On appeal from defendant’s conviction for unlawful possession of a controlled substance, the appellate court rejected the State’s contention that defendant forfeited his claim that his motion to suppress was improperly denied, since the parties’ agreement to a stipulated bench trial preserved the ruling on that motion for review, and in defendant’s case, the arresting officer’s observation of a single hand-to-hand transaction in a “high narcotics area” followed by defendant’s furtive movements was insufficient to establish probable cause to search defendant’s pocket after the vehicle he was riding in was stopped for failing to signal a turn; therefore, his conviction and sentence were reversed.
Appeal from the Circuit Court of Cook County, No. 11-CR-3783; the Hon. Maura Slattery-Boyle, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Shawn O'Toole, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Miles J. Keleher, Assistant State's Attorneys, of counsel), for the People.
Panel: 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.
¶ 2 BACKGROUND
¶ 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 ...