Appeal from the Circuit Court of Du Page County. No. 99-CF-2544 Honorable Michael J. Burke, Judge, Presiding
The opinion of the court was delivered by: Justice Bowman
Following a stipulated bench trial, defendant, Amanda Welling, was convicted of unlawful possession of less than 15 grams of a controlled substance (cocaine) (720 ILCS 570/402(c) (West 1998)) and sentenced to 24 months of probation. Defendant appeals her conviction, arguing that the trial court erroneously denied her pretrial motion to quash arrest and suppress evidence (motion to suppress). Specifically, defendant argues that (1) the police unlawfully detained her prior to searching her, and (2) the police did not have probable cause to search her person.
Most of the essential facts related to the stop and search of defendant are not in dispute. Officer Michael Skopek of the Glendale Heights police department testified that on October 1, 1999, he was surveilling a residence at 77 East Armitage Avenue in response to a complaint that drug deals were taking place at the residence. In addition, Skopek was watching the house because one of its residents, James Targo, was wanted on an outstanding warrant. Skopek had received information from other officers that Targo was eluding the police by hiding in a blue Ford Aerostar minivan when he left the house.
When Skopek arrived at his surveillance location, he saw a blue Ford minivan parked on the street near the house. Soon thereafter he saw two females leave the house and enter the van. One of the women was carrying a large red bag. From his vantage point, Skopek could not tell which woman was carrying the bag.
Skopek followed the women in the minivan. He paced the minivan's speed with his squad car and stopped the minivan for going 35 miles per hour in a 25-mile-per-hour zone. Debra Reich was driving the minivan, and defendant was seated behind Reich in the second row of seats. The red bag was on the seat next to defendant. A large pile of clothes was on the floor of the van behind defendant. Skopek was not sure whether Targo was hiding under the clothes.
Skopek testified that Reich was "extremely nervous" when he approached her and asked for her driver's license. Skopek asked Reich to exit the minivan, which she did. At about this time, Officer C.J. Camel arrived on the scene to assist Skopek. Skopek asked Reich where she came from, and Reich said that she had picked up a friend from the Armitage address. Reich said that she was taking her friend (defendant) to a boyfriend's house to pick up some clothes and then they were going to get something to eat. Skopek asked Reich if she knew James Targo, and she denied knowing him.
Skopek then went to talk to defendant. He asked her where she and Reich were going, and defendant responded that she did not know. Next, he asked defendant whose bag was next to her. Defendant responded that she did not know and that it must belong to Reich. From briefly talking with defendant, Skopek ascertained that defendant was deaf. From then on, defendant and Skopek communicated by writing notes. Skopek asked defendant to exit the van because he wanted to separate her from the bag in case there were any weapons inside it.
After defendant denied knowing anything about the bag, Skopek went back to talk to Reich. He told her that he had been watching the house at 77 East Armitage in response to a drug dealing complaint and that defendant had said that the bag was not hers and must be Reich's. Skopek asked Reich for permission to search the van because he thought there might be drugs in the bag. Reich initially said she did not care if Skopek performed a search but then changed her mind. For about 10 minutes she vacillated between telling Skopek she did not care if he searched the vehicle and telling him that she did not want him to search it because she did not know what was in the bag. Skopek then told her that he was going to call in a canine unit to sniff the van.
Skopek requested that his department's canine unit come to the scene but was informed that the canine unit was not yet on duty. Skopek then called the Du Page County sheriff's department and asked for help from its canine unit. That canine unit, however, was not close by and would have taken a long time to get to Glendale Heights. Skopek then learned that his sergeant had called in the Glendale Heights canine unit to respond to Skopek's call.
During Skopek's conversation with Reich and the subsequent wait for the canine unit, defendant stood on the grass parkway between the sidewalk and the street. Officers Skopek and Camel told her that she could sit down while they were waiting. Defendant never asked if she was free to leave. The officers never told her that she was free to leave, but both officers testified that defendant could have left at that point if she had wanted to do so.
Before the canine unit arrived, Reich opened the door to the minivan, took the bag out, handed it to Skopek, and told him he could look in it. When Skopek looked inside, he saw various items of drug paraphernalia and white powder that appeared to be cocaine. Skopek did not field test the white powder. Skopek then directed Officer Camel to pat down defendant. Officer Camel found drugs on defendant's person. Reich was not arrested because the drug paraphernalia items in the bag were homemade or multiuse.
Officer Camel's testimony regarding the events leading up to the search basically mirrored that of Officer Skopek. Likewise, defendant's version of events did not differ significantly from the testimony given by Skopek and Camel. Defendant testified that the driver, whom she knew only as "Debbie," was not her friend. Defendant never consented to a search of her person and was never advised that she was free to leave.
There was some discrepancy in the testimony regarding how long defendant was detained before the search occurred. Defendant testified that between 15 and 30 minutes elapsed from the initial stop until she was searched. Skopek testified that about 30 minutes passed, and Camel stated that she ...