People v. Jones

more than a mere nothing possi- dence creates presented by plaintiff and, therefore, find court of such we trial bility exposure motion for granted summary judgment. defendants’ properly reasons, of the circuit of Cook foregoing judgment For is affirmed. County

Affirmed. P.J.,* CERDA, J.,

FREEMAN, concur. ILLINOIS, Plaintiff-Appellee, v. THE PEOPLE OF THE STATE OF JONES, Defendant-Appellant. BRUCE Division) (5th No. 1 — 88—0214 First District 30, 1989. Opinion filed June * upon tape appeal in this to the and read briefs listened Freeman has Justice of Justice Rizzi. recusal J.,

PINCHAM, dissenting. Evans, Evans, Flood, Ridge, ap- Bredemann & of Park Larry M. pellant. D. Partee, Chicago (Inge Fryklund, Jerry Attorney, State’s

Cecil A. Torcasso, Bischoff, Hatzenbuehler, Thomas J. Assistant State’s R. Mari People. Attorneys, counsel), for the MURRAY delivered opinion

PRESIDING JUSTICE court:

Defendant, Jones, charged information with posses Bruce (more grams than 15 of a substance sion of a controlled substance of section with intent to deliver violation containing cocaine) (Ill. Substances Act Rev. Stat. the Illinois Controlled 401(b)(2) of 56x/2, He a motion to evi 1987, suppress filed par. 1401(b)(2)). ch. denied, the motion and defendant Following hearing, a was dence. trial in the circuit court of stipulated a bench guilty was found after years. term of six prison He sentenced to serve a Cook was County. denying the trial court erred in he contends On appeal, on whether the ini- (1) The issues are: appeal of evidence. suppression consensual and the law officers was tial encounter between defendant a de- detention; Terry-type if encounter was (2) or Terry-type a detention; (3) tention, facts justified whether sufficient bag defendant’s shoulder violated search of subsequent whether rights. his fourth amendment 26, Midway 1987, one-way flight defendant took a

On March Lauderdale, Florida. On March to Fort Chicago Airport Fort train ticket from Lauderdale one-way he a Amtrak purchased 30, 1987, Officer Christine On March D.C. Chicago Washington, via department, learned Kolman, Chicago police 13-year a veteran on Chicago arrive in that defendant would police from the Amtrak day or the day following She also learned that No. 29. Amtrak train Florida, Lauderdale, via traveling from Fort that defendant Washington, D.C., and that had trips he made several similar in the past. 31, 1987, on

About 9:10 a.m. March companion, defendant and a Borner, Edward Station, arrived at Union 210 South Canal Street Chicago, time, on Amtrak train No. 29. At that Kolman and other plainclothes narcotics agents conducting were a surveillance narcotics investigation. surveillance, the course of During her Kolman observed defendant and Borner exit the train. Defendant walked without hesi- through station, tation area and the rest of the train but waiting around, him, repeatedly turned looked behind con- eye and made tact several times with Kolman and one of the other officers. Defend- again ant eye made contact with Kolman once or twice as he rode up the escalator to the mezzanine level. stepped Defendant off the escala- tor on the mezzanine level and had walked about 5 10 feet away from the escalator an police approached when Amtrak officer him. well-illuminated, This was a public crowded area near the exit doors. Kolman approached defendant, Chicago identified herself as a police officer, and her badge. displayed identification The Amtrak offi- cer and special agent defendant, narcotics were with Kolman and but the Amtrak police officer away walked when Kolman and agent identified themselves. alongside Kolman stood defendant. Nei- ther she nor the other officers grabbed him, touched or nor did they display their weapons. standing defendant; No one was front rather, the exit doors were in front of defendant. Defendant was not pinned wall or against any counter.

After herself, Kolman identified she asked Borner defendant and whether they agree would to speak to the officers. they When stated would, Kolman them asked their produce train tickets and driver’s licenses other identification. then their They produced driver’s licenses and travel itineraries. Defendant’s travel re- itinerary flected that he flew to Fort Lauderdale from in Chi- Midway Airport on cago March and that he left Fort Lauderdale on March Chicago train to via D.C. After Washington, Kolman read the docu- ments, she returned them to defendant and Borner. She then ex- plained that the officers were conducting investigation, narcotics and she asked them how had long they been in Florida and whether the trip for was business Defendant that pleasure. stated he had been on in Thursday vacation Florida since the previous asked Kolman what this all was about. Kolman offi- again explained that the cers a conducting were investigation narcotics and she asked defend- ant and they illegal Borner whether had in narcotics their possession. Both negative. defendant and Borner in answered the Kolman then

420 not under arrest tone that were they

told them in a conversational them whether any free to leave at time. She asked they and that were bags and she told them that would consent to a search their they ahead,” “Yes, go stated, to Borner but right had refuse. they noticed that to Kolman began defendant did not answer and tremble. and asked very he was nervous trembling defendant and that was bags. to search of his whether he would consent again Kolman to a search. At this defendant declined to consent point, not un- free leave and that were again they they stated that were to going further she detain defend- der arrest. She that was explained it to sniff test. a canine bag temporarily subject ant’s order stated, narcotics my bag, got then “You can search I’ve Defendant it The officers were neither somebody it I’m for else.” carrying but defendant, nor had threatening blocking nor touching, grabbing, to termi- any did desire weapons. express drawn their Defendant area. proceeded the conversation or to leave the Kolman nate inside, placed the contraband bag, search defendant’s found arrest Borner because no contra- She did not defendant under arrest. had no his It is that officers bags. undisputed band was found in warrant for the search or arrest. court noted motion to trial suppress,

In defendant’s denying consensual, right the officers had the initial that encounter had cause probable and that officers bag, to detain defendant’s that there defendant’s statement following and the arrest search bag. were narcotics evidence will suppress

A trial court’s on a motion finding (People Long erroneous. v. manifestly disturbed unless not be 219; 160.) Ill. 2d How People Reynolds (1983), 2d v. (1983), 99 Ill. al ever, statute, prove upon the burden defendant under hearing: legations suppression at a showing state facts writing

“The motion shall be judge The shall seizure were unlawful. the search and wherein to determine of fact necessary evidence on issue receive and sei search proving the motion and the burden (Ill. on the defendant.” Rev. Stat. shall be zure were unlawful 1987, 114-12(b).) ch. par. view, statutory proof. failed to meet his burden

In our defendant “right people The provides fourth amendment houses, effects, un against persons, papers, in their to be secure Const., seizures, (U.S. shall not be violated.” searches and reasonable L. U.S. Ed. 2d IV.) Terry amend. In Ohio limited, de- investigative Court authorized a Supreme Ct. S.

421 However, tention short of a of probable full arrest and short cause. not all encounters between citizens law enforcement officers im (Florida v. Royer (1983), 460 U.S. plicate fourth 491, the amendment. 75 v. 229, 1319; L. Ed. 2d People Long, 103 S. Ct. 99 Ill. at 229.) 2d A seizure occurs when a law restrains a liberty officer citizen’s v. by physical force or authority. (People Long, of 99 Ill. at show 2d 229.) questioning Consensual does not implicate fourth amend Royer, (See 497-98, 236, ment. 460 at U.S. 75 L. Ed. 2d at 103 S. Ct. at 1324; Rodriguez Florida v. 1, 164, (1984), 469 U.S. 83 L. Ed. 2d 105 S. 308.) Ct. to four According members of the United States Su preme Court, the fourth is a amendment not violated when law officer merely person a in a approaches public asks him whether he is place, willing to answer some questions, asks him if the questions person listen, willing to or offers evidence the voluntary answers to the (Royer, questions. 497, 236, 460 U.S. at 75 L. Ed. 2d at 103 S. Ct. at White, J., Marshall, 1324 (opinion Stevens, of joined by Powell and People v. JJ.); also Long, People v. Alcantara 219; see 99 Ill. 2d (1989), 179 Ill. 3d The App. 105.) mere fact that the officer identifies officer, himself as an more, without does not convert the encounter into a seizure requiring justification. (United objective some level of States v. Mendenhall 544, (1980), 446 497, U.S. 64 L. Ed. 2d S. 100 1870.) Therefore, Ct. question threshold case of this type whether a seizure has occurred. Illinois,

In the test for determining whether a seizure has oc one, curred is an objective namely, whether a reasonable would person have believed he was free leave under the circumstances. (See v. People Miller (1984), People v. 620; 124 Ill. App. Brett 3d (1984), 122 Ill. 3d App. 191.) This with the test set forth in United comports States v. Mendenhall 544, (1980), 497, 446 L. Ed. U.S. 64 2d 100 S. There, Stewart, Ct. 1870. Justice portion in a the opinion joined by of Justice stated that a Rehnquist, seizure has occurred implicating when, fourth amendment “in view all of the circumstances sur incident, rounding the person reasonable would have believed that (Mendenhall, he was not free to leave.” 554, 446 at 64 U.S. L. Ed. 2d 509, 1877; at Michigan v. S. Ct. at Chesternut 100 see also (1988), 567, 565, 486 100 L. U.S. Ed. 2d The Mendenhall 1975.) S. Ct. Court noted the following examples circumstances that indi might seizure, cate a even where there no attempt (1) leave: “threatening officers”; presence (2) several of a “display officer”; an weapon (3) “some of the or physical touching person citizen”; (4) or language indicating “use of tone of voice Men- with the compliance request might officer’s compelled.” denhall, 509, L. 2d at 100 S. Ct. at 1877. 446 U.S. at 64 Ed. en token, determining the same the test whether an

By totality also an analysis counter is consensual involves has the prosecution circumstances and is matter burden S. at 64 L. Ed. 2d at proving. (Mendenhall, 446 U.S. However, defendant prove Ct. need not 1879.) prosecution Rodriguez withhold his consent. Florida knew could 165,105 U.S. 83 Ed. 2d S. Ct. 308. L. occurred,

