Appeal from the Circuit Court of Cook County. No. 98 CR 324 (01) Honorable Joseph G. Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Following a bench trial, defendant Miguel Fernandez was convicted of cannabis trafficking and possession of cannabis with the intent to deliver, and was sentenced to 12 years in prison. On appeal, he contends that (1) the trial court erred in denying his motion to suppress evidence because he did not knowingly and voluntarily consent to the search of his luggage; and (2) the trial court erred in denying his motion to dismiss the indictment due to the State's destruction of evidence. For the following reasons, we affirm the judgment of the circuit court.
Defendant's conviction arose from his November 26, 1997, arrest at Midway Airport where Drug Enforcement Administration (DEA) agents found approximately 20 kilograms of drugs in his suitcases. Prior to trial, he filed a motion to quash arrest and suppress evidence, claiming that he did not knowingly and voluntarily consent to the search of his luggage. At the hearing, Agent Antonio Smith testified that he approached defendant outside the airport terminal along with Officer Howard Small. Speaking in English, they identified themselves as police officers and asked to talk with defendant regarding his travels. Defendant agreed to speak with them. Agent Smith requested defendant's plane ticket and identification. In response, defendant produced a copy of his plane ticket receipt, a California driver's license, and an alien registration card with a photograph of himself. When Smith asked him if anyone gave him any gifts or packages to bring to Chicago, defendant replied, "no." When asked how long he was going to be staying in Chicago, and with whom he would be staying, defendant replied that he did not know.
Agent Smith then asked defendant a series of questions about his luggage. He asked defendant whether he packed his bags himself and whether he knew the contents of his bags. Defendant replied "yes" to both questions. Smith asked defendant if he would give consent to search his bag and told him that he would be looking for large amounts of narcotics or narcotics related currency. According to Smith, defendant looked down to the ground, looked back up at Smith and replied "yes." According to Smith, defendant's hands were visibly shaking and his voice was cracking.
Agent Smith testified that one of the suitcases presented in court at the hearing had a lock on one of the zippers. He did not observe the condition of the lock mechanism at the time the luggage was outside the airport terminal, could not recall whether defendant had a key, and stated that Officer Small did not have any difficulty opening the suitcases.
Defendant testified that he was born in Mexico, was a permanent resident alien, living in the United States since 1995, and had no formal education in English. According to defendant, he told the police he did not understand everything that they were asking him. He told them that the suitcases were in his possession, but that they were not his suitcases, and stated that the police opened the luggage without his permission. Defendant further testified that the luggage had a lock on it, that he did not have the key to the lock, and that the officers forced the suitcases open. Defendant denied being nervous when he spoke to the officers. Based upon the testimony presented, the trial court denied the motion to suppress evidence.
Prior to trial, defendant filed a motion to dismiss the indictment, due to the police evidence recovery and protection section's (ERPS) destruction of two of the three suitcases. He argued that the destroyed evidence was necessary to establish his defense that he did not knowingly possess the drugs. The trial court denied the motion to dismiss, finding that the suitcases were not the corpus delicti of the offense and that the State had sufficient evidence with which to prove its case.
The following relevant evidence was then produced at a bench trial. Defendant was seen boarding a Southwest Airlines flight in California on November 26, 1997, and aroused the suspicion of Agent Danielle Claude of the DEA. According to Agent Claude, defendant was carrying three heavy suitcases that smelled like laundry detergent and paid cash for his ticket to Chicago. Claude then gave Agent Smith this information as well as a description of defendant and the bag tag numbers for defendant's three suitcases. Smith testified that he followed defendant to the baggage claim area and saw him claim three bags. He approached defendant with his partner, Officer Small, and questioned defendant. Agent Smith testified consistently with his testimony at the hearing on the motion to suppress evidence.
Additionally, Smith stated that defendant told him that he packed his suitcases himself and that they only contained his clothing. When asked if anyone had given him any gifts or packages to bring to Chicago that he did not know the contents of, defendant replied "no," and again stated that the luggage only contained his clothes. When Smith asked permission to search his luggage, defendant again stated that it contained only clothing. According to Smith, defendant then gave him verbal consent by stating that it was okay to search his suitcases. Smith confirmed that the bag tag numbers on the three bags matched the numbers he was given. One large brick-like bundle of cannabis was recovered from each of the three suitcases. Defendant was then arrested and given his Miranda rights, which he said he understood.
After his arrest, defendant answered a series of background questions. According to Smith, defendant told him that the drugs did not belong to him. He told Smith that a friend of a friend contacted him and asked him to transport three suitcases to Chicago. The friend told him that the suitcases would be left at the San Diego Airport inside of a cab, and that once he arrived in Chicago with the package he would be paid approximately $1,000 and the suitcases would be picked up by an unidentified individual.
The State introduced a suitcase into evidence in court. Smith testified that it was one of the three suitcases defendant was carrying on the night of the occurrence. He acknowledged that the suitcase had a lock, but he stated that he was not responsible for opening up the suitcases and that Officer Small did not have any problems getting into the suitcases. Agent Claude testified that she thought she observed locks on the luggage when she inspected them. She acknowledged that there was a lock on the luggage presented in court and that it was probably there when she saw the bags at the airport in San Diego.
The State also introduced photographs that Smith identified as photographs of the three pieces of luggage carried by defendant and taken on November 26, 1997. He stated that the photographs fairly and accurately depicted the suitcases as he remembered them on the night of the occurrence. Included was a blown-up photograph of all three suitcases carried by defendant on the night of the occurrence. Officer Small also testified that the photographs depicted the three bags that belonged to defendant, that the bags had locks on them, but he did not recall undoing the locks. He later testified that he ...