Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 11 CR 3946. Honorable Evelyn B. Clay, Judge Presiding.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, Michael Gentithes, Of Counsel, Office of the State Appellate Defender, Chicago, IL.
For APPELLEE: Anita Alvarez, Alan J. Spellberg, Aaron R. Bond, Of Counsel, Cook County State's Attorney, Chicago, IL.
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Aaron Harris was convicted of possession of cannabis and sentenced to 24 months of probation. On appeal, Harris argues that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence obtained pursuant to an anticipatory search warrant. Specifically, Harris contends that the police improperly executed the search by arresting him before he opened a package containing narcotics that had been fitted by law enforcement with an electronic monitoring and breakaway filament device. Additionally, Harris claims that the State did not prove his knowing possession beyond a reasonable doubt and that the trial court improperly assessed fees with respect to credits accrued during incarceration. Finding that the trial court improperly denied the motion to quash defendant's arrest and suppress evidence, we reverse.
[¶3] On February 21, 2011, Harris was charged with possession of between 500 and 2,000 grams of cannabis and possession with intent to deliver the same after an arrest based on an anticipatory search warrant. Prior to trial, Harris filed a motion to quash his arrest and suppress evidence, alleging that the execution of the anticipatory search warrant was not supported by probable cause because the warrant's triggering event--the opening of the package--had not occurred.
[¶4] The parties proceeded directly to legal argument in support of their written memoranda without calling any witnesses or introducing any evidence. The undisputed facts of Harris's arrest are as follows.
[¶5] On February 21, 2011, law enforcement officers working on the Chicago police department's narcotics section package interdiction team intercepted a Fed Ex package that had been shipped priority overnight from California and required no signature upon receipt. The package was addressed to " S. Harris, 6629 North Kolmar, Lincolnwood, Illinois." Harris's grandmother owned this single-family home, but she had lived in a nursing home for several years. After a canine's behavior indicated the presence of narcotics in the package, officers obtained a search warrant to open the package. The four heat-sealed plastic bundles inside the package tested positive for cannabis. At 1 p.m., the officers obtained an anticipatory search warrant to search:
" S. Harris or anyone taking possession of the Fed Ex Priority Overnight Parcel *** and to enter and search 6629 North Kolmar Ave *** or any premises or vehicle that the Fed Ex Parcel *** is brought into once the parcel has been delivered by law enforcement personnel and seize Cannabis, proof of residency, *** and any other evidence which have been used in the commission of or which constitutes evidence of the Possession of Cannabis."
[¶6] The complaint for the anticipatory search warrant stated that " this search warrant will only be executed if the above described Fed Ex parcel *** is accepted into a location or vehicle" (emphasis added). The complaint explained that based on the officer's experience with hundreds of package interdiction search warrants, the parcel would likely move to another location or be received by a person other than the person to whom it was addressed.
[¶7] At the same time they obtained the anticipatory search warrant, the officers obtained an order to install an electronic monitoring and breakaway filament device in the package. The device sends an electronic signal when the package is standing still, moving, or opened. The order approving the warrant stated that the petition and attached affidavit explained facts sufficient to show probable cause that placement and monitoring of this device " will produce evidence of a crime and assist in the identification of a perpetrator and possible co-conspirators." The face of the search warrant did not mention the order or installation of the device.
[¶8] After obtaining the warrant, the officers repackaged the box and made a controlled delivery at approximately 2:10 p.m. the same day. Officer Sterling Terry, working in an undercover capacity as a Fed Ex employee, brought the package to the front door of the residence, rang the doorbell, and left the package on the front porch while other officers maintained surveillance of the location.
[¶9] Less than an hour later, Harris pulled into the driveway of the residence, exited the vehicle while it was running, picked up the package, and immediately returned to his vehicle. He placed the package in the rear passenger seat of his otherwise empty vehicle. The officers did not monitor or receive a signal from the breakaway filament that the package had been opened or that it was moving.
[¶10] By radio communications, the officers then decided to execute the warrant. Two officers approached the vehicle, arrested Harris, and retrieved the package. After he was given Miranda warnings, Harris said he understood them and made statements to the officers regarding his knowledge of the contents of the package and its place of origin. The officers made no recording or memoranda of these statements, and the officers did not include the statements in their police report. The police report recited that Harris was " arrested after he took into his possession a Fed Ex parcel that he knew contained cannabis and placed it into his vehicle and attempted to drive away" (emphasis added).
[¶11] In support of his motion to suppress, Harris argued that the officers who arrested and searched him did not have probable cause to do so prior to the anticipatory warrant's triggering event. Specifically, Harris maintained that the warrant's triggering event, in light of the installation of the electronic monitoring and breakaway filament, was the opening of the package. Harris contended that because he did not open the package, the evidence, ...