If rather than a consensual encounter has a seizure on whether the seizure was a only then should attention be focused cause, investigative full or instead a limited requiring probable arrest (See Terry v. Ohio (1968), called a stop, commonly Terry-type stop. 1, 889, 1868.) Although Terry-type 392 L. 2d 88 S. Ct. U.S. 20 Ed. cause, it does some stop require probable require adequate does not (Reid of probable for the intrusion short cause. objective justification v. 438, 890, 2752.) 100 A Georgia (1980), 448 U.S. 65 L. Ed. 2d S. Ct. Terry-type stop. (Terry, for a qualify justification does not hunch People 1880; 906, also 22, 392 at 20 L. Ed. 2d at 88 S. Ct. at see U.S. v. Instead, stop for a Terry-type Long, 99 2d 228.) justification Ill. at with which, together facts taken consists of and articulable “specific intru facts, warrant reasonably rational inferences from those 21, 906, 1880.) Ed. at 88 S. Ct. at (Terry, 392 at 20 L. 2d sion.” U.S. “must be Terry-type stop the rule is stating Another way that the suspicion least a reasonable and articulable at supported by (Reid, 438 U.S. at 440, activity.” seized is in criminal person engaged The facts or must 894, 2754.) suspicion 65 Ed. at 100 S. Ct. at L. 2d (Terry, the search. 396 U.S. at the of the seizure or be tested moment In 906, 1880.) evaluating at 21-22, at L. 2d at 88 S. Ct. 20 Ed. circum totality consider stop, of a the court should validity 1, L. 2d v. 490 104 Ed. (United States Sokolow (1989), U.S. stances. Terry Illinois, rules have been codified 1, 1581.) S. Ct. In 109 Procedure of of the Code Criminal and 108—1.01 sections 107—14 107-14, 108-1.01). Section 1987, 38, ch. pars. Stat. (Ill. Rev. part: in relevant provides, 107—14 as a officer, having peace identified himself

“A after peace in a reasonable officer, person public place may stop any from the cir infers reasonably time when the officer period to commit about committing, the person cumstances ***.” Ill. Stat. ch. offense Rev. or committed an has par. 107—14. in- in the the threshold issue principles, to the above

According defendant initial encounter with case the officers’ stant is whether seizure, unnecessary constituted If then it is a seizure. it was not a sufficient, or determine articulable facts justified whether was by view, of defend suspicion. a reasonable In the circumstances our ant’s initial encounter with indicate that the encounter the officers was cor agreed They consensual. He to the officers. neither speak through him prevented departure physical nered nor otherwise contact, voice, or him language, tone of nor did threaten physi cally verbally display They or or did not block his any weapons. way and he could have through directly exited train station doors of him. They front did not retain his driver’s license his travel itinerary. To the immediately Kolman returned defendant’s contrary, driver’s license and li itinerary. travel If retention his driver’s (see cense would have to negate Royer, tended his freedom to leave 1326; 460 U.S. at 75 L. Ed. at 2d 103 S. Ct. v. People (1986), 142 Ill. Hardy App. 3d then immediate return of the 108), driver’s license to have opposite defendant should had the effect—it should have communicated to that the defendant officers were satis fied (People with his identification (1984), v. Brett Ill. 3d App. 191), and that (See defendant was free to leave if he do chose to so. People v. (1987), Indeed, Claver 3d App. 62.) Ill. Kolman specifi cally informed defendant that he free to leave at time. Fur thermore, she specifically informed him that he did have to con sent to a search. This statement is also consistent conclusion that defendant was free to leave. Miller 124 Ill. People App. 3d 620.

We that person believe a reasonable position defendant’s would have considered that free he was to leave. If defendant be lieved that he leave, was not free to then his belief was unreasonable. Brett, v. 122 (People Ill. at In our App. 196.) opinion, 3d the State met its burden under United v. States Mendenhall of that proving consent defendant’s was freely voluntarily given. the Although State did not have to show that subjectively defendant knew he could refuse to (Florida 1, consent v. Rodriguez (1984), 469 U.S. 83 L. Ed. 165, 2d 308), 105 S. Ct. the record discloses that spe defendant was cifically advised that he to leave and he was free could refuse to consent. It was after defendant started to tremble and did not respond Kolman’s statement bag that defendant was told his would be detained. We conclude that defendant failed to meet his statutory burden of the allegations in his proving motion and that suppress not the was seized within of the meaning fourth amendment. Ill. 1987, 38, Rev. Stat. ch. par. 12(b). 114— summarize, To the manifest of weight the evidence discloses 424 was agents

that the encounter between defendant and the narcotics the meaning a seizure fourth consensual rather than within Therefore, defendant’s motion amendment. the trial court’s denial of evidence, weight the manifest suppress against bag defendant’s shoulder not taint the search of encounter did therein or of found and did not warrant cocaine suppression defendant’s statement. bag did

Furthermore, shoulder the search defendant’s retaining pos his interest in not violate fourth amendment protected v. Place States property. session of effects and United personal 110, 2637, this 696, L. S. Ct. allows (1983), 462 U.S. Ed. 2d if the law a limited intrusion interest to be overcome and authorizes contains narcotics. luggage officers have that the suspect reason Place, not a prerequisite v. cause is probable Under United States instead, upon can be seized based luggage; luggage the seizure of 702, L. U.S. at (462 contains narcotics. suspicion reasonable case, manifest 117, In the instant 2642.) Ed. 2d 103 S. Ct. at reasonably suspected of the indicates that Kolman weight evidence Moreover, Kolman narcotics. that defendant’s shoulder contained bag when bag arrest defendant had cause to search probable hold that narcotics. We bag that the contained defendant volunteered by preceding shoulder was neither tainted bag the search to a violation separate amounted events nor independently fourth amendment. cases cited following with the are consistent

Our conclusions v. De recently People For we noted example, defendant’s brief. and es analysis Ill. an outdated (1982), 104 3d follows App. Lisle 172 Ill. People (1988), v. Forrest sentially (See has been overruled. 113 Ill. App. v. 3d 385.) People 3d In Kiser App. Consider exit onto an escalator. blocked defendant’s agents physically in Reid factor used Court and articulable the reasonable ing 2752, to 2d S. Ct. 65 L. Ed. 448 U.S. Georgia (1980), con justified, we must investigatory stop an determine whether consensual, and not in the instant case was the encounter clude that stop. an investigatory affirmed.

Judgment

COCCIA, J., concurs. PINCHAM, dissenting:

JUSTICE approval at and their in the case bar police I The tactics dissent. trial court and advance the promote despicable this court oppressions known to in totalitarian states in cher- police exist ished civil liberties are enjoyed by only privileged powerful few. IT HAPPEN

“CAN HERE?” Thursday, On June A4 the page following (excerpted) article in the New appeared York Times: NIGERIA,

“IN A TO ROT IN JAIL IS HAZARD OF THE INNOCENT: LAGOS, Nigeria man with no criminal 26-year-old record —a

is picked up by police driving while near his home. He is anyone, wife, allowed contact even his whom he mar- ried the day spends before. He the next 8 years jail, with- out trial.

That was the of experience Joseph Odogu, who was accused of armed robbery in the of summer 1980. Inexplicably, month month, after his trial date was And postponed. because he was arrested under a decree enacted special by Nigeria’s military Government, he could not be free bail. horrid,

Tt was a horrendous, situation,’ dehumanizing said Olisa Agbakoba, Mr. Odogu’s lawyer and chairman the La- gos-based Civil Liberties Organization. ‘And while he wasted in jail, stolen, his car ransacked, his shop his landlord out, chucked him his mother died and his wife deserted him.’ Agbakoba What Mr. taking soon discovered after on Mr. Odogu’s case last year was that his client fallen through had Nigeria’s cracks of often harsh byzantine legal system. Prosecutors, fact, decided within months of Mr. ar- Odogu’s rest that he was the wrong man. But no one bothered to tell him, jailers or the courts.

* * ^[*] cruel, Mr. Odogu’s case seem but Mr. may especially Agba- koba says it one hundreds such accounts des- peration various cells and detention Ni- centers across geria. ago, Orga-

Since was formed years two Civil Liberties nization has documented a continuous stream cases illustrat- ing shortcomings Nigeria’s and law judicial sys- enforcement tems. case, the are

Sometimes, Odogu’s problems as in Mr. caused work, albeit on a scale. by sloppy police grand however, evi- alarming has uncovered group Increasingly, In the first six widespread rights dence of human violations. de- 1988, disclosed that 54 group months of for example, awaiting while here died single prison tainees federal trial; not dispute. that the Government does instance, recently brought

In class- group another prisoners of 70 action lawsuit incarceration challenging 10 trial of 3 to periods who had been for detained without 29, Times, N.Y. June far, So 20 have been released.” years. 1989, A4. remotely as that even suggest

No rational is so bold person our nation. But State or in similar situations occur our presently “It can’t person suggest happen is rational so bold as free societies is fallen democracies and History replete here”? with To happen “It can’t here.” preached, and smugly believed fail to remember our mistakes George if we paraphrase Santayana, them.1 repeat we are condemned to it, free teaches, society if learn that no

History only we will The within, warning. without suddenly, ever and totalitarianized unrelenting but danger gradual, true to constitutional freedom is of self- in the name perpetuated of constitutional guarantees, erosion History AND as “LAW ORDER.” euphemistic such serving phrases encroaching state danger also of an teaches that fervently I are most wholeheart complacent. is most when the citizens perilous libertarian, Frank Benjamin edly agree great patriot with that lin, willingly those who would forfeit who eloquently prophesied security up will end a little of their freedom for a little more neither.2 sage advice: “Carelessness also endorse Adlai Stevenson’s our is about freedom security dangerous;

about our is carelessness we have The truth is become dangerous.” plain simple also freedoms, and our precious are careless about becoming increasingly Boyd v. of it. United example opinion but another majority now older 616, 6 S. Ct. L. Ed. States U.S. more are, vibrantly if teachings anything, than But its century. a full past are condemned quotation is: “Those cannot remember the 1The actual who repeat it.” temporary safety give up liberty de- 2“They to obtain little that can essential Pennsylvania, liberty safety.” Review of 1759. serve nor Historical neither relevant than when written: today they were

“[Ijllegitimate and unconstitutional their first practices get in that footing way, namely: by approaches slight silent legal deviations from modes of This can be ob- procedure. viated to the rule that constitutional by adhering provisions security person and should be con- property liberally strued. A close deprives and literal construction them of half their and leads to efficacy gradual depreciation right, if it consisted more in sound than in substance. It is the duty courts rights constitutional the citi- watchful for zen, and against any stealthy (Em- encroachments thereon.” phasis added.) U.S. at 29 L. Ed. at 6 S. Ct. at 535.

