Appeal from the Circuit Court of Du Page County No. 09-CF-216. Honorable George J. Bakalis, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Spence concurred in the judgment and opinion.
¶ 1 On January 25, 2009, the defendant, William B. Marcella, was charged by felony complaint with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2008)). Law enforcement officers had discovered over 300 pounds of cannabis in 8 cardboard boxes on a small airplane owned and operated by the defendant. On January 22, 2010, the defendant filed a motion to suppress the evidence, arguing that the officers had neither reasonable suspicion nor probable cause to detain him. The trial court granted the defendant's motion to suppress. The State appeals. We affirm.
¶ 2 I. BACKGROUND
¶ 3 On January 13, 2011, a hearing was held on the defendant's motion to suppress. At the hearing, the following evidence was presented. Robert Grice testified that he was a line service technician at Du Page Airport. On January 24, 2009, between 4:30 and 5 p.m., he was in an office with Ryan Gohl and one other person. A plane had just landed. They overheard radio communications about clearing the airspace and saw a Blackhawk helicopter coming toward the airport from the east. They jumped in a truck and headed toward the helicopter, which was in the vicinity of the "E1" hangar. When they reached the hangar, there were 10 unmarked cars and the helicopter landed hard and fast. Agents jumped out wearing tactical jumpsuits. One air agent had his gun drawn and pointed toward two men who had their hands up against the overhead door of the hangar. About 10 ground agents also had their guns drawn and pointed at the 2 men by the hangar. The overhead door of the hangar was closed.
¶ 4 Gohl testified that he was a line service technician at Du Page Airport. On January 24, 2009, he was in an office that had a radio linked to the control tower frequency. The tower had shut down the airspace and declared an emergency landing for a small airplane. The tower directed the plane to the E1 hangar. He and the others in the office headed to the hangar and saw a Blackhawk helicopter land next to it. The landing was very fast and aggressive. About six agents jumped out of the helicopter and rushed the hangar. One agent had an assault rifle drawn and was scanning the area. There were two men up against the hangar, being frisked. There were 15 to 20 other agents there and 6 to 10 cars. There were multiple agents with weapons drawn and pointed at the two men. After the two men were frisked, they were handcuffed and brought toward the parked cars. Agents were patrolling and going in and out of the hangar through a side door. The plane was already in the hangar and the overhead hangar door was closed.
¶ 5 The defendant testified that he had held a pilot's license for 40 years. At 9 a.m. on January 24, 2009, he left the Marana, Arizona, airport on his way to Du Page Airport. He had no passengers. Earlier, at 7:30 a.m., he had applied for a weather briefing, which was a weather report sanctioned by the Federal Aviation Administration (FAA). Applying for the weather report made the FAA aware of his name, tail number, license number, address, and phone number. When he took off, he had his transponder on, which meant that any aircraft radars would know his license number and tail number. He initially was flying under "visual flight rules" (VFR)-in other words, without a flight plan. About 30 to 40 minutes into the flight, he filed a flight plan with the Albuquerque control center. After he landed at Du Page, he taxied to hangar E1, which he leased. He was met by Walter Klein, who helped him push his plane into the hangar. They exited the hangar and pushed the remote control button to close the overhead hangar door.
¶ 6 While standing in front of the hangar, he saw a Blackhawk helicopter. It came in with a hard and fast landing. Four to five agents rushed out of it in "full battle regalia." One had a nightscope and rifle and the others had guns. The agents rushed toward him and Klein. He and Klein both put their hands up in the air. They were put up against the hangar door, frisked, and cuffed with their hands behind their backs. They were taken to the fence next to the hangar while agents walked in and out of the hangar through a side door. The defendant was eventually brought into the hangar and told to stand in front of the plane's right wing. His cuffs were removed. There were 6 to 11 agents in the hangar at any given time.
¶ 7 One of the agents asked him his name. He gave the agent his name. The agent then asked for his pilot's license and medical certificate. When the defendant reached for his wallet, the agent grabbed his jacket by the back of the collar and pushed him down. The agent took the defendant's wallet out of the defendant's pocket and allowed the defendant to take the documents out of his wallet. The defendant was handcuffed again. The agent then asked for the defendant's airworthiness certificate and airplane registration. The defendant told the agent that the airworthiness certificate was in the back of the airplane, above the hat rack. The defendant testified that, at that point, there were already agents in the cockpit rummaging around. The agent asked if he could retrieve the airworthiness certificate, but the defendant said no. The agent then proceeded to the airplane with other agents and unlocked the cargo door with a key, which the defendant had left in the ignition. The agents started removing boxes from the plane. The defendant testified that he did not give the officers permission to enter the plane. The agent noted that the defendant's medical certificate did not allow him to fly commercial cargo and asked the defendant what was in the boxes. The defendant did not answer. The defendant testified that about two hours after the helicopter landed, he saw a dog enter the hangar.
¶ 8 On cross-examination, the defendant testified that he had loaded the boxes onto his plane the night before. He had made stickers that said "Garmin" and put them on the boxes. He had been flying out of the Marana airport for about three years. He did not fly directly from Marana to Du Page, because there were mountain ranges, military zones, and desolate areas he wanted to avoid. The route he flew-east and then north-was the safest route. He followed I-10 into New Mexico and I-25 to Albuquerque. A direct flight path from Marana to Albuquerque is nothing but wilderness. He did not file a flight plan for about 30 to 40 minutes after he took off because he needed to reach an elevation of about 12, 000 feet, above the local mountain ranges, for the radio to work well enough to contact the Albuquerque control center at the Tucson airport. Finally, the defendant testified that if he had been trying to avoid detection he would not have put the transponder on, asked for a weather briefing, or filed a flight plan with Albuquerque control center. The defendant acknowledged that, by filing a flight plan after he was in New Mexico, no one would know his point of origination.
¶ 9 Rachel Huff testified that she was employed by the Department of Homeland Security (DHS) Customs and Border Protection and Air Marine Operations Center (AMOC). As of the date of her testimony, she had worked there for about three years. Prior to that she was an air traffic controller for the United States Navy for five years. Her responsibilities at AMOC included detecting, sorting, and tracking aircraft.
¶ 10 On January 24, 2009, at 7:15 a.m. Pacific Standard Time, she detected an aircraft near Marana with a "1200" transponder code, which meant that it was flying under VFR. The aircraft proceeded east over 100 miles and then the transponder code changed to 1644, which meant that the pilot was communicating with air traffic control. She called the Albuquerque control center and verified that the tail number was N433S. She went through various databases and saw that the aircraft was linked to the defendant and that the defendant had a history with narcotics. He had drug-related arrests in 1967 (possession of marijuana), 1975 (possession of dangerous drugs), and 1984 (distribution of marijuana). Although he had no convictions of these offenses, he had a 1985 conviction of income tax evasion. Huff then contacted the FAA and asked about recent activity on the aircraft. She verified the weather briefing, the tail number, and the pilot's identity as the defendant. Other database checks showed that the defendant once had a passenger by the name of William Schwartz and that Schwartz had been convicted of possession of 1, 000 kilograms of cocaine.
¶ 11 Huff testified that she relayed her findings to her supervisor, who directed her to call the duty officer at Immigration Customs Enforcement (ICE) in Chicago. The duty officer contacted Agent Steve Fekete, who then called Huff. Huff told Fekete about what she saw, the defendant's history, and the possibility that Schwartz could be on board. Huff testified that, in her experience, an aircraft flies directly from point A to ...