Appeal from the Circuit Court of Du Page County. No. 09-CM-6600 Honorable Ronald D. Sutter, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Burke and Justice Jorgensen concurred in the judgment and opinion.
¶ 1 Following a stipulated bench trial, the defendant, Christopher A. Petty, was convicted of possession of cannabis with intent to deliver (720 ILCS 550/5(b) (West 2008)) and sentenced to one year of conditional discharge. On appeal, the defendant argues that the trial court erred in denying his pretrial motion to suppress the evidence. In that motion, the defendant alleged that police officers had conducted an investigatory stop, which resulted in the discovery of the cannabis, without having a reasonable articulable suspicion that he was engaged in criminal activity. We reverse.
¶ 2 On November 16, 2009, the defendant was charged by misdemeanor complaint with possession of cannabis with intent to deliver. The complaint alleged that on November 13, 2009, the defendant possessed between 2.5 and 10 grams of cannabis and intended to deliver it to another. On October 22, 2010, the defendant filed a pretrial motion to suppress the evidence. A hearing was held on the motion on May 2, 2011.
¶ 3 At the hearing, Elmhurst police officer Kenneth Lafin testified that on November 13, 2009, at about 7 p.m., he was on patrol with Officer Jeff Kucera, in an unmarked vehicle, near the intersection of North Avenue and Route 83. They noticed a teal-colored Pontiac backed into a parking space at a gas station. A Cadillac pulled into the gas station and drove up next to the Pontiac, driver's door to driver's door. The vehicles contained no occupants other than the drivers. The drivers of both vehicles exited their cars, approached each other, engaged in a hand-to-hand exchange of some unknown object or objects, and quickly got back into their vehicles. The defendant was driving the Cadillac. The exchange took about 10 seconds and Officer Lafin did not observe any conversation between the two drivers. After they witnessed the exchange, he and Officer Kucera pulled into the gas station parking lot. At that point, the defendant had already pulled out of the parking space and begun to move toward the exit of the gas station. Officer Lafin testified specifically as follows:
"Well, Mr. Petty had already started to back out and began to exit the lot. We pulled up-as he was headed toward the south exit, we pulled up, I guess it would be his-well, not guess, it would be his rear driver's quarter panel behind his door almost to a T with him pointing to the exit, us facing the rear of his car."
Officer Lafin further testified that the Cadillac "was pointing out to leave the parking lot, and it stopped when Officer Kucera pulled behind it." Ultimately, Officer Lafin approached the Pontiac and Officer Kucera approached the Cadillac. Officer Lafin testified that he had received training in identifying drug transactions. His most recent training was several months prior to the stop at issue. He had learned that quick hand-to-hand transactions, with very little or no conversation, are consistent with drug transactions.
¶ 4 Officer Kucera testified that he was on patrol with Officer Lafin in an unmarked squad car near the intersection of North Avenue and Route 83 at approximately 7 p.m. on November 13, 2009. Officer Kucera was the driver. Officer Kucera described the same hand-to-hand exchange between the drivers of the Pontiac and the Cadillac. He did not see what was exchanged. He drove the unmarked squad car into the gas station parking lot as the defendant began to back out of his parking space. Officer Kucera testified that when he pulled into the gas station:
"[The squad car] was in the front of both vehicles, but I was back approximately a car length, because as I pulled up and activated the lights, Mr. Petty pulled in front of my vehicle and began to pass my vehicle towards Route 83."
Officer Kucera reiterated that the defendant "had backed out, put the car in drive, and then begun to pull forward." At that point, Officer Kucera activated the lights on the squad car. The squad car was at a right angle to the Cadillac. Officer Kucera testified:
"My car was not in front of Mr. Petty's car. Mr. Petty's car actually had passed the front of my vehicle, and I had to actually yell at him to stop, which he did."
Officer Kucera exited the squad car and approached the defendant. He identified himself as an Elmhurst police officer and asked the defendant to get out of the car. He told the defendant that he believed that he had just witnessed a drug transaction and he asked the defendant if he had anything illegal on his ...