All this comes down to a simple question, but one well worth If the courts contemplating: refuse to and will not and en- protect force the constitutional guarantees citizens, of our then who will? If on one day permits court of passenger search because he is first off train, bus or plane, “nervous,” or is is it “logical” not or “consistent,” or, indeed “stare decisis” for a court on the next day to sanction the search of a passenger because he disembarked last or is not “calmly”? farfetched, This at all as Justice Marshall observed in his dissent in United States v. 1, Sokolow 490 U.S. 104 L. 1, Ed. 2d 109 S. There, Ct. 1581. Justice Marshall made note of the so-called DEA “profile” and its multiple, “chameleon-like of way adapting to any particular set of circumstances.” He then listed the following authorities as illustrative of those judicially approved flexi- ble adjustments:

“Compare, e.g., Moore, United 802, States v. 675 F.2d 803 (suspect was first with deplane), United States v. Men- denhall, 544, 446 U.S. (last 564 to deplane), with United Buenaventura-Ariza, States v. 29, 615 F.2d 31 from (deplaned middle); Sullivan, United v. 9, States 625 F.2d 12 (one-way tickets), Craemer, with United 594, States v. 555 F.2d 595 (round-trip tickets), with McCaleb, United States v. 552 F.2d 717, 720 (non-stop flight), Sokolow, with United States v. 808 F.2d 1366 (changed Craemer, planes); supra, (no at 595 lug- gage), with United States v. Sanford, 658 F.2d 343 (gym bag), Sullivan, with supra, (new at 12 suitcases); United States Smith, v. 574 F.2d 882 (traveling alone), with United States v. Fry, 622 F.2d 1219 (traveling with companion); United Andrews, States v. 600 F.2d 566 (acted nervously), United States 551 F.2d Himmelwright, (acted too 14-15, 13-14, Ed. 2d at 109 S. Ct. 104 L. calmly).” U.S. J., dissenting). at 1588-89 (Marshall, cause standards for dis probable If the court relaxes the today not shall public transportation, from vehicular embarking passengers embarking identical rationale to the court tomorrow do the same on of persons indiscriminate searches permits If the ones? Constitution autos, buses,3 and why and trains traveling planes on interstate limit logically, skates? bicycles Why, even or roller motorcycles and Federal if the State and Surely such searches to interstate travelers? search and seizure against unreasonable prohibitions constitutional such their “effects” on interstate travelers and seizures of permit contact,” lack or the “eye perhaps grounds fabricated flimsy disembarkation,” degree of “nervous it, of or or “the order it or lack or “calmness,” luggage type or the amount of ness” or and seizures of intra it, identical searches permit then also they convey buses, private taxis and even subways, travelers on city insecure on their completely ances. Americans will become Inevitably will secure state tactics and streets from public homes, this is (?)...Surely, and then while in their own police only to roast the pig. down the house burn guaran- constitutional so, whether sacred might Even we debate unquestiona- out what is stamp must in order to yield tees should or n upon peo- inflicted plagues any man-made ever one of the worst bly might we usage trafficking. say nefarious narcotic ple, that of statistics, dem- even some unreliable history, matter debate this if have security privacy rights personal that as the onstrated somewhat lessened have also lessened, illegal drugs the problems related, unrelated, Unfortunately, pro- proportion. or even is no accident. has been inverse. This simply portion inex- intimately that I have been For the nearly years justice systems States’ criminal in the Federal and tricably involved firsthand law America, I listened to and observed have throughout advocate one constructionists” and “strict personnel enforcement tool,” necessary the needed being “just after another as “remedy” drugs. “Unhandcuff scourge rid society police enable the done, we have been do what needs so can the police,” requests police these I characterize again. and over urged over repeat- “If we have been only,” list” philosophy. “wish only” “if or could solve granted they that wish had this or told, police edly 639, involving (D.C. 1989), Supp. v. Winston 711 F. e.g., States 3See, Cir. United traveling Washington, D.C. from New York to stop passenger Terry-type of a bus

429 instance, drug only” police crime and For “if could problems. 4 frisk,”6 arrests,5 or and warrants, “stop utilize or hearsay hearsay searches,7 or “to “good discovery” faith” or “inevitable seizures8 warrants,9 or search warrants and tality circumstances” search warrantless arrests based on secret informers.10 We were first told that warrantless “consensual” vital to the police,11 overhears were then dev pen registers,12 wiretapping eavesdropping finally ices.13 The police pressed have warrantless aerial surveillance businesses,14 our citizens while in their homes and as well as the right cars,15 to conduct warrantless searches of their personal packages, bags, luggage,16 and even their trash.17 Law enforcement has proffered evidence as the successfully procured physical result trespass private as the result of the property,18 even commis sion of the criminal offense of the law enforcement burglary by agents themselves.19 On some occasions the have sought ap proval for entries into private premises before a search obtaining warrant,20 and sometimes without even bothering obtain a search warrant at all.21Even alimentary canals are not from the protected prying Big Brother.22 eyes 493, 1514, (1958), 4Granted in Jones v. 2 United States 357 U.S. L. Ed. 2d 78 S. Ct. 1253. Draper 307, (1959), 327, in 5Granted v. United States 358 U.S. 3 L. Ed. 2d 79 S. Ct. 329. Terry 1, (1968), 889, 6Granted v. Ohio 392 20 U.S. L. Ed. 2d 88 S. Ct. 1868. 897, 677, (1984), 7Granted United States v. Leon 468 U.S. 82 L. Ed. 2d 104 S. Ct. 3405. (1984), 431, 377, 8Granted in Nix v. Williams 467 U.S. 81 L. Ed. 2d 104 S. Ct. 2501. (1983), 213, 527, 9Granted in Illinois v. Gates 462 U.S. 76 L. Ed. 2d 103 S. Ct. 2317. Rugendorf 528, 887, (1964), 10Granted in v. United 376 11 L. States U.S. Ed. 2d 825; McCray 300, 62, (1967), 84 S. Ct. v. Illinois 386 U.S. 18 L. Ed. 2d 87 S. Ct. 1056. (1971), 745, 453, 11Granted United States v. White 401 U.S. 28 L. Ed. 2d 91 S. Ct. 1122. Telephone 159, (1977), 12Granted United v. States New York Co. 434 U.S. 54 L. 376, Ed. 2d S. 98 Ct. 364. 1987, through (1988); 38, 13Granted in 18 U.S.C. Ill. §§2510 Rev. Stat. ch.

par. seg. 108A—1 et (1986), 202, 210, 14Granted in v. Ciraolo 90 L. 2d U.S. Ed. 106 S. California 1809; 227, 226, (1986), Ct. Dow Chemical Co. v. United States L. U.S. Ed. 2d 1819; Riley (1989), 106 S. Ct. Florida v. 488 U.S. 102 L. Ed. 2d 109 S. Ct. 693. 15Granted in United States Ross 456 U.S. 72 L. Ed. 2d 102 S. Ct. 2157. 430 of the law and voracious appetite

When consider insatiable free- for constitutional community devouring precious enforcement I recall almost im- increasing hunger, doms and the to that yielding the ancient of the Walrus and mediately nursery rhyme Oysters: “ ‘0 come and walk with us!’ Oysters, The Walrus did beseech. walk, talk,

‘A pleasant pleasant

Along beach.’ briny bit,’ cried,

‘But the Oyster wait chat;

‘Before our we have breath,

For us are out of some of

And all of us are fat!’

T for said: weep you,’ Walrus

T deeply sympathize.’ he sorted out

With sobs and tears size, largest

Those of the his

Holding pocket-handkerchief streaming eyes.

Before came there none—

But answer odd;

And this was scarcely

THEY’D EATEN EVERY ONE.” have demon- question, my years experience There is no 40 me, and intrusions into per- of these invasions many strated to and threats are violence privacy property accompanied sonal course, citizen, if ever in those although, rarely to the of violence 454, 768, in, e.g., (1981), 69 L. 2d New York v. Belton 453 U.S. Ed. 16Granted 640, 65, 2860; Lafayette (1983), 77 L. Ed. 2d 103 S. 101 S. Ct. Illinois v. 462 U.S. 765, 1003, 2605; (1983), L. Ed. 2d S. Ct. Ct. v. Andreas 463 U.S. 77 103 Illinois 478, 890, 881; 3319; (1985), 83 L. Ed. 2d 105 S. Ct. United States v. Johns 469 U.S. 367, 739, 107 (1987), S. 738. v. 479 U.S. 93 L. Ed. 2d Ct. Colorado Bertine 35, 30, (1988), L. Ed. in v. 486 U.S. 100 2d 108 17Granted Greenwood California S. Ct. 1625. 170, 214, (1984), 80 L. Ed. 2d 104 v. States 466 U.S. 18Granted Oliver United 326, 294, 1735; (1987), 480 U.S. 94 L. Ed. 2d 107 S. S. Ct. States v. Dunn United Ct. 1134. 727, 468, Payner (1980), 2d v. 447 U.S. 65 L. Ed. 19Granted in United States S. Ct. 2439. 796, 599, (1984), Segura 2d 468 U.S. 82 L. Ed. 20Granted v. United States 472, 3380; (1988), Murray 487 U.S. 101 L. Ed. 2d S. v. United States Ct. S. Ct. 2529. (1987), 483 97 L. Ed. 2d 107 S. v. Wisconsin U.S. 21Granted Griffin Ct. 3164. Montoya Hernandez 473 U.S. 87 L. de 22Granted United States 381, 105 S. Ct. 3304. Ed. 2d cases more,23 sub And all judice. this and much much the law despite enforcement their community judicial apologists and other advocates often wonder or pretend why to wonder it is that aloud ever enlarging segments society declining respect have the po Jackson, States, lice. Justice a former General of the United Attorney us the gave answer he wrote: many years ago when

“Uncontrolled search and seizure is one of the first and most weapons government. effective in the arsenal of every arbitrary And one need to dwelt only briefly among have and worked people of possessed many qualities of deprived admirable but these that the rights personality know human deteriorates and dignity homes, and self-reliance persons where disappear and possessions subject are at hour to unheralded search the police. seizure right

But the against to be secure is searches and seizures one most protect. the Since the are them- of difficult officers invaders, selves the no there is outside chief enforcement of court.” (Emphasis added.) v. States Brinegar (1949), United 160, 180-81, 1879, 1893, 1302, 338 U.S. 93 L. Ed. 2d S. Ct. J., 1313 (Jackson, dissenting).

