Appeal from Circuit Court of Champaign County No. 99CF701 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
MODIFIED ON DENIAL OF REHEARING
In December 1999, the trial court convicted defendant, Montel Avant, of possession of a controlled substance with intent to deliver (more than 1 gram but not more than 15 grams of a substance containing cocaine) (720 ILCS 570/401(c)(2) (West 1998)) and later sentenced him to four years in prison.
Defendant appeals, arguing that (1) the trial court erred by denying his motion to suppress evidence because the evidence was obtained during an illegal seizure, and (2) his conviction should be reversed because it was based, in part, on a police laboratory report (hereinafter lab report) admitted into evidence pursuant to section 115-15 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-15 (West 1998)), which the Supreme Court of Illinois declared unconstitutional in People v. McClanahan, 191 Ill. 2d 127, 140, 729 N.E.2d 470, 478 (2000). This court rendered an opinion affirming the trial court's judgment. People v. Avant, No. 4-00-1083 (June 20, 2001). Defendant filed a petition for rehearing. We now withdraw our opinion filed June 20, 2001, and by this opinion, reverse the trial court's judgment. We reverse.
Champaign police officer Mark E. Huckstep was the only witness to testify at the August 1999 hearing on defendant's motion to suppress evidence. Huckstep testified as follows.
In April 1999, he was a member of Champaign's community-policing unit and was assigned to the housing projects and surrounding area, which included North Fourth Street. He worked 9 a.m. to 5 p.m. shifts at that time.
Around 2 p.m. on April 29, 1999, Huckstep was patrolling the 900 block of North Fourth Street with his partner, Mary Bunyard, in an unmarked police car. Both officers were in uniform. Huckstep observed defendant, who was walking south on Fourth Street as Huckstep was driving north. Huckstep described his interest in defendant as follows: "I wasn't familiar with him. I [had] seen him around there the last few days, but I [had] never spoken to him before, so I wanted to get acquainted with him." Huckstep said that defendant "appeared to be hanging around in the 900 block" and did not appear to be intoxicated or under the influence of anything.
Huckstep turned off of Fourth Street onto East Eureka, parked on the side of the road, got out of the car, and approached defendant (who was still walking southbound on Fourth Street north of Eureka). Bunyard got out of the car and followed Huckstep, but she was "not too close" to him. She was about 10 feet behind Huckstep. Huckstep asked defendant if he could speak to him and defendant said, "yeah." Huckstep asked defendant if he had any identification. Defendant did not have identification on him but provided his personal information verbally to Huckstep. Huckstep then called in a warrant check, using the radio on his shoulder, and learned that defendant had no outstanding warrants. Huckstep then asked defendant if he had anything illegal on his person. Defendant said, "yeah, I have some rocks." Huckstep took that to mean "rock cocaine" and asked defendant to hand the rocks to him. Defendant reached into his left coat pocket, pulled out a bag, and handed it to Huckstep. Huckstep said that the police had received "a lot of complaints about high drug activity going on in that block for quite some time," and he had seen defendant hanging around in that area the few days previous.
The following colloquy occurred:
"Q. [ASSISTANT STATE'S ATTORNEY]: Your stopping of [defendant] was merely to satisfy your desire to ascertain his identity?
A. [HUCKSTEP]: Yes. When I stopped him was what I would consider to be a voluntary contact.
Q. But it was merely to ascertain his identity? It was pursuant to no other investigative function, correct?
A. I was not familiar with his identity, no.
Q. All right. And you weren't investigating any robberies, burglaries, or any other crimes where you might have been seeking the identity of any individual?
Q. So the fact that you'd seen this individual a couple of times before in [sic], in and of itself, is not suspicious, is it?
A. I would say in the block that he'd been hanging in, the way he had been hanging, yeah, it was suspicious.
Q. Well, you keep saying [']hanging.['] Can you describe that as any particular criminal or suspicious activity?
A. That's not criminal, no.
Q. Do you think that all young men who, as you say, just [']hang['] like [defendant] are under suspicion and should be stopped?
A. I'm not saying all men that hang should be stopped, but as a police officer it's my job to get acquainted with people especially in the community[- ]policing role. My job is to get out and deal with the public more."
On re-cross-examination, defense counsel queried ...