Appeal from the Circuit Court of Stephenson County. No. 11-CF-246. Honorable Michael P. Bald, Judge, Presiding.
Affirmed in part and vacated in part; cause remanded.
On appeal from defendant's convictions for unlawful possession of a controlled substance and drug paraphernalia, the appellate court held that defendant's motion to quash her arrest and suppress the evidence seized following the Terry stop of the car in which she was a passenger was properly denied where the detailed information provided to the police by the driver of the car concerning defendant's possession of crack cocaine and a pipe justified the stop, but defendant's sentence to probation for unlawful possession of a controlled substance was vacated and the cause was remanded for a new sentencing hearing on the ground that the trial court abused its discretion in refusing to consider first-offender probation.
Thomas A. Lilien and Christopher McCoy, both of State Appellate Defender's Office, of Elgin, for appellant.
John H. Vogt, State's Attorney, of Freeport (Lawrence M. Bauer and Matthew J. Schmidt, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant, Rhonda Miller, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2010)) and unlawful possession of drug paraphernalia (720 ILCS 600/3.5(a) (West 2010)). After refusing to place defendant on first-offender probation (see 720 ILCS 570/410 (West 2010)) and failing to address her eligibility for Treatment Alternatives for Safe Communities (TASC) probation, the court sentenced defendant to, among other things, 24 months of probation for unlawful possession of a controlled substance and 1 year of conditional discharge for unlawful possession of drug paraphernalia. Prior to trial, defendant had filed a motion to quash her arrest and suppress the evidence seized, arguing that the arresting officer lacked a proper basis to stop the car in which she was a passenger. The court denied that motion. On appeal, defendant contends that (1) the motion to quash and suppress should have been granted; (2) the court improperly refused to consider first-offender probation at her sentencing hearing; and (3) the court erred when it failed to admonish her about TASC probation. We affirm the court's ruling on the motion to quash and suppress, vacate defendant's sentence of 24 months of probation for unlawful possession of a controlled substance, and remand this cause for a new sentencing hearing.
[¶2] The following facts are relevant to resolving the issues raised. At the suppression hearing, defendant played a recording of a call that was made to the Freeport police department around lunchtime on October 11, 2011. In that call, a man, who later identified himself as " Roger Jordan," first asked, " Is Madigan *** in today?" After he was told that Madigan could not be reached, Jordan asserted, " I am bringing a lady[, whom Jordan later identified as 'Rhonda Miller,'] back from Rockford." Jordan advised the police that " [defendant] just picked up some crack" and that " [he had] been talking to Haas about it." Jordan stated that " [he and defendant] will be coming back to Freeport in a few minutes" and that " [defendant had] $70 worth of shit and her pipe and everything in [Jordan's] car." When asked to give the police a phone number at which they could call him back, Jordan explained that the police could not call him back, because defendant would be in his car. However, Jordan told the police that he would be " coming in [Route] 75 *** past Taylor Park School," that he had a " headlight out" on his car, that his license plate number was " K340923," that he was
driving a " brown Toyota Corolla," and that he would be in the area within " 20 minutes [or] 1/2 an hour."
[¶3] Thereafter, Officer Brandae Hilby received a computerized message from dispatch advising her that " there would be a brown Toyota coming in westbound off of Route 75." The message further relayed that " Roger Jordan[, with whom Officer Hilby had never worked,] would be driving the car[,] and he advised he would have a headlight out." " [Jordan] also advised dispatch that one of the occupants in the car would be having a large amount of crack cocaine on their person." Dispatch gave Officer Hilby a license plate number for the Toyota, but Officer Hilby could not remember any part of it except " K34," and she could not remember whether dispatch gave her the name of the passenger in the car. Officer Hilby went to Route 75, where Jordan indicated he would be, and two to three minutes later she saw the brown Toyota. Jordan flashed his headlight, Officer Hilby activated the emergency lights on her squad car, and Jordan pulled over to the side of the road; Officer Hilby stopped the car based on the fact that the driver's-side headlight on the car was not working.
[¶4] After Officer Hilby initiated the stop, three other officers arrived on the scene, and Jordan gave permission for the police to search his car. During that search, officers found, among other things, a cylindrical glass tube used to ingest cocaine and several knotted baggies of crack cocaine. These items were found in a backpack, which was positioned between defendant's legs when she was sitting in the car, and a small coat that defendant had wrapped around her but left inside the car when she exited.
[¶5] Officer Aaron Haas, one of the officers who arrived on the scene, testified that he had spoken to Jordan at least twice within a month or two before October 11, 2011. When Jordan would call Officer Haas, who was working with the street-crimes unit at that time, he would always identify himself. Jordan, who did not receive any type of benefit from the police for the information he gave them, would tell Officer Haas about defendant's involvement in drug-related activities. Officer Haas did not speak with Officer Hilby before Jordan's car was stopped.
[¶6] The trial court denied defendant's motion to quash her arrest and suppress the evidence seized. In doing so, the court found that Jordan was a reliable informant given the fact that he was a private citizen; provided the police with a description of the car, including the registration number and the fact that one headlight was out; told the police the route that the car would be traveling; and told the police when the car would arrive at a specific location.
[¶7] At defendant's bench trial, Officer Hilby testified that the glass cylinder that the police found in the jacket in Jordan's car was a crack pipe. The pipe was burnt at one end, and it had a burnt residue inside it. In the backpack, Officer Hilby found a charboy and several pushers, which are used along with a crack pipe to ingest cocaine or heroin. She also found a couple of pieces of crack cocaine. Tests done on a loose substance found in the backpack indicated that the substance was cocaine. The trial court found defendant guilty of unlawful possession of a controlled substance and unlawful possession of drug paraphernalia.
[¶8] At sentencing, the State asked for, among other things, 30 months of probation and jail time on the conviction of unlawful possession of a controlled substance. The State believed that this was appropriate based on information contained in the presentence investigation report (PSI). Specifically, although defendant
admitted to using many different types of illegal drugs daily, she denied possessing any drugs when the police stopped Jordan's car. Defendant admitted that she used drugs because she enjoyed the way they made her feel, and she asked that, if she were ...