It is dispute as the beyond grown “wish list” has has been granted, and as each of provision our Bill of Rights sacred has been into an the pressed unrecognizable depletion, monstrous drug plague has become more—not think it less—acute. And I is not not serendipitous; only predictable but inevitable as the constitu- tional of guarantees diminished, the American have been people problem all, bottom, crime has expanded and accelerated. After crime and for particularly drug trafficking evince the law disrespect and the many worth individual. There is no gainsaying will people not with a law unless simply comply they respect those who Sagacious enforce it. Justice Brandéis in Olmstead v. United 438, 944, 564, where, States 277 U.S. 48 Ct. (1928), L. Ed. 2d S. of speaking wiretapping, wisely said: this Court below by sustaining judgment

“Will sanction such conduct on of The part governing the Executive? 441, 23E.g., immunity, Kastigar (1972), “use” v. United States 406 U.S. 32 L. Ed. 212, 1653; records, 92 Ct. 2d S. warrantless searches of bank United States v. Miller 435, 71, 1619; (1976), attorney 425 U.S. 48 L. Ed. 2d 96 S. Ct. forfeiture of fees and 512, 600, (1989), property, other States v. Monsanto 491 U.S. 105 L. Ed. 2d United 2657; laws, tougher sentencing (1989), S. 109 Ct. Mistreetta United States 488 U.S. 647; bail, pretrial 102 L. 2d 109 S. Ct. denial of States v. Ed. United Sa 2095; etc., 95 L. 2d 107 Ct. lerno 481 U.S. Ed. S. etc. court not re- has It is that a will principle long been settled. has hands. wrong dress a when he who invokes its aid unclean The of comes courts of But equity. maxim unclean hands Its common prevails appli- also in courts law. principle private parties. cation is in civil actions between Where actor, it are even applying Government is the the reasons for more are those of the Where remedies invoked persuasive. law, the are compelling. criminal reasons is has plaintiff The door a court not barred because The confirmed criminal is as much entitled committed crime. citizen; record of redress as most virtuous fellow no an The aid crime, however makes one outlaw. court’s is long, who it has the law con- denied when he seeks violated legal he seeks with the transaction re- very nection It wrong. dress. Then aid is denied defendant’s despite law; in order to respect pro- in order to maintain denied administration order mote justice; confidence in rule from contamination. The preserve judicial process one, It action, spoken but of inaction. is sometimes pro- to matters of as a rule of law. But extends substantive It is waived when cedure as well. A defense waived. may not But that the comes with un- pleaded. objection plaintiff the It taken clean will taken the court itself. will be hands be by the litiga- the of all despite contrary parties the wish to the tion. court itself. protects The that government alike demand

Decency, liberty security of that the same rules conduct subjected officials shall be laws, In a of exist- government are the citizen. commands to if it to observe fails government imperiled ence the will be of the omni- potent, is the the Our scrupulously. law Government ill, people it the whole good For or teaches present teacher. for is the Government be- contagious. example. its Crime If laws; law-breaker, it invites contempt a it breeds comes for anarchy. himself; a unto invites every man become law law the the criminal To that in the administration declare of may the that the Government end means—to declare justifies private a the conviction commit crimes in order secure of that Against per- bring terrible retribution. criminal —would its resolutely set this Court should nicious doctrine face.” 483-85, 959-60, L. Ed. 2d at 277 U.S. at (Emphasis added.) J., dissenting). (Brandéis, 48 S. at 574-75 Ct. time recognize every that astutely perceptive not be

One need a person unjustifiably that by policeman, harassed and ill-treated silentio, sub person very becomes to a like and at the least degree, an foe of implacable orga- foe of law enforcement and also a thereby nized The is an society. principle equal that action there every and opposite applies reaction alone to the lab. We must physics recall, Brinegar, always as Justice Jackson out in the aptly pointed courts hear the illegal drugs; about who had in- only travelers fruitful; stances in which the search the wiretapped conversa- searched, tions that revealed How travelers are criminality. many made, how of in no are many invasions occur which arrests privacy discovered, no contraband which courts never hear? about Yet the law-abiding invasions of these are at privacy citizens least as acute their degree disgruntlement undoubtedly more in- tense than in those incidences where is discovered. Judge contraband John Grady Chicago United States District Court in former assistant United States this Attorney put it way:

“The cases which come to court the ones in which the are police-citizen yielded encounter has evidence. incriminating We nothing hear police wrong encounters where are their suspicions. nothing We hear where the about instances dogs sniffed luggage and did not ‘alert for the positively’ pres- of drugs. ence The police cases which the a mere play hunch, which is what claimed to have done essentially they here, and find nothing as result of or the encounter search are cases we see never and whose would number speculation. exist, however, mere That certain, they seems un- one less were to indulge presumption police are infallible in their suspicions. are is a

When told there whole area known as ‘the non-coercive police-citizen encounter’ in are to operate, free possibility apparent. abuse Because question prosecu- abuse will arise in cases where a ensues, tion or case an aggrieved person rare where might arrest, file a civil suit for false the legal environment is not experienced by police officers one even compels necessarily encourages circumspection their contacts with danger One is the will police citizens. that conduct Terry-type it, where facts stops the did not that will justify realizing they into in called account situations where ‘no harm is rarely exists, done.’ If such it an attitude short from there step to rationalization of the which off in unjustified the stops pay *** instance, For at the recovery looking contraband. mat- in around really looking ter wasn’t retrospect, suspect the look the he quite cautiously as entered concourse? Didn’t alternative, In it over back his shoulder few times? would not any threatening aspect be too overlook difficult encounter, interview argument so as to that the justify consensual.” United States added.) entirely (Emphasis Freymuller 61, 1983), Ill. 571 F. (N.D. Supp. 67. out, Judge

As it is not unknown for the pointed policemen Grady in testimony. example, the facts or “color” their For misrepresent v. Forrest herein, People cases upon by majority one of the relied involved, 385, 616, the 172 Ill. officer 3d N.E.2d App. who testi Chicago officer was the same Officer police Boyle, Boyle Freymuller, Judge specifically in whose testimony Grady fied and that, Officer and unequivocally Beyond Boyle disbelieved. who re Crowley, Officer Richard are the same officers partner, deplane Chicago’s testified at that observed a defendant cently fact, air when, in Airport carrying luggage undisputable Midway as the line as well personnel testimony computer printouts, even showed that he was not own testimony, indisputably defendant’s all, on the at in plane Judge United States District James resulting United in Moran the defendant’s motion sustaining suppress v. John States Bonds.24 a shadow of an convey impression do intend to even occur personal and other invasions

egregious privacy, property in judges has disclosed that Federal drug cases. it been Recently telephones had Cincinnati and Miami their such American cities as 13, 1989, 1.) at un The Chicago (June Tribune revealed “bugged.”25 CAMERA FOUND AT POLITICIANS’ der its lead headline “F.B.I. HANGOUT,” equipment FBI placed recording that the audio-video Furthermore, according restaurant.26 Chicago Loop a very popular article, proprietors States conceded that the Attorney United 18, 1989, 12, 4, Lawyer, 24Chicago April Vol. No. at 1. recently FBI “showed the Bureau had 25It was revealed that documents involving Chief Earl Warren wiretapped or conversations former Justice monitored 29, Times, August [Supreme] Court.” N.Y. and at least three other members 7. section at 13, 1989, Chicago Friday, Trib- 26Admittedly nothing this new. On October the National reported, that a between FBI and une section at settlement part Lawyers of the settlement Guild in York had been reached New 1975, re- spied the Guild between 1940 and had on members of FBI conceded through Headquarters, tapped phones, Guild peatedly into Guild sifted broke Guild offices, “disrup- engaged garbage members’ law cans those individual against operations the Guild. tive” of the restaurant investigation were not the and that subject the camera and microphone everyone’s recorded conversations within their range.

Big Brother has even librarians and snooped library patrons. Librarians,” “Documents Disclose F.B.I. Investigation of Some an Johnson, article by reported pages David Al and B9 of the Thurs- day, Times, edition November of the New York states the following: institutions,

“F.B.I. agents interviewed librarians at primar- ily area, in the New York and asked the librarians to report contacts with people who identified themselves as Soviet-bloc nationals or as people assigned to Soviet-blocorganizations.

New documents show that librarians and others with whom the F.B.I. made contact during program surveillance were themselves subjected to bureau scrutiny. After a number of librarians criticized the surveillance program, the bureau conducted inquiries to determine whether were in- being fluenced aby Soviet-backed effort to discredit the program.

[**] ^[*] ‘The F.B.I. never understood why people upset were the Library Awareness Program,’ Representative said Don Ed- wards, California, Democrat of who is chairman of the House Judiciary Subcommittee on Civil and Constitutional Rights. The panel held hearings on the program year. last

‘The F.B.I. never understood that the librarians and other sacred,’ Americans think that libraries are said Mr. Edwards. ‘It’s very dismaying the F.B.I. so failed to understand what source of this criticism.’

* * * The names fed into the F.B.I.’s system files included a number librarians and representatives library-affiliated groups who had publicly criticized the offi- program, Archive cials said. Blanton,

Tom director deputy Archive, said the group determined an analysis bureau’s search that more than 100 of were people either librarians or peo- ple affiliated with library organizations.

* * * A September 1987 memo to the F.B.I. an concerned inter- view conducted at the Brooklyn public library. The memo com- plained library employees resisted the bureau’s surveil- lance effort. ‘This attitude has encountered,’ been increasingly said, adding, the memo ‘and it should not remain unchal- lenged.’

* * * Many librarians were critical of the surveillance highly pro- gram records, because it use sought to circulation library information, which list the users of part as a of the in- library vestigation. ‘We consider circulation records to be private,’ F. Krug, said Judith director of the office of intellectual free- dom for the Library nobody’s American Association. ‘It’s busi- ” you ness what read but N.Y. yours.’ (Emphasis added.) Times, Al, 7,1989, at B9. November born, I question whether American citizens bred and baptized, reared in the firm belief and conviction that have been they guaran- life, liberty teed and freedom from unwarranted intru- government sion are really willing desirous or to reveal their most intimate pri- conversations, vate actions and all of are perfectly legal, which order that government might possibly hopefully procure or some tidbits of information an Yet this unspecified subject. invariably about occurs when are and sift permitted indiscriminately inspect contraband, of innocent until find through luggage they travelers record, or audio-video who knows how conversations restau- many dining rant until the hear and guests police may something record from someone. Are the American incriminating people willing really their by helicopter, luggage have their homes surveilled examined their by police by pointing police dogs, private per- or sniffed and conversations, bread, breaking repasting imbibing sonal while and friends, I government? recorded think not! Are not and by government should not American citizens be free from their sneak- visits, their and ing, prowling library and into their librarians prying Yes, choose? most assur- their sacred freedom to read whatever edly yes! IT HAPPEN

“CAN HERE?” is, here, if, cannot but My assuredly happen answer most if, our and our constitutional heritage principles. we remain true to of this nation made ago Founding great Over 200 Fathers years some momentous con- some monumental decisions and “balanced” guarantees obligations. Among and those flicting rights, principles, right the Fathers intended to was the of an rights protect house, and in his person American to be secure in his and citizen search seizure. The fourth unreasonable and against effects States, fully binding of the United amendment to the Constitution amend- the fourteenth clause of the due process by the States upon n.4, L. Ed. 2d 643, 646 (1961), 367 U.S. ment v. Ohio (Mapp n.4) provides: n.4, 81 S. Ct. persons, in their secure be right people “The and searches effects, unreasonable houses, against and papers issue, shall but violated, and no Warrants seizures shall not be affirmation, and or cause, Oath by supported upon probable searched, the per- to be describing place particularly Const., amend. IV. or seized.” U.S. things sons of Illinois the State I, 6, of the Constitution Article section similarly provides. in the right guarantee other every this and

