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People v. Rosenberg

November 18, 2004


The opinion of the court was delivered by: Justice Garman

Docket No. 96834-Agenda 5-September 2004

Following a jury trial in the circuit court of La Salle County, defendant Adam Rosenberg was convicted of one count of controlled substance trafficking (720 ILCS 570/401.1(a) (West 1998)), involving 30 or more grams of a substance containing ketamine. He was sentenced to a term of 18 years' imprisonment.

Defendant, a resident of Massachusetts, was arrested based upon a traffic stop of his alleged accomplice, David Belmonte, and a subsequent search of the car Belmonte was driving. The search revealed several boxes of ketamine in the trunk of the car. Defendant was not present in the car or in the State of Illinois when the stop took place. Prior to trial, defendant filed a motion to quash arrest and suppress evidence. He alleged that on February 22, 2000, a police officer stopped Belmonte, also a resident of Massachusetts, for a traffic violation. Belmonte was driving a rental car and presented the officer with a valid driver's license and rental agreement for the car. The officer issued a warning to Belmonte for following too closely and then asked for consent to search the car. Belmonte consented and a search was conducted. Nothing incriminating was found in the passenger compartment of the car. Belmonte did not give officers a key to the trunk. They gained access to the trunk through the backseat. An officer reached into the trunk and felt several boxes. He opened one of the boxes and removed a small bottle containing a clear liquid. Belmonte was arrested for possession of a controlled substance. Belmonte gave a statement implicating defendant and claimed that the boxes in the trunk belonged to defendant. Based on this information, police arrested defendant. Defendant's motion further alleged that neither he nor Belmonte consented to a seizure of the boxes in the trunk of the rental car and that the conduct of the officers constituted an illegal seizure. Defendant asked the court to quash his arrest and suppress all evidence obtained through the illegal search and seizure.

Belmonte was called by the prosecution under a grant of use immunity to testify at the grand jury proceeding that resulted in defendant's indictment. He later testified at defendant's trial under a grant of use immunity. Defendant was permitted to subpoena Belmonte from Massachusetts to appear in Illinois at the hearing on defendant's motion to suppress. That hearing was held on June 14, 2001. Initially, defense counsel advised the circuit court that defendant was not contesting the search of the rental car or Belmonte's apparent authority to consent to that search. Counsel advised the court that defendant intended to establish that the police seized the boxes illegally because they lacked probable cause to believe the boxes contained a controlled substance. Counsel argued that while Belmonte gave consent to search the car, he did not give consent to seize the boxes. In response to questions from the court as to whether his motion established any ownership or possessory interest in the items seized, counsel stated that he intended to call Belmonte to testify as to those matters. However, Belmonte's retained counsel informed the court that he had advised his client to assert his fifth amendment privilege against self-incrimination because a charge was pending against Belmonte in connection with his transportation of the ketamine. Defendant's counsel then asked the court to compel the prosecution to grant use immunity to Belmonte so that he could testify at the suppression hearing. Counsel argued that it was a violation of defendant's due process rights to allow the prosecution to choose the hearings at which Belmonte would receive use immunity. The prosecutor responded that Belmonte had been given no special consideration for his grand jury testimony and that he had given no indication that he would plead guilty to the charges against him. The prosecutor also claimed that Belmonte could be facing federal charges, as well as charges in other Illinois counties. The circuit court denied defendant's request to force the prosecution to grant Belmonte use immunity, saying that it lacked the authority to do so. The court indicated, however, that if Belmonte testified at trial, defendant could ask for a reconsideration of the court's ruling.

Defense counsel called Belmonte to testify at the suppression hearing and Belmonte asserted his fifth amendment privilege. Counsel then called Illinois State Police trooper Keith Chestnut to testify. Chestnut, a trooper since 1998, stopped Belmonte for a traffic violation. When asked if Chestnut could search his car, Belmonte gave consent. Chestnut denied that Belmonte told him the boxes in the trunk belonged to defendant. Belmonte gave that information to task force agents and Chestnut was not present for that conversation. According to secondhand information provided to him, Chestnut learned that Belmonte said defendant gave him the boxes found in the trunk in San Diego and that Belmonte was to transport the boxes cross-country to Boston, where defendant would retrieve them. Other officers arrived on the scene. After Belmonte gave consent to the search, Chestnut asked for the key to the trunk, as the trunk release on the dashboard of the car, as well as the release on the key fob, did not work. Belmonte stated that was the way the car was given to him by the rental agency. After officers accessed the trunk through the backseat and found the drugs, Chestnut arrested Belmonte and Belmonte gave him a key to the trunk. The vials removed from the trunk were labeled ketamine. Chestnut recognized ketamine from his prior experience as a local police officer with the Freeport, Illinois, police department, where he heard about burglaries of veterinary clinics from which ketamine was stolen. He also took classes on controlled substances, but those took place subsequent to Belmonte's arrest.

At the conclusion of defendant's evidence, the circuit court granted the State's motion for a directed finding, on the ground that defendant had failed to establish a sufficient privacy interest to contest the search of the rental car or the seizure of the boxes containing the ketamine. The court also ruled that the police had probable cause to seize the ketamine.

