The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 90806-Agenda 6-January 2002.
The defendant, Marilyn Love, was charged with possession of a controlled substance with intent to deliver after two Chicago police officers found 16 small plastic bags of rock cocaine in her mouth. During a bench trial in the Cook County circuit court, the defendant made an oral motion to suppress the cocaine. The trial court denied the defendant's motion and ultimately convicted the defendant. The appellate court reversed the trial court's ruling on the defendant's suppression motion and reversed her conviction. 318 Ill. App. 3d 534.
The issue before us is whether the police officers had probable cause to arrest and search the defendant. We reverse the appellate court and reinstate the defendant's conviction.
At trial, Chicago police officer Olson was the State's only witness. On direct examination, Officer Olson testified that on January 29, 1999, he and his partner, Officer Retner, were conducting narcotics surveillance in a residential area on Chicago's west side. Around 1:50 a.m., Officer Olson, looking through binoculars, saw the defendant in front of an apartment building. Nearby, he saw a man approach a person on a bicycle and give that person some currency. The person on the bicycle then directed the man toward the defendant. According to Officer Olson, the defendant then "removed an item from her mouth and handed it to that individual." Officer Olson and his partner "approached and detained" the defendant and "asked her to spit out some objects in her mouth." The defendant complied, and Officer Retner recovered from the ground an object which looked like a roll of clear tape with 16 small plastic bags stuck to it. The officers believed the bags contained crack cocaine.
On cross-examination, Officer Olson testified that, during his 10-minute surveillance, the person on the bicycle circled between 25 feet and 300 feet from the defendant. Officer Olson stated that he saw the man hand money to the person on the bicycle, but he did not see what the defendant handed to the man. Officer Olson did not stop the person on the bicycle or the man. As he approached the defendant, Officer Olson could not see what she had in her mouth. According to Officer Olson, "We asked her, I believe it was her name, and she had difficulty answering it. At that time I told her to spit out what she had in her mouth, and she did." Officer Olson did not know the defendant had drugs in her mouth until she spit them out.
The defendant's attorney then made an oral motion to suppress, asserting that the information in "the transcript" somehow conflicted with Officer Olson's testimony. In response, the State summarized the police officers' observations. The officers saw the man give currency to the person on the bicycle; they saw the person on the bicycle point the man toward the defendant; and they saw the defendant give the man an object out of her mouth: "Upon that they approach. Upon that they had probable cause to approach." The trial court asked the defendant's attorney if he wanted to present additional evidence in support of this motion; the defendant's attorney answered no. The court ruled:
"At some point [Officer Olson] approached the defendant *** and that while conducting in essence at that point an initial Terry stop or field interview or questioning, which is allowed and codified under the Illinois Criminal Code, *** noticed she had some difficulties answering it because something was in her mouth and asked her to spit the items out. I suppose arguably so he can continue on with the questioning from the temporary detention.
At that time he observed what he believed to be contraband which was recovered. The court does not believe there's any 4th Amendment violation. So the motion to suppress evidence based upon that lack of probable cause will respectfully be denied."
The parties stipulated that the plastic bags contained cocaine. The defendant then testified in her own defense. Her version of the events which led to her arrest differed wildly from Officer Olson's version. The defendant stated that a police officer grabbed her from behind and asked her some questions. According to the defendant, another officer hit her in the face and told her to open her mouth. The officer never asked her spit out what was in her mouth; "he just told me to talk." The defendant never saw the police officers recover anything from the ground. She asserted that she did not possess or sell drugs on January 29, 1999. In rebuttal, the State offered evidence of the defendant's 1997 conviction for delivery of a controlled substance.
The court accepted Officer Olson's testimony, rejected that of the defendant, and found her guilty. The defendant then filed a motion for a new trial, in which she reargued her motion to suppress. The trial court denied this motion, stating:
"This was not a situation where the officers approached and arbitrarily searched the defendant recovering contraband. Which might cause some concern with regard to [the] search issue. But the officers observed what they believed to be criminal activity afoot. That being the narcotics transactions and approached to do basically a Terry stop or field investigation.
And when they attempted to speak to this defendant, they were unable to because she had something in her mouth. They did not indicate that they let-that that substance was a controlled substance and ordering to be produced, even ...