To insure or nulli down away, watered abridged, not be whittled Constitution from the most fied, every judge, Founding required Fathers Federal, an oath to sup take State as well petty, exalted to elected me to County of Cook people When port the Constitution. the Found oath very prescribed fill office I took that my present regard I VI, 3, of the Constitution. ing Fathers in article clause That oath I have ever done. and sacred as profound anything oath as and en defend, protect, support, uphold I adamantly demands that force, guaran privileges not dilute and convolute constitutional any perceived violate that solemn oath because of tees. will not or because this philosophy27 “swings” judicial convenient being a foot soldier case,” or for the distinction “narcotic dubious or Drugs,” compatible popular to be in the President’s “War paraphrase reason. To transitory temporal other con Heilman, my I not cut the Constitution Lillian will playwrite all due for of respect many fit this fashions. With year’s science to other courts in this court, many as on on this well my brethren (and it can be al nation, where reaching point State we are and that a modicum of truth even said with more than ready being) than the addict by drugs affected deleteriously adversely more and fundamental con perverting and stretching are the decisions judicial sustain in order to obtain and and principles stitutional freedoms convictions. drug criminal is essential Darrow, I believe fervently

Like Clarence of never-ending pursuit in the vigilant ever men and women be strong cases, once said: most famous Darrow one of his Defending freedom. Emerges Rehnquist Leader The Court’s As A Builder Consensus 27See Skillful Of Right, 1; Turned Journal, 29, 1989, The Year the Court Majority, at Street June Wall Times, 7,1989, July at 1. N.Y. “I know that the nation that is not of liberty watchful its will it. lose I know that the individual that will not stand for his rights will have no and I rights, believe the first duty every American protect citizen himself and his country in all the liberties we have and all that we can get.

You can only protect your liberties in this world by protect- ing other man’s freedom. You can be free if I am free. The same thing get would me used to may get you, the government that is not strong enough to all its citi- protect zens not to live ought upon Stone, face of this earth.” I. (1941). Clarence Darrow for the Defense I applaud Judge also Chief lines in his opening dissenting Wald’s v. United States Bonner opinion (D.C. 1989), Cir. 874 F.2d 830: citizens, “As we owe wholehearted to law enforce- support ment officials on the against front lines the war illegal judges, duty our is to ensure that our laws continue drugs. As govern the conduct our law Other- enforcement officials. wise we an losing important are risk even more battle— abiding battle to remain a law in the face of law society, vi- drug added.) olators as destructive as dealers.” (Emphasis dissenting opinion United States Judge words in his Ferguson’s Salas (9th 1989), Cir. 879 F.2d are equally compelling: metaphors images of battle the “Invoking govern- has drugs’ ment’s ‘war made casualties of constitu- already Treasury See National personal tional protections dignity. Von Raab 656, 686, Employees Union v. 489 U.S. [103 J., 715,] (Scalia, L. Ed. 2d 109 S. Ct. dissent- eradicating underlying goal However laudable ing). that we do not eradi- drugs society, our we must ensure process serving cate the Fourth Amendment in the not create reasonable searches.” goal worthy aims alone do — added.) 879 F.2d at 541. (Emphasis Poole, long past, present, Like lament Judge future: fear for the frenzied approaching in the of this when history country

“There was a time States courts—un- judges judges United especially —and to honor the out of epochal history derstood and were anxious strictures on the issuance of search developed jealous too, time, did not feel the judges warrants. There was when to which bought protections every those urge dearly weaken ***.” government against citizen is entitled as abuse

439 (Poole, 678 United States Luk 1988), F.2d (9th Cir. J., dissenting). to

In these 20th we are have waning years going century to of which what kind face some hard the most difficult questions, our of a are to leave to our children and to chil- country going we them a nation dominated really dren’s children. Do want leave we home and by pervasive police country constant A where surveillance? office are almost as a matter of wiretapped and surveilled phones A travel ac- country being course? where citizen cannot without costed seize are those by petty seeking officers and search? There it who dislike the rule results exclusionary many because instances in the suppression probative all incriminating recog- evidence. We however, nize this. The like it question, not whether we but whether there exists a viable alternative. “al- Unfortunately, ternative” is to entrust our to the precious liberties tender mercies one, of the I, agree am not No can- police, going that. cer patient treatments, “likes” but the al- radiation chemotherapy is far less ternative desirable.

“CAN IT HAPPEN HERE?” Justice Thurgood given Marshall has the answer: must we substantial social costs pay result

“[S]ometimes of our commitment the values we at the espouse. But end day presumption protects innocent; innocence the shortcuts take we with those whom we believe to guilty injure only and, those accused wrongfully ultimately, ourselves. *** Constitution, Our two began whose construction centu- ago, ries can shelter us forever from the such evils of un- checked Over power. slowly, through has our ef- years forts, durable, grown more more and more expansive, just. But it cannot protect courage, us if we lack the and the self- States restraint, to protect ourselves.” United v. Salerno 739, 767, 481 U.S. 95 L. Ed. 2d 107 S. Ct. J., (Marshall, dissenting). It these thoughts is with that I turn to the case bar.

II defendant, The Jones, Bruce an charged information with 31, 1987, possession March intent to deliver more than 15 grams a substance cocaine. Prior to trial containing the defendant made a motion to arrest and to evidence. one quash suppress Only witness, Kolman, defendant, Christine testified on the called her hearing testimony of the motion and is as evidentiary complete follows.

Direct Examination: I am to the assigned Chicago star number is 17864 and

“My assigned Section. I was so on Department Police Narcotics 30, 1987. I was to a de- assigned special March On that date I was to the assigned Airport tail in narcotics section. airports deals interdiction at the and Squad drug which with train stations. Bruce March I saw Jones at the Union Sta-

On I first saw him at 9:10 Chicago, approximately tion Illinois. he off a leaving getting A.M. as was train train 9:20 I just that had arrived in the station. was located wait- area which inside from where the trains ing just pull room in. was agent approached Captain

The first Mr. Jones He first Mr. Jones at the police. approached the Amtrak Farry exits escalator the mezzanine area which out to top of an at I Mr. Jones he en- the other areas the station. observed up into the and until the time that was ap- tered station and after proached the Amtrak officer this was he had by gone the escalator the mezzanine up level. Mr. I him and Jones. myself

I then identified approached I officer and I showed him Chicago my told him was a police I Chicago Department. identification from the Police was I was I plain Captain Farry. approaching clothes as was As he was the Amtrak Captain Farry heard from say police. questioned during After I identified I Mr. Jones myself I asked I could point one him search questioning if I did not then give He said he did not wish to consent. bag. go bag. into the immediately bag carry-on bag did which was a

Later I search any I a search warrant nor did not have carrying. he was did I took officer, nor an arrest warrant. state- other did we have arrest was after he was after his ments from defendant investigator. the Amtrak by first approached I him I saw him in the Union Station did observe When local ordinance or state statute. Nor was I in any to violate life or harm defendant.” my any type fear from added.) (Emphasis state’s attorney: the assistant

Cross-examination years doing officer 13 narcotics in- “I have been work for one those vestigation year. During years about was which was nar- assigned Investigations Youth Special cotic I was investigations involving juveniles. assigned Then Chicago Department, narcotics section of the Police Force, Drug Task with Federal Conspiracy cooperation working Administration and also this Task Force Enforcement at the and train drug airport interdiction stations. date, I awaiting On this arrival train at the Union with Glynn Station Officer Powers of the Sergeant Chicago Police Department, Captain Farry Detective Force, from Dennis Kroll the Amtrak Police along Special Agent Drug Mel Scabilion of the Enforcement Administration. We were awaiting arrival Train No. 29. Amtrak We had Kroll Detective Amtrak Police that there information from Lauderdale, was a party travelling Ft. Florida to Chi- from cago Washington, via on a one-way D.G. ticket Ft. Lauderdale, and this party also that had made several other trips sort particular this This was passenger Bruce before. Jones.

At a.m. I approximately 9:20 saw Bruce Jones de-board that particular train. was He with another male. As Mr. Jones through walked the Union Station he walked without any through hesitation waiting through the area the rest of the up station to the But walking stairwell. as he was through he turning looking kept around behind him and he eye made contact with me several and times the other officers as we were him surveiling the station. There through possible were of people hundreds in the station at time. this The [sic] defend- ant eye made contact with me and I several times observed him ride escalator to the up mezzanine level and as he was riding up eye escalator he made contact me one or two times.

When he exited the on escalator the mezzanine level it was at that when point Captain Farry him. I approached joined Captain Farry shortly thereafter. The area where escalator ended was mezzanine area and there exit were doors onto other lit, areas onto the street and below to the bank. It’s well well trafficked. There were other passengers going and up down other escalator and stairs many people and going It pass us. was very, very crowded at that time. [sic] I

Upon approaching defendant identified as a myself Chicago officer I my and showed him identification I my alongside which is was the defendant but badge. standing I him arm. No was not nor touching any way, grabbing front of standing one was the defendant and the defendant pinned against was not the wall or the counter. In front of up I Be- defendant as identified were exit doors. myself me. Nei- Captain Agent sides Mel Scabilion was with Farry, Kolman, Agent ther or at Captain Farry was Officer Scabilion weapon. time the defendant. I did not any touching display my agree I asked would with us gentlemen they speak both if I time they agreed speak said and with us. At that yes some asked both their train ticket and copy them license, I an Illinois or driver’s received identification Driver’s and a the travel gentlemen copy license from both 26th itinerary, the tickets Mr. Jones for travel on March via return via on March airplane to Ft. Lauderdale and train After I man 29th. license learned that the other reading I was Edward Borner. read the documents and returned them to Mr. Jones Mr. Borner. a narcot- conducting

At that time I that we were explained investigation long they ics and I had asked both of them how plea- if there on or they had been Florida and were business pre- Mr. that had there sure. Jones stated been since vious and was there vacation. March Thursday Jones at asked me is this point Mr. what Tuesday. conducting all about that we were a nar- again explained cotic I had Edward and Bruce investigation and asked Borner if illegal Jones narcotics on their they any had person At their of them no. time I told baggage. replied Both arrest, were they them were not under free to leave time. any

During this conversation voice was not raised above my At Mr. point tone at time. I asked conversational give if us to search they Borner and Mr. Jones would consent right that had a to such bags. they their I told them refuse time, said, yes, that Mr. Borner ahead and go consent also. At his looked Mr. he did not bag. search I then toward Jones and he very to but and was respond my question appeared nervous to that not been shaking, trembling. Prior he had physically or shaking trembling. Since Mr. did not I him he respond again Jones asked if and he bags

would a consent search his at that time give give again wish to consent. I told him that said he did not not arrest. And they were free leave and were under temporarily then I I was de- explained going further Mr. bag. tain Jones’ by The it to a purpose inspection was to an narcot- subject if I dog bag ics detector did alert would dog, a search that would sniff the get dog bag warrant. The and this is their means to trained narcotics detection de- Mr. then I search that he bag, tect. Jones said that could it, it for had narcotics in but was someone else. He carrying or just touching grabbing blurted this out. No one was him him at that did point. My anyone was not drawn nor weapon else have their No was weapons threatening drawn. one defendant or any way. progress His movement was not way point. blocked He did not a any express desire to leave the or cease area the conversation.

