the search, Landi attempted to handcuff the defendant while announcing, "he has a bag of crack in his crotch." He testified that the defendant broke away and ran at that point. The officers chased the defendant into his house. Landi went upstairs but did not find the defendant.
Officer Collins' Testimony
Officer Collins testified that he was riding in the passenger seat of the squad car when he saw the defendant and Martin standing 50 to 60 feet away in the alley. He said he first believed the defendant was urinating because his pants were undone. However, he said he then saw the defendant "take his right hand and hand Martin an item, and then [take] an item from her and put it in his right pocket." He did not see what they exchanged, but he told Landi to stop the car because he had witnessed a drug deal. Collins acknowledged that only a few seconds passed between the time he saw the defendant and when Landi stopped the car.
According to Collins, the defendant was riding his bicycle southbound and Martin was walking southbound when Landi pulled into the alley. Collins asked him what he was doing, and he said he was talking to his aunt. Martin advised that the defendant was her son's friend. Collins did not ask her if she had participated in a drug transaction or request permission to search her. He testified that the defendant consented to a pat-down search for "drugs or weapons." Landi conducted a search and advised that the defendant had "rock cocaine in his pants." The defendant ran away as Landi attempted to handcuff him, and the officers chased him to his house.
When they entered the house, Landi went upstairs and Collins went downstairs. Collins testified that he entered the basement hallway and saw the defendant exiting a bathroom. The defendant put his hands in the air and said, "I've got nothing on me." Collins handcuffed him and searched the bathroom, finding a small bag of cocaine on a ledge at the top of the shower. At the time of the arrest, Collins knew the defendant was serving a sentence of probation.
The Defendant's Testimony
The defendant testified that while en route to get his hair cut, he stopped to talk with Deborah Martin, his friend's mother. He said he was riding his bicycle and was wearing jeans, socks, and shoes, but no shirt. After conversing with Martin, the defendant was stopped by police officers Jeff Collins and Richard Landi. Collins had previously arrested the defendant for possession of marijuana, although the ensuing charges were dismissed. He also recognized Landi. The officers had him place his hands on their squad car and performed a pat-down search. The defendant stated that he did not consent to the search. Collins recovered $10 from the defendant's pocket, and Landi grabbed his crotch. The defendant ran to his house after Landi announced that the defendant had something.
Upon entering the house, the defendant went into the basement and tried to locate his mother. He was sitting on his brother's bed when Collins entered the basement. He stood up and walked into the hallway, where Collins threw him against a ...