Defendant filed a motion to reconsider the court's ruling on the probable cause issue based upon alleged misstatements by Chestnut as to his prior experience with ketamine. At a hearing held on that motion, Robert Smith, deputy chief of police with the Freeport police department, testified that he performed a computer database search of the department's records of veterinary clinic burglaries from 1990 to 1998. He found just one burglary from 1996. The only thing stolen was United States currency. Jeff Downing, a Freeport police officer who investigated the 1996 burglary, testified that checks and cash were taken from the clinic and that no medicines were taken. Although there were a couple of burglaries at the Freeport Animal Hospital, which is within the jurisdiction of the Stephenson County sheriff's department, Downing did not receive any information as to what was taken. Based upon this testimony, the circuit court vacated its order granting the State's motion for directed finding.

The court conducted a further hearing on defendant's motion to suppress evidence. The prosecution called Richard Roodhouse, deputy sheriff of the Stephenson County sheriff's department. He testified that he investigated a burglary at the Freeport Animal Hospital in April 1997. Several bottles of ketamine were taken. From 1992 to 1998, there were 13 burglaries to veterinary clinics in Freeport or Stephenson County. Roodhouse shared information on those burglaries with the Freeport police department. Only during the April 1997 burglary was ketamine taken.

Sergeant Robert Cessna of the Illinois State Police testified that he assisted Chestnut in the search of the rental car Belmonte was driving. Belmonte told them he did not have a key to the trunk. They gained access through the backseat. Cessna reached into the trunk and felt some cardboard boxes. Because of the angle, he was not able to open any of the boxes, so he cut into the side of one of the boxes to see what was inside. He felt glass and cut a larger hole so he could remove it from the box. It was a 10 milliliter vial of a clear liquid. On the vial was a label stating that it was ketamine. The label also contained the word "caution" and stated that "federal law restricts this drug to use by or on the order of a licensed veterinarian." Cessna showed the bottle to Chestnut.

Chestnut testified that when he looked at the label on the vial Cessna handed him, he recalled from his academy training that ketamine is a controlled substance. When he was a police officer in Freeport, Chestnut was aware that ketamine was not a controlled substance at that time. At the close of the hearing, the circuit court found that the cautionary label on the vial of ketamine gave the officers probable cause to seize it and conduct a further investigation to see whether the clear liquid inside the vials was in fact ketamine.

Defendant filed a motion to preclude Belmonte from testifying at the trial, alleging that, by refusing to offer immunity to Belmonte at the suppression hearing and by not insisting on trying Belmonte, the prosecution improperly manipulated the criminal process to protect Belmonte and to prevent him from providing testimony helpful to the defense. Defendant claimed that he was prejudiced at the suppression hearing because he was unable to challenge the legality of the stop and search of the rental car, as well as the nature of Belmonte's role in the crime. The circuit court denied the motion, noting that defendant would be able to cross-examine Belmonte at trial.

At trial, Belmonte testified that he had known defendant since high school. Belmonte borrowed some money from defendant and, a few days later, defendant asked Belmonte to transport the ketamine, in return for which defendant would forgive Belmonte's debt. The two men flew from Boston to San Diego, where defendant rented a car using the driver's license and credit card of his brother, Jon Rosenberg. Defendant placed boxes in the trunk. He disengaged the automatic trunk release button inside the car and he and Belmonte each took a key to the trunk in case the car was stopped. Defendant told Belmonte what route to take to get to Boston and advised him to avoid a certain checkpoint in San Diego. While Belmonte was driving, he and defendant kept in touch via their cell phones. After Chestnut stopped him for the traffic violation, Belmonte gave consent to search the car. He told the officers he did not have a trunk key. However, after watching the officers access the trunk through the backseat, Belmonte gave his key to one of the officers. Belmonte testified that he was charged with possession of a controlled substance with intent to deliver and that, due to his cooperation with the State, he was not charged with drug trafficking. Defendant did not testify at trial.

Following the trial, defendant filed posttrial motions. In none of the motions did defendant argue that the circuit court's refusal to force the prosecution to grant Belmonte use immunity at the suppression hearing deprived defendant of due process. Instead, defendant argued that Belmonte should have been precluded from testifying at the trial. The circuit court denied all motions.

On appeal, defendant argued that (1) the prosecution deprived him of due process by refusing to grant Belmonte use immunity at the suppression hearing, (2) the circuit court erred in denying his motion to suppress, (3) his conduct did not constitute trafficking within the meaning of the statute, and (4) the penalty for controlled substance trafficking is unconstitutionally disproportionate. The appellate court vacated the circuit court's order denying the motion to suppress and remanded for a new hearing on the motion, finding that the prosecution had deprived defendant of due process by refusing to grant use immunity to Belmonte at the suppression hearing. The court retained jurisdiction over the remaining issues should it become necessary to address them at a later time. 341 Ill. App. 3d 893. We granted the State's petition for leave to appeal. 177 Ill. 2d R. 315. Because we conclude that Belmonte's testimony at the suppression hearing was not necessary to establish any ...

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