I then searched the a bag plastic bag recovered clear containing powder. white I believed it be cocaine. I then Mr. placed place defendant under arrest. I did not Borner bags arrest under because his were searched and there was nothing in his bags.” (Emphasis added.) found Redirect examination attorney: defendant’s day “The this I incident had received before information

that Mr. particular Jones was to be on this train. I going be- lieved the ticket was a I purchased travel through agency but don’t recall if it was card. I not by check credit do believe I Captain Farry was aware on March 30th that of Am- trak had received information that had pur- defendant chased a ticket for this an trip through American Express card. I purchased credit know that he had the ticket through travel agency nothing wrong there’s purchasing ticket travel no through agency. have idea how many per- on the sons train that had day purchased through tickets tra- agencies. vel On March 30th I was the name given Bruce but was given Jones not to what Mr. photograph Jones like. Mr. off train he got looked When Jones looked at me times, a number of several times.

As Mr. Jones went he up appear the escalator did not ner- vous but turned around more times and several looked at the officers, surveillance me. far as As I know he just looking behind at us which would been myself Agent have got Scabilion. When he to the end of the up escalator Captain started toward exit and walking approached Farry getting him. other behind Mr. Jones off There were people Bruce to stand and Jones continued Captain Farry escalator. I and stood as five feet from the escalator that’s where feet KroII Amtrak about 10 or 15 got off. Officer from was I away good away. me and Officer was a distance Glynn from me don’t him in near being proximity recall where view, I out of my and Scabilion. Powers was Agent Sergeant not come Sergeant don’t where he was. Powers did know over. that

I don’t recall whether I received the information Wash- through Ft. Lauderdale travelling was defendant from I As soon as identi- ington Chicago on the 30th or 31st. himself, Captain fied Agent and Scabilion identified myself There 50 feet. Farry from us but within away stayed walked that was Mr. Jones’ answer he had been nothing unusual about Thursday. in vacation since Florida on bag The I him I could search his first time asked whether a give I he again he asked him and would respond. didn’t if give did not his and he stated he wish bag consent to search standing that other were still his consent. At time the officers upon my experience there to him in the area. Based talking per- it is unusual for a present are other officers where there I opened up in to the officers. talking son nervous bag That plastic found an item bag wrapped plastic. I opened up newspaper. newspaper was a wrapped nervous, Ias appeared the fact the defendant Besides that times at described, couple glanced have over shoulder I agents, me the other I also unusual considered travelling one-way he on a had was previous knowledge he down there on ticket, train and I also went observed ticket, made several previous and that had one-way plane March that unusual on to Florida. I considered trips down came the Am- that I had received 31st. The information March 31st. I knew March 30th and personnel trak Police Bruce somebody named Jones investigating that we were time, March as I recall on received that first information added.) 30th.” (Emphasis during admitted or evidence testimony There no other was evidentiary hearing. motion suppress testimony compelling demonstrates foregoing

Officer Kolman’s not go should Freymuller admonition Judge Grady’s reason why in the other two identical case, practically unheeded the instant officers, cases these same hereinafter discussed. Judge Grady warned in Freymuller:

“It may recall, fact, be too difficult to after the that the person stopped without an articulable basis for actu suspicion *** ally behaving quite suspiciously stop. before The pressure on a police officer to make an case when indictable he has recovered contraband must be considerable. The temp tation to color the to support prosecution an indi facts who, all, vidual just has been to be violating the after found law is obvious.” (Emphasis added.) Freymuller, 571 F. Supp. at 67.

It appears from Officer Kolman’s testimony that the officers learned for the first time the identity of Bruce Jones when they stopped him, and questioned learned, and perhaps likewise also for time, first him, from traveling itinerary. Significantly, unlike Draper United States 358 U.S. L. Ed. 2d S. Ct. and Draper progenies, Officer Kolman did not testify she, or any other officer given, race, or had any physical, wearing or apparel any other description Jones, of Bruce from any Indeed, source. no such information likely could have been forthcom- ing to Officer Kolman via Jones’ ticket purchase, as stated by Officer Kolman. How these officers were able to Bruce identify Jones from among the many passengers who were the terminal is not re- vealed in us, the record before except, perhaps, Judge Grady cau- tioned in Freymuller, all the information about Jones was first ac- quired by officers after they stopped and questioned him.

It is significant also that Officer Kolman did not at time tes- she, tify or any officer, other had been informed by or anyone had any knowledge whatsoever that Jones, defendant Bruce or his traveling companion, Borner, Edward was in or any way to any de- gree involved in any narcotics. Yet both citizens, these American alighting from a public in a conveyance, public place, were stopped, interrogated and required produce and present to law enforcement officers their identification and explain their itineraries to them.

These police state tactics and inquisitions, stopping grill- ing citizens, two American them to requiring their justify travels officer, to the reek of the police state tactics known to exist Hitler’s Germany, Communist Union, China and the Soviet and totali- Africa, tarian South where prohibited citizens are ex- traveling cept by police permission in the form police-issued traveling I passes. note distressfully that uniformed armed guards, regularly stationed at the entrances to this public building downtown Chi- Center, cago, the in which this court and the chambers Daley judges’ located, citizens, of this prohibit including judges, court are ac- cess to the the first floor the citizen building except upon above included) sheriff, an issued (judges presenting pass admission or citizen I upon being grief, searched. With also note equal identical restrictions and conditions are on prohibitions, imposed downtown, American public citizens at Everett M. Dirksen Fed- eral Court Americans and other have Building. freedom-loving people given their lives such tactics and freely very against govern- mental regimes. officers no Jones or

Clearly, probable stop had cause Bruce Edward Borner. The trial court this drastic con- obviously recognized stitutional of this validity reg- and therefore deficiency predicated iment of six de- surrounding, stopping, interrogating, armed officers identification, manding threatening searching seize and Jones’ luggage ground on the dubious and fallacious of consent. will not volatile conse- express my speculate possible concerns had either or Borner further or Heaven for- quences verbally, Jones bid, physically resisted. counsel,

After the trial hearing testimony, argument this court stated ruled:

“Well, here; I think we have two issues first of all is really concerned, issue, as far I’m is the simplist which is bag. to touch the right bag right issue the to search the they going There is no about it. Once said were question they Blake, v. had they to hold the United States bag, relying upon of time. have the right period They a to detain it for a short it the search if the dogs sniff and thereafter obtain warrant positive. came When dogs basically up anything can the bag, got defendant knew this and said search I’ve ‘you me, in it it doesn’t to it to some- belong belongs narcotics but arrest, else,’ they had cause for body [they] probable well as the consen- also had cause the search as probable basically sual at that time when the defendant was search —the him, to some- belonged to it belong narcotics he it doesn’t says issue, issue, stop is the initial the main else. The second body it a sei- into two words and is key and the cases break down a consensual encoun- it what call in these cases zure or is is you rely upon which basically ter. talk seizures We about that basically Justice McGloon and by one written basically that at all any stop And that basically says v. DeLise. People However, if look you is a seizure. is a freedom of restraint and thereafter, Myler v. all People the cases which follow v. Britt motion, People your also cited you basically follows that case. That case initial case. There nobody was was attempts one written thereafter Justice who to by Wilson it it all law distinguish changed but was when United Rudegast came down with Florida States Court Supreme Florida v. Royer Royer. case, as well as believe the So [sic] I disagree. based the law which I have here He was upon in an area here accessible. It was stopped easily where was nothing more as the Courts to as a consensual en- referred counter as opposed to a based the law Therefore, upon seizure. Ias it at present see to time Motion has be denied.” added.) (Emphasis

Ill It is patently clear from Officer there testimony Kolman’s was voluntary no in this case consent and that the seizure search of Jones’ luggage premised duress, on police coercion and ex- pressed and implied. we

Presumably, agree that order for a custodial arrest and search of the defendant occurred, have probable cause to arrest him However, must have existed. we need this not reach question, because divided Court held Supreme has officers have a right to approach in an complete stranger airport, depot, in a bus station, train street, on the or in other any public place request permission speak long so as it is at question and/or the stranger, all times clear to the person approached so he or she maintains the right at questions all times to answer and to walk refuse away. This is exactly Royer what Florida v. held: enforcement officers do not violate the Fourth

“[L]aw Amendment by merely an individual on approaching the street or in place, another him if public by asking he is an- willing swer some questions, by questions to him if the putting person listen, willing by offering evidence in a criminal prosecution voluntary answers to such questions. [Cita- Nor would fact that the officer identifies himself as tions.] officer, police more, without convert the encounter into sei- zure some requiring objective level justification. [Citation.] however, The person not approached, ques- need answer any to put him; indeed, tions to to may ques- decline listen He tions may go at all and his may way. [Citations.] reasonable, detained even without momentarily objective so; his to listen or answer does grounds doing refusal for not, more, grounds.” added.) (Emphasis without those furnish 497-98, Ed. at 75 L. 2d Royer, Florida v. U.S. S. at 1324. Ct. I Kolman Bruce Jones agree approached

So when Officer 31, 1987, a.m. on March at the Un- companion and his at about 9:10 as a officer and ion and identified herself Chicago Station them, on the to to Officer Kolman was speak requested permission Likewise, clearly fair and of the foul line. where record legal side no restraint was physical employed upon shows that force agreed to answer Of- defendant or his defendant companion, etc., vacation, itinerary, his travel questions ficer Kolman’s about his authority. of her Of- proper scope Officer Kolman was still within the for to search his Kolman asked the defendant permission ficer next record, and this on the state of this had Again, proper was luggage. my bag, can search I’ve the defendant then said at that “You point, else,” I it for someone carrying probable in it but am got narcotics existed for the search of the immediately would have surely cause contraband, and the arrest of the defendant. bag, seizure (and to would suppress that occurred the defendant’s motion Had overruled, properly the defendant con- should) have been properly victed, writing I this dissent. But that not what would not be events, though one would sequence be- record reveals was the reading majority opinion. lieve so from Kolman asked the defendant is that when Officer What occurred refused immediately his defendant bag, search permission Officer by is made clear abundantly his This give consent. questioning After the defendant and testimony. stopping Kolman’s etc., of his whereabouts, trip, the purpose about the defendant follows, questions put response Officer Kolman testified Attorney: her the assistant State’s Now, say Mr. Jones

“Q. anything you? at that did point all about. Yes, he asked me what this A. then Q. you say? What did in- conducting I we were a narcotic explained

A. again Bruce Jones Borner and and I had asked Edward vestigation or in their person narcotics on their they any illegal had if baggage. response question? to that

Q. What no. replied A. them Both of What, next? you say

Q. anything, if did arrest, them were not under A. time told At were free to leave at time. they any Q. conversation, during Kolman, Now this was your Officer voice raised above conversation tone at time? any No,

A. sir. Q. What, if anything, point? did at that you say I At that both Mr. A. point asked Borner and Mr. Jones if they give bags. would us consent their to search you Did tell them have

Q. rights they about would re- garding that consent? Yes, I I did. told had a

A. they right them to refuse such consent also.

Q. What, Okay. if did Mr. anything, Borner say time?

A. At said, that time Mr. yes, Borner ahead. go Q. As to what?

A. Go ahead and search his bag.

Q. Did you point at that look towards Mr. Jones? Yes, I did.

A. Q. Did he respond your question? to No, he didn’t. And A. appeared very nervous and he was physically shaking.

Q. Was he trembling? Yes,

A. sir. Q. Prior to you asking question whether you could his bag search was he trembling shaking before that? No, A. sir.

