Appeal from the Circuit Court of Cook County No. 11 CR 3783 Honorable Maura Slattery-Boyle, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion. Justices Hyman and Pierce concurred in the judgment and opinion.
¶ 1 Following a stipulated bench trial, defendant Darryl Trisby was convicted of possession of a controlled substance and sentenced to three years and six months in prison, followed by a one-year period of mandatory supervised release. On appeal, defendant contends that the circuit court erred in denying his motion to quash his arrest and suppress evidence where the police lacked probable cause to search him. For the reasons that follow, we reverse the judgment of the circuit court of Cook County.
¶ 3 Defendant Darryl Trisby was charged with possession of 1 to 15 grams of heroin with intent to deliver within 1,000 feet of a school. Defendant filed a motion to quash his arrest and suppress evidence.
¶ 4 At the hearing on the motion, Officer Tucker testified that on February 7, 2011, at 9 p.m. he and a partner were in their squad car heading south on Halsted in Chicago. While stopped at a red light at 59th Street and Halsted, Officer Tucker saw a woman approach a parked car 30 to 40 feet to his left. Officer Tucker testified that there was adequate artificial lighting in the area. As Officer Tucker watched, the woman handed some currency to an individual seated in the rear seat on the passenger side of the vehicle. The individual in the rear seat accepted the money and tendered a small unknown object to the woman. Officer Tucker believed he had witnessed a narcotics transaction and testified that they were in a high narcotics area.
¶ 5 After the transaction, the car headed west on 59th Street and Officer Tucker and his partner followed it for several blocks, then pulled the car over for failure to use a turn signal. Officer Tucker approached the vehicle and observed defendant in the rear passenger seat. He saw defendant quickly pull his right hand away from his right front pants pocket. Defendant was holding a $10 bill in his left hand. Officer Tucker instructed defendant to place his hands on the headrest in front of him and, as the officer spoke with the driver, defendant made two or three more attempts to move his hand toward his right front pants pocket. Officer Tucker walked around the back of the car, making sure that defendant's hands were still on the headrest. He then opened defendant's door and told him to get out of the car and put his hands on the roof of the vehicle. Defendant complied but made another attempt to reach in his right front pants pocket.
¶ 6 Officer Tucker grabbed defendant's arm, reached into defendant's right front pants pocket, and discovered a rubber banded bundle, containing nine clear plastic bags of suspected heroin. Officer Tucker also recovered a $10 bill from defendant's left hand. He testified that in his eight years as a Chicago police officer, he had made hundreds of narcotics arrests involving hand-to-hand transactions. The trial court denied defendant's motion to suppress.
¶ 7 Defendant's bench trial proceeded by stipulation. The parties stipulated to Officer Tucker's suppression-hearing testimony. They also stipulated to the chain of custody of the nine plastic bags containing suspected heroin and further stipulated that an Illinois State Police forensic chemist, Penny Evans, would testify that she tested the material in those bags and found them to contain 1.3 grams of heroin. Although defendant was charged with possession of a controlled substance with intent to deliver, the trial court found him guilty of the lesser-included offense of possession of a controlled substance. Defendant was sentenced to 3 1/2 years in prison with a 1 year period of mandatory supervised release. Defendant timely filed this appeal.
¶ 9 The sole issue on appeal is the legality of Officer Tucker's search of defendant's pocket. The State contends that defendant has forfeited consideration of this claim because he failed to raise the suppression issue in his posttrial motion. This contention has no merit because the parties' agreement to a stipulated bench trial preserved review of the trial court's ruling on the motion to suppress. People v. Nitz, 371 Ill. App. 3d 747, 750 (2007); People v. Cordero, 358 Ill. App. 3d 121, 124 (2005); see also People v. Horton, 143 Ill. 2d 11, 22 (1991) (noting that stipulated bench trial avoided the waiver rule while preserving the defendant's suppression issue).
¶ 10 We review de novo the ultimate question of defendant's legal challenge to the denial of his motion to quash arrest and suppress evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).
¶ 11 The fourth amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV; accord Ill. Const. 1970, art I § 6; see Fink v. Ryan, 174 Ill. 2d 302, 314 (1996) ("This court has construed the search and seizure language found in section 6 in a manner that is consistent with the Supreme Court's fourth amendment jurisprudence."). Reasonableness in ...