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People v. Teper

Court of Appeals of Illinois, Second District

November 17, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
VALERIE S. TEPER, Defendant-Appellant.

          Rehearing denied January 9, 2017

         Appeal from the Circuit Court of Lake County, No. 15-CF-1007; the Hon. George Bridges, Judge, presiding.

          Terry D. Slaw, of Alan H. Shifrin & Associates, LLC, of Rolling Meadows, and Albert L. Wysocki, of Law Offices of Albert L. Appeal Wysocki, P.C., of Waukegan, for appellant.

          Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Justices Hutchinson and Birkett concurred in the judgment and opinion.

          OPINION

          SPENCE JUSTICE

         ¶ 1 Following a stipulated bench trial, defendant, Valerie S. Teper, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2014)). She was sentenced to 18 months' probation and 12 months' periodic imprisonment, and she was also ordered to perform 150 hours of public service. On appeal, defendant argues that the trial court erred in denying her motion to dismiss the charge, pursuant to section 414 of the Illinois Controlled Substances Act (Act) (720 ILCS 570/414 (West 2014)). In certain situations, section 414 provides immunity from prosecution for possession of a small amount of a controlled substance for a person reporting or experiencing a drug overdose. See id. Defendant also argues that the trial court erred in failing to sentence her to first-offender probation under section 410 of the Act (720 ILCS 570/410 (West 2014)).

         ¶ 2 We conclude that section 414 does not apply because the evidence of defendant's drug possession was not "acquired as a result of" (720 ILCS 570/414(c) (West 2014)) defendant "seeking or obtaining emergency medical assistance." Even otherwise, the statute would not extend immunity to defendant because the police had probable cause to arrest defendant based on evidence that was "not obtained as a direct result of" defendant "seeking or obtaining emergency medical assistance" (720 ILCS 570/414(e) (West 2014)). In other words, defendant is not entitled to immunity under the plain language of section 414(c), and even if she were, section 414(e) would prohibit the extension of that immunity because the police had probable cause to arrest her based on information the police acquired before she obtained emergency medical assistance. We further conclude that the trial court did not abuse its discretion in sentencing defendant. Therefore, we affirm.

         ¶ 3 I. BACKGROUND

         ¶ 4 On June 3, 2015, defendant was charged by indictment with unlawful possession of a controlled substance for unlawfully possessing less than 15 grams of heroin (720 ILCS 570/402(c) (West 2014)). She was also charged with unlawful possession of hypodermic syringes (720 ILCS 635/1(a) (West 2014)) for possessing two hypodermic syringes to inject controlled substances.

         ¶ 5 On July 23, 2015, defendant filed a motion to dismiss the charges. She alleged as follows. On April 16, 2015, two people walked into the Park City police department and told an officer that a driver was slumped over in her car on Route 120. When officers arrived at the scene, they found defendant slumped over in the driver's seat. She was unresponsive and had difficulty breathing. The officers believed that defendant had overdosed on heroin, and an officer injected her with Narcan, [1] a medication that blocks the effects of opiates. Defendant then began to breathe at a normal rate and became conscious. After removing her from the car, the officers found about one gram of heroin and several hypodermic needles.

         ¶ 6 Defendant cited section 414, which is entitled "Overdose; limited immunity from prosecution" and provides, in relevant part:

"(b) A person who, in good faith, seeks or obtains emergency medical assistance for someone experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.
(c) A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.
(d) For the purposes of subsections (b) and (c), the limited immunity shall only apply to a person possessing the following amount:
(1) less than 3 grams of a substance containing heroin;
* * *
(e) The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance. Nothing in this Section is intended to interfere with or prevent the investigation, arrest, or prosecution of any person for the delivery or distribution of cannabis, methamphetamine or other controlled substances, drug-induced homicide, or any other crime." (Emphases added.) 720 ILCS 570/414 (West 2014).

         ¶ 7 In her motion to dismiss, defendant argued that section 414 applied because she was experiencing an overdose, and the evidence for her possession charge was acquired as a result of a person seeking or obtaining emergency medical assistance. Defendant argued that subsection (e) was inapplicable because, prior to or independent of defendant obtaining emergency medical assistance, the police had not learned any information that would have given them reasonable suspicion or probable cause to detain, arrest, or search her.

         ¶ 8 A hearing on the motion took place on October 15, 2015. Officer Kenneth Stoves of the Park City police department testified that on April 16, 2015, at around noon, the police department was notified by someone who came into the department and by various phone calls that a driver was slumped over the steering wheel of a vehicle in traffic. Officer Stoves arrived at the scene at the same time as another officer. There was a significant amount of traffic, and the vehicle was stopped "in the westbound lanes, " which was an offense. Defendant was unresponsive and barely breathing, and her skin was so pale that it was almost blue. Officer Stoves saw two baggies of a brown, rock-like substance, which he believed was heroin. Officer Stoves also observed several hypodermic syringes and the bottom of a can with cotton in it, which was indicative of heroin use. Based on defendant's condition and what he saw inside the vehicle, Officer Stoves believed ...


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