Q. It was after you asked him the question, is that correct?

A. That’s correct.

Q. next, Okay. What happened Officer Kolman? I Again since A. didn’t—since Mr. Jones did respond I him give asked he would a consent to search bags; con- if sent us bags. to search his for what, Q. And anything, did Mr. Jones say? if A. At that time he did to give said he not wish a consent. Q. Okay. if did anything you What at that say point? A. I him again told were free to leave and they then I were not under arrest. explained that I And further was Mr. going temporarily bag. detain Jones’ Q. For purpose! what I it going inspection

A. to an subject by a narcotic dog detector did alert dog bag get would if search warrant.

* * ^[*] Now, about Q. point at that Mr. Jones explaining after dog say anything you? detective did he narcotic [sic] Yes, A. he did.

Q. he say? What did got A. I’ve narcotics it says, you my bag, He can search added.) (Emphasis but I’m someone else.” carrying Later, on examination the defense Officer attorney, further testified: Kolman Now, “Q. you permis- it wasn’t Mr. denied until Jones after him you you

sion to his that told that would baggage search checked-out, his there and it or corrects keep bag have sniffed words, yes. A. in those but Not Q. leaving Mr. choice between his you gave Ok. So Jones a searched, it or it bag walking away having and you right? it no.

A. state that way, didn’t Q. Well, you bag, detain his you told him that would cor- rects

A. That’s correct.

Q. you permis- told that he had denied you And him after bag, youl sion to the didn’t search A. correct. That’s Q. you Mr. that you it wasn’t until told Jones And after checked, it his have it wasn’t until bag

would detain and after the that bag,’ then can search is cor- you that he said ‘Ok rects added.) (Emphasis

A. That’s correct.” Thus, is and clear the abundantly unequivocally the record to Officer Kolman to give voluntary refused to his consent defendant being told bag by his and that relented after Officer search his have been bag. that the would retain What should Kolman “cooper- was that the defendant’s clear to Officer Kolman manifestly that, words with Officer Kolman had ceased and the ation” should have been further v. the defendant “de- Royer, Florida for objective grounds even reasonable do- momentarily tained without at 75 L. at (Florida Royer, 460 U.S. Ed. 2d ing so.” have at Kolman should have must realized 1324.) S. Ct. Officer all, point duties at that she obligations her constitutional —after wide-ranging with 13 considerable and years was a policewoman in the enforcement of controlled substances especially experience, did, however, inform immediately statutes. What Officer Kolman to upon learning defendant of his refusal consent voluntarily the search bag going of his that she and the other officers were seize the it to a narcot- bag dog-sniff by forthwith and submit test ics unit canine. And was these statements Officer Kolman involuntarily coerced and induced the defendant submit to the search of luggage.

The proper questions resolved, therefore, whether Offi- are cer possessed bag Kolman to seize hold it and sub- right mit it to a If dog-sniff “yes,” test. the answer to question then the defendant’s and his statements “consent” was irrelevant if obtained; “no,” were then both the “con- properly answer sent” and the “statement” are Kolman’s ille- product Officer gality.

Unfortunately, ques- trial court did not focus at all on these tions and neither does opinion. Both trial majority court and the majority opinion agents assume that of the law erroneously have some right inherent passenger’s reason, seize a luggage or, indeed, all, for no reason and to luggage submit that to some “treeing” or “pointing” dog, against passenger the will of the so long as the passenger However, is himself herself not or seized. un- der either the latest authorities from the United Supreme States Court amendment, an interpreting fourth under independent law, evaluation of Illinois statutory case officers law have no such right, as the following discussion clearly establishes.

IV The seizure of a traveler’s is luggage permitted under the fourth amendment on only facts and to the identical that officer extent the could the seize traveler himself. that might One assume the United States Court Supreme permits the seizure of on lesser luggage some than, standard say, “articulable the suspicion,” which is minimum Ohio permitted standard for the of Terry v. seizure under person (1968), 1, 392 889, 1868, U.S. 20 L. Ed. 2d 88 S. Ct. one because might further the assume that United States Court accords Supreme greater rights the to privacy to than the “effects” “person” pro- express tected the of But terms the fourth amendment. such an assumption would be erroneous Supreme because the United States United States v. Place Court specifically declared 462 U.S. (1983), 696, 110, 2637, 77 L. Ed. 2d S. 103 Ct. that no distinction between of person seizure and the can baggage seizure of be made: outset,

“At the reject we must the Government’s suggestion 452 of luggage for seizure probable the at which cause point is more distant necessary

from the person’s presence becomes himself. The Terry stop person in the of a of the than case is that seizures of argument of the Government’s premise of the per- less than seizures are intrusive property generally circumstances, is premise faulty in some son. While true of de- precise on in this case. The type the facts we address personal luggage is tention we confront here seizure of ar- of the for the suspect purpose the immediate possession Particular dog. to a narcotics detection ranging exposure immedi- the case of detention of within the traveler’s luggage the sus- police ate the conduct intrudes both possession, well as his liberty interest in his pect’s luggage possessory his The whose itinerary. person interest proceeding to his tra- technically is still free continue luggage is detained of the release carry personal activity pending vels or out other Moreover, subjected is to coercive atmos- he luggage. public indignity to phere a custodial confinement Nevertheless, can ef- such a seizure being detained. personally to subjected possi- fectively person restrain since in order remain with his plans travel disruption ble Therefore, when arrange po- for its return. luggage or we think the lim- custody, from the suspect’s lice seize luggage person detentions of the applicable investigative itations deten- scope investigative of an permissible should define the than cause.” 462 probable on less person’s luggage tion 121-22,103 708-09, L. 2d S. Ct. at 2645. U.S. at 77 Ed. Place, v. States Officer United Thus, authority under inspection luggage seize the defendant’s right Kolman’s the defendant’s to her seize right same identical exactly the under such authori- We all know that purpose. same person for 889, 1, L. S. Ed. 2d 88 Ct. Terry v. Ohio (1968), 392 U.S. ties as 544, Ed. 64 L. 2d States v. Mendenhall 1868, (1980), U.S. United 491, 75 L. Royer (1983), v. Florida 497, 1870, U.S. 100 S. Ct. States Sokolow and United S. 2d Ct. Ed. 1581, tem- may 104 L. 2d 109 S. Ct. police 490 U.S. Ed. suspi- if reasonable articulable porarily person they possess seize committed, or is about has person committing, cion that the seized States v. United under all also know that to commit a crime. We if the Place, pos- seized constitutionally luggage may con- baggage suspicion articulable sess same reasonable seizure the same as between test for is tains contraband. The proper

453 person Thus, remains, vis-a-vis his did luggage. question the Officer Kolman possess suspicion reasonable articulable that Bruce Jones’ luggage contained in- contraband at the moment she announced her tention to seize it?

The cites deems majority following the factors which it individu- ally significant and collectively sufficient the seizure of the justify luggage: defendant’s (1) “eye defendant made contact” repeatedly with the in station; officers the train the travel itiner- (2) defendant’s ary indicated he had flown to Ft. Midway Lauderdale Airport 26, on Chicago March and that he on March left Ft. Lauderdale 29 a train Chicago; (3) the nervous appeared defendant when None of questioned. these “reasons” could the seizure possibly justify defendant, or, Place, under v. United States articula- supply ble suspicion necessary to conclude luggage defendant’s con- tained contraband.

1. How, record, contact. Eye on this eye contact Officer Kolman could be suspicious imagination considered behavior defies light of the judge’s trial explicit that Officer Kolman is “a “finding” nice If looking lady.” it has become for suspicious a man to look at a “nice lady” looking where the is (particularly lady obviously looking at then him), back judges find At many may themselves detained. least one authority (United (9th 1978), States v. Cir. Pulido-Santoyo 580 352, 354) F.2d has that eye said contact with the is not sus- picious may but well be natural” under circumstances. “quite these This for suspicion “reason” is patently flawed. 2. itinerary. The fact the defendant traveled Defendant’s Ft.

roundtrip between Lauderdale and Chicago space of a few days does not create an articulable suspicion sufficient seize either or his Terry defendant v. luggage. According (1968), Ohio 1, 27, 889, 1883, L. 909, 1868, U.S. Ed. 2d 88 S. Ct. an articula- suspicion ble more than something unparticular- an “inchoate and ” ized In suspicion or ‘hunch.’ United States Sokolow 1, U.S. 104 L. Ed. 2d 109 S. specifically Ct. Court held that a 48-hour Miami and trip during between Honolulu month proof “is not itself conduct and July illegal Ed. quite (490 consistent with innocent travel.” U.S. at 104 L. 1586.) 2d at 109 S. at But if the Ct. additional combination factors which the Court held justified stop paying Sokolow— bills, large traveling cash the tickets from a roll of under $20 a false in the certainly opposite factors case bar—Jones’ name— conclu- opposite use a credit card and his correct name—create the Thus, nothing itinerary sion. there was about this defendant’s contained contra- suspicion luggage created an articulable band. ap Kolman testified that the defendant

3. Nervousness. Officer has held that Supreme specifically nervous. The Illinois Court peared will not the by stopped by police “nervous” behavior exhibited one 37 Ill. 2d (1967), search. v. Reed justify subsequent police (People a that the officers 91, 69.) Nothing suggests 227 N.E.2d in the record otherwise See Peo dangerous. believed the defendant to be armed or 837; 153, Ill. 535 v. Jones ple (1989), People v. Galvin 2d N.E.2d 576, 395. (1989), 181 Ill. 3d 537 N.E.2d App. the taken sin-

