Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois, No. 00--CF--129 Honorable John Clerkin, Judge Presiding.
The opinion of the court was delivered by: Justice Slater
Defendant Ricardo O. Perkins was charged with possession of cannabis (720 ILCS 550/4(d) (West 2000)). He filed a motion to suppress evidence, which the trial court denied. Following a stipulated bench trial, defendant was convicted as charged. On appeal, defendant argues that the trial court erred in denying his motion to suppress. We reverse.
At the suppression hearing, Officer Robert Bay of the Western Illinois University police department testified that he received information from a confidential source concerning Vaughn Reid. According to the informant, Reid would travel from Chicago to Macomb, Illinois, by train on September 11, 2000, with drugs in his possession. Reid was described as a 33-year-old black male with a light beard, 6'2" tall and weighing about 280 pounds. He was also known as "Debo." The informant related that Reid might be accompanied by a female, who would be the courier for the drugs. Bay and nine other members of a drug interdiction team planned to intercept Reid when he arrived in Macomb. The officers had an old photograph of Reid, and they verified that Reid was not at his residence in Macomb on September 11. That evening, two plainclothes officers boarded the train from Chicago in Galesburg and observed defendant in the company of a black female. Defendant, a 22-year-old student, was 6'2" tall, weighed about 300 pounds and resembled Reid.
When the train arrived in Macomb, defendant disembarked and walked across the street to the university bus. The officers on the train pointed out defendant to Bay and the officers waiting at the train station. Bay and Agent Paul Larson followed defendant, while the rest of the team pursued his female companion. Defendant boarded the bus, flanked by Bay and Larson. Before defendant found a seat, the officers asked him to step off the bus because they needed to talk to him. Defendant asked Bay who he was. Bay identified himself as a police officer and produced his badge. Defendant then complied with the officers' request.
In a parking lot adjacent to the bus stop, Bay, Larson, Officer Pat Frazier and possibly one other officer questioned defendant. Bay and Larson displayed badges, and Bay asked defendant for his name and identification. Defendant said his name was "Rich Stevens," and denied that he had any identification. Bay ran an identification check for a Western University student named "Rich Stevens," which came back negative. Bay again asked defendant for identification. Defendant then produced an Illinois identification card from his backpack, which showed his correct name and date of birth.
While Bay was verifying the information on the card and obtaining a police record report for "Ricardo O. Perkins," Larson and Frazier engaged defendant in a discussion concerning his backpack. Larson asked whether defendant had packed the bag himself, and defendant acknowledged that he had. Larson asked whether there was anything in the bag that should not be there, and defendant said he did not think so. Larson asked if he could look inside the bag, and defendant handed it to Larson. When Larson unzipped the pocket, he smelled marijuana. Defendant then admitted that he had brought "a little weed to smoke." A bag containing approximately 81 grams of marijuana was removed from the backpack, and defendant was placed under arrest. Bay testified that he did not hear the discussion taking place between Larson and defendant while he was on the telephone verifying defendant's identification. He said he learned that defendant had a prior police record but no outstanding warrants.
Defendant's version of the encounter varied slightly from the officers' account. Defendant said the first name he gave to Bay was "Richard Spencer." He said that Bay was the only officer who showed him a badge. He said that while Bay was verifying information from his identification card, Larson grabbed the backpack and said he was going to take a look in it. Larson asked defendant if he had any weapons or drugs in the bag, and defendant said, yes, he had a some "weed." Larson then opened the bag, found marijuana and arrested him. Defendant said he weighed about 320 pounds on the date of the arrest.
Following arguments of counsel, the trial court denied defendant's motion to suppress evidence. The court found that defendant bore a sufficient resemblance to Vaughn Reid to give the officers "reasonable suspicion" when they saw defendant on the train. The court also stated that there was "reasonable suspicion to proceed" based on defendant's providing two different names when the officers asked for identification. Finally, the court found that defendant gave Larson consent to search his bag.
Defendant was subsequently convicted of unlawful possession of cannabis and sentenced to probation.
On appeal, defendant challenges the trial court's ruling on his motion to suppress. He argues that (1) the police lacked sufficient information based on the informant's tip to conduct a Terry investigation; or (2) even if the arresting officers had reasonable suspicion sufficient to conduct a Terry investigation to determine if he was Vaughn Reid, the search of his backpack was unlawful. In response, the State argues that the encounter was consensual and defendant was not "seized" for fourth amendment purposes until after Larson detected the odor of marijuana, at which point Larson had probable cause to arrest. In the alternative, the State argues that, assuming a Terry stop occurred, it took place after defendant gave false identification which provided a reasonable suspicion that defendant was involved in criminal activity. Finally, the State contends that the search of defendant's bag was valid because it ...