Appeal from the Circuit Court of the 13th Judicial Circuit LaSalle County, Illinois No. 00-CF-172 Honorable H. Chris Ryan, Jr. Judge, Presiding
The opinion of the court was delivered by: Justice Lytton
Defendant, Adam Rosenberg, was charged with controlled substance trafficking. His motion to suppress evidence was denied, and he was found guilty. We vacate the trial judge's order on the motion to suppress, remand for a new hearing on the motion and retain jurisdiction to determine the remaining substantive issues should the State prevail at the new hearing.
Rosenberg paid David Belmonte $9,000 to drive from San Diego, California to Boston, Massachusetts with twenty-eight cases of ketamine, a controlled substance, in the trunk of a car that Rosenberg rented.
While traveling through Illinois with the ketamine, Belmonte was stopped in LaSalle County for following another vehicle too closely. After giving Belmonte a warning, the state troopers who stopped him requested permission to search the vehicle. Belmonte consented. However, he told the troopers that he did not have a key to the trunk and the automatic trunk release did not work.
In order to gain access to the trunk, the troopers removed the back seat of the vehicle. They found a box in the trunk, slit it open and removed a vial of ketamine. The troopers then placed Belmonte under arrest, and Belmonte then offered them a key to the trunk, where they discovered the rest of the ketamine.
After several weeks in custody, Belmonte began to cooperate with authorities and revealed Rosenberg's part in the crime. Belmonte was given use immunity to testify against Rosenberg at a grand jury proceeding where Rosenberg was charged with controlled substance trafficking.
Prior to his trial, Rosenberg filed a motion to suppress the evidence against him. He subpoenaed Belmonte to testify at the hearing on the motion. The State refused to grant Belmonte immunity for the hearing. Therefore, Belmonte refused to testify.
At Rosenberg's trial, the State again granted Belmonte use immunity. Based in large part on Belmonte's testimony, Rosenberg was convicted and sentenced to eighteen years of incarceration.
On appeal, Rosenberg argues that 1) he was denied due process because the State refused to grant immunity to Belmonte to testify at the suppression hearing; 2) the court erred by denying his motion to suppress; 3) his conduct could not constitute trafficking within the meaning of the statute; and 4) the penalty provisions for bringing a controlled substance into Illinois with the intent to distribute it in another state are unconstitutionally disproportionate.
Rosenberg argues that he was denied due process because the State granted Belmonte use immunity before the grand jury and at trial, but denied him immunity at the suppression hearing.
Generally, decisions to grant immunity to a witness are left up to the prosecutor. See People v. Foster, 119 Ill. 2d 69 (2000). However, several federal courts have held that there are rare exceptions to this rule. These courts have reasoned that a failure to grant immunity violates due process where the government uses its powers to distort the fact finding process by causing a defense witness to invoke the fifth amendment or by refusing immunity to a witness who would directly contradict the government's witnesses. See, e.g., U.S. v. Whitehead, 200 F.3d 634, 640 (2000); U.S. v. Duran, 189 F.3d 1071, 1087 (1999); U.S. v. Westerdahl, 945 F.3d 1083, 1086 (1991). Though we are not bound to follow these courts, we find their reasoning persuasive. See Benjamin v. Board of Election Commissioners, 122 Ill. App. 3d 693, 697 (1984) (stating that though we are not bound to follow decisions of federal courts, we give them the weight merited by the persuasiveness of their reasoning).
In certain cases, it is possible for the State to abuse its power to grant immunity in such a way that a defendant will find it difficult, if not impossible, to effectively and meaningfully defend against the State's case. See Whitehead, 200 F.3d 634. We believe that this case is one of the narrow exceptions to the general rule. Here, the State granted use immunity to Belmonte when his testimony would be necessary to establish the case against Rosenberg, but refused to do so when it may have been helpful to Rosenberg. By this discriminatory application of its powers, the State caused Belmonte to invoke his fifth amendment right not to testify at the suppression ...