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People v. Gallaher

June 04, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KARL A. GALLAHER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County No. 02CF102. Honorable Donald M. Cadagin, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

PUBLISHED

In February 2002, the State charged defendant, Karl A. Gallaher, with possession of a methamphetamine-manufacturing chemical- namely, anhydrous ammonia (count I) (720 ILCS 570/401(d-5) (West 2002)) and unlawful transportation of anhydrous ammonia (count II) (720 ILCS 5/21-1.5(b-5) (West 2002)). In March 2002, defendant moved to dismiss, alleging that (1) count I failed to state an offense; and (2) he was denied due process because the State destroyed the alleged anhydrous ammonia. The trial court later dismissed count I but denied defendant's motion to dismiss count II.

Following a July 2002 stipulated bench trial, the trial court convicted defendant of count II. The court later sentenced him to 24 months' probation.

Defendant appeals, arguing only that the trial court erred by denying his motion to dismiss count II. We disagree and affirm.

I. BACKGROUND

On February 1, 2002, a confidential source contacted the Springfield police department and informed officers that defendant intended to steal a quantity of anhydrous ammonia. (Anhydrous ammonia is a "commercial fertilizer of ammonia gas in compressed and liquified form" (505 ILCS 80/3(d) (West 2002); 720 ILCS 5/21-1.5(b-10) (West 2002)).) Around 10 p.m., Sangamon County sheriff's sergeant Wes Barr pulled over a truck near the intersection of Sand Hill and Peoria Road in Springfield. Defendant was in the front passenger seat, and the confidential source was in the driver seat. As defendant got out of the truck, a "coffee[-]style" Thermos fell on the ground. The confidential source later informed the police that the Thermos contained anhydrous ammonia. During an interview with officers, defendant ultimately admitted that (1) the Thermos contained anhydrous ammonia, and (2) he had been involved in stealing the anhydrous ammonia. The police believed that a Thermos was not a suitable container for transporting anhydrous ammonia, so a Springfield police detective contacted Safety-Kleen Corporation and requested that it pick up and dispose of the anhydrous ammonia. On February 2, 2002, Safety-Kleen transported the anhydrous ammonia to a waste-disposal facility and later disposed of it. No testing of the substance occurred.

Later in February 2002, the State charged defendant with possession of a methamphetamine-manufacturing chemical (count I) (720 ILCS 570/401(d-5) (West 2002)) and unlawful transportation of anhydrous ammonia (count II) (720 ILCS 5/21-1.5(b-5) (West 2002)). In March 2002, defendant filed a motion to dismiss the charging instrument, arguing that (1) count I failed to state an offense because section 102(z-1) of the Illinois Controlled Substances Act does not list anhydrous ammonia as one of the prohibited methamphetamine-manufacturing chemicals (720 ILCS 570/102(z-1) (West 2002)); and (2) he was denied due process because the State destroyed the alleged anhydrous ammonia without (a) performing a chemical analysis of the substance or (b) allowing defendant to obtain a sample for chemical analysis. Following an April 2002 hearing on defendant's motion, the trial court dismissed count I and requested that the parties file memoranda addressing defendant's due process argument.

Later in April 2002, the State filed a memorandum, arguing, in pertinent part, that (1) the anhydrous ammonia, which was being transported in an ill-equipped container, created "an immediate and real danger to the public and to law enforcement officers"; and (2) Springfield police officers followed established guidelines for dealing with toxic and hazardous materials when they requested that Safety-Kleen dispose of the anhydrous ammonia. Attached to the State's memorandum was the affidavit of James O'Brien, the longtime manager of statewide emergency response for the Illinois Environmental Protection Agency (Illinois EPA). O'Brien averred, in pertinent part, as follows:

(1) He was familiar with anhydrous ammonia, which is a form of ammonia manufactured "to be without any associated water."

(2) Anhydrous ammonia is commercially stored as a liquid at high pressure.

(3) Methamphetamine manufacturing by the "Nazi[-]dope" method requires liquid anhydrous ammonia.

(4) When anhydrous ammonia is released from a pressurized container, the liquid turns into vapor and expands to 850 times the volume of the liquid form.

(5) Such an expansion "presents a forceful rupture hazard if the vapor is tightly confined in a non[]pressure container such as consumer coolers or [T]hermoses," and if the expanding vapor is released inside a building, the expansion can quickly fill large areas with toxic and potentially explosive concentrations of ammonia vapor.

(6) Attempting to save a [T]hermos of anhydrous ammonia would be futile because the liquid would eventually evaporate, and in a closed space, the resulting vapors would ...


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