Thus, by none of the factors relied upon majority, the seizure or his lug- or of defendant gularly jointly, justified follows, therefore, told the It that when Officer Kolman gage. (and search) luggage, to seize his going defendant that she was the defendant to Officer Kolman coercively inducing yield, thereby That is to the defendant’s submission to acting illegally. say, was serve, within the was and could bag illegally procured search of the Constitution, basis for Officer Kolman’s search as valid luggage. defendant’s warrant, probable

When a search is conducted without cause, turns upon pur of the search defendant’s validity that the consent, here, the State has the burden of proving as ported (Schneckloth v. voluntarily given. freely consent was necessary 218, 854, 866-67, 233-34, 36 L. Ed. 2d (1973), Bustamonte 412 U.S. 2041, 2051.) employed determining The test to be 93 S. Ct. of the circumstances. the consent is the totality voluntariness of that he has a to refuse consent to Knowledge by right arrestee not, it voluntariness, but is determining by search is one factor consent based self, demonstrating upon determinative. The of burden States v. Men (United is on the State. circumstances totality 497, 511, 544, 557, L. 100 S. Ct. 446 U.S. Ed. 2d (1980), denhall that consent ex Furthermore, it is established 1879.) well is not free authority of lawful tracted in to an assertion submission v. North (Bumper is duressed and coerced. but rather voluntary, 1788.) L. 2d 88 S. Ct. Ed. (1968), Carolina 391 U.S. It course, beyond dispute here. that, is what we have And of his until after bag refused to search yield this defendant him that his was to be retained bag going Kolman informed Officer “consent,” then, given That them, or not he consented. by whether then, to Officer Kolman’s demand given was submission cannot considered to be free and, Bumper, under bag, to seize his and voluntary.

Moreover: finding that the defendant’s consent to search volun was

“[A] tarily given is but one in the of the step determination propri search, ety because even if the consent were voluntary it an may exploitation illegal still have been obtained by *** arrest. is of inculpatory What concern whether some arrestee, action an albeit the ex by voluntary, by obtained officer, of an ploitation illegal arrest as a consequence safeguards violates the constitutional fourth amendment so as to to the exclu require application rule. The sionary action on the inculpatory part the arrestee can take form of a consent to just easily search as confession, can a and for of the fourth purposes amendment there is no substantive difference between the two.” People Odom 1022, 1027-28, 83 Ill. App. 3d 404 N.E.2d 1002. Odom, In the court held that the defendant had ar illegally been rested and therefore his “consent” to search his truck his jacket and which was in the product truck was the (See the arrest. illegal also People v. Koniecki (1985), 394, Ill. App. 973.) 135 3d 481 N.E.2d The holding in Odom is in general accord with the that the principle exclusionary “extends as towell the indirect as the direct prod rule ucts” of unconstitutional conduct. Segura v. United States (1984), 796, 599, 468 U.S. 3380, 82 L. Ed. 2d 104 S. Ct. Wong from quoting Sun v. United States 471, 371 9 (1963), 441, U.S. L. Ed. 2d Ct. S. 407; v. also United States Miller see (11th 546, Cir. 1987), F.2d 549-50; United States v. Berryman (1st 1983), 651, Cir. 717 F.2d 656- 57; United States v. Delgadillo-Velasquez (9th Cir. 1988), 856 F.2d 1292, 1299-1300.

The defendant’s coerced submission “consent” proffered was im- after and mediately only as direct result of Officer Kolman’s ille- gality, her namely, expressed threat and intent to seize the defend- ant’s bag. on conclude this record that Officer Kolman had no evidentiary or

support basis for any articulable suspicion the defendant was committing, had or committed was about to commit a crime or that the defendant’s luggage contained contraband when she threatened it; and her intent expressed to seize that the defendant’s submission “consent” to purported search his was luggage involuntary and was in given only deference to a claim of lawful authority; the defendant’s “consent” was the product, “fruit” and direct result of Officer illegal Kolman’s and unconstitutional threat to seize the and the and luggage, judge’s overruling defendant’s therefore trial the defendant’s motion to evidence was denying pretrial suppress 77, 2d (1985), erroneous. 106 Ill. manifestly People Stout N.E.2d 498. People

I am out in point just ago constrained a few weeks (1989), very v. Nelson 188 Ill. 3d this court affirmed App. suppress trial court’s motion to evi allowance of defendant’s dence, on more distinct factors police luggage, which seized on reasonable, suspicion than the factors establish articulable Robert Chicago Glynn officers Christine Kolman and in case and Amtrak officer Dennis Kroll relied at .bar. security Nelson, bar, in in at Parenthetically, I also note that and the case officers, station, train, and train’s origin the train the train’s same, too, time of all the and officers’ “boiler plate” arrival are factors their in the two cases are suspicions to establish articulable sage identical. The condemnation Justice practically likewise 45 Ill. 2d Walter A. Schaefer in v. Mitchell People gone on the has unheeded plate wholesale use “boiler affidavits” the case my distinguished learned trial brethern judge at bar. 31, 1987,” interroga- “9:10 stop

These officers’ a.m. March Jones, had ar- Chicago tion at Station in Bruce who just Union D.C., weeks after Washington, rived a train from was five 1987,” stop these similar February same officers’ “9:20 a.m. Nelson, who Chicago of Michael Union Station interrogation ID.C. Washington, extensively also on a train from had arrived just to the in- Nelson; analogous Nelson factors are so quote closely script. stant case be a appear Beach, Delray on Amtrak from

“The defendant traveling was Florida, Portland, required change He Oregon. At hear- D.C., Washington, again Chicago. trains the presented the defendant suppress, on the motion ing Glynn. Glynn stated officer Robert testimony Chicago police 24, 1987, he his partner and that at a.m. February 9:20 an Amtrak exit Christine Kolman observed the defendant had informed Amtrak been Glynn train at Station. Union for a ticket paid one-way had cash that defendant security he Beach, Florida, that had roomette occupied from Delray ‘a he his reservations on train, and that cancelled on the look- that the was Glynn stated couple occasions.’ defendant surveillance’ ‘scanning the crowd though around as ing for his putting the station without appeared leaving is a storage. He further testified that Florida ‘source bags drugs. state’ for time,

At that Glynn approached defendant, and Kolman identified and the themselves and asked identification defendant’s train his produced Oregon ticket. The defendant driver’s license and train ticket which was his purchased own name. Glynn informed the defendant that he was not un- der arrest if and asked he would answer some The questions. defendant indicated that he would. When asked where he train, boarded the Washington, defendant answered D.C. Glynn why then asked the train ticket that he indicated had Beach, boarded the train in Florida. The Delray be- defendant nervous, came began stuttering changed weight his one to the other. In response further questions, foot defendant stated he possession was once arrested for he marijuana not carrying illegal was narcotics. He refused to give permission the officers his luggage, search and Glynn bags decided to for exposure detain to a narcot- ics dog. detector Glynn told the defendant that he free was leave and gave him a phone and a number he receipt could call for the return of luggage.

The defendant left and bags inspected were by a narcot- ics detector dog immediately outside of Union Station. The dog indicated of narcotics one presence bags. A search warrant prepared bag and the was found to con- tain two kilos cocaine. Kroll,

The State presented testimony of Dennis an Am- trak security who passenger reviews reservations by officer Kroll computer. stated that the defendant paid in cash $585 for a one-way originating Beach, ticket in Delray Florida. He ordered a sleeping roomette, called a compartment changed his reservation or six five times and did not leave call-back number. Kroll relayed this information to an agent the Drug *** Enforcement Administration.

* * * In bar, the case at the State contends that the following fac- tors reasonable, established a articulable suspicion defendant’s luggage contained narcotics. The pur- defendant a one-way Florida, chased cash state’; ticket from a ‘source he roomette; he occupied changed his reservations several times number; and did not leave a call-back he ‘scanned’ the area when exited the train ques- nervous when appeared not he said tioned the and he was truthful when by police; he that the train in D.C. Washington, boarded *** cash, Although purchased pre- the ticket was to the defendant sumably anonymity, would be done ensure the in his own name. The officers were aware purchased ticket li- Oregon of this driver’s produced when the defendant an bearing specifi- cense name and The trial court photograph. his he truthfully when cally found that the defendant answered D.C., the Washington, he the in based on said boarded train the the fact that changed fact that trains there. Given in to trains Chicago change defendant was not from and had that Station, to the fact significance imparted Union no can be The after the did he ‘looked around’ train. witnesses exiting explain changes of the reservation significance a dur- occupied sleeping compartment fact that the defendant fac- In our view these ing Oregon. from Florida journey tors, together, insufficient estab- even when considered are defendant’s reasonable, lish a articulable suspicion luggage narcotics. contained court affirmed.” judgment the trial

Accordingly, Nelson, 619-22. 188 Ill. 3d at (Emphasis added.) App. articu- the factors establish the officer’s reasonable

Regarding holding at bar cannot be lable in case suspicion, majority’s quite ap- It is holding reconciled with this court’s Nelson. opposite a reasonable meager factors Nelson establish parent lesser, scanty are far than persuasive articulable more suspicion subject lug- Jones’ relied on Officer Kolman to seize factors dog detector test in the instant case. gage to 1987, again at Again, February The continues. script Scabilion, a.m., Dennis officers, Mel Glynn, these same Robert again station, Kroll, again identically the same Amtrak train again at defendant, Sherman and his companion John stopped questioned D.C., train, en again alighted Washington, who from the same had Lauderdale, Minnesota, and Florida, to Lapeer, route from Fort 2, 1989, affirmed the trial court, on again this same November from the drugs seized order evidence suppressing court’s Ill. 3d App. People Sherman luggage, defendant’s contention that the Sherman, this the State’s 814. In court rejected reasonable, suspicion articulable following factors established and his narcotics: the defendant luggage the defendant’s contained under the name Ro for cash roomette companion occupied paid num- man named Rosenstock and call-back senstock; neither was no one Rosenstock ber that of a hotel which named they left was Lauderdale, Fort a “source” city traveled from registered; walked the Amtrak station. Like- drugs, through separately wise, bar, no established a in the case at there were factors which con- reasonable, luggage that defendant Jones’ suspicion articulable narcotics, tained threat his luggage Officer Kolman's seize was clearly constitutionally invalid.

Again, passengers do not many we know how innocent these interrogated. However, same and officers stopped other have Chicago police officer Richard Crowley recently during related to past assigned five has been surveil and interview years, drug stations, courier train profile passengers Chicago Midway airports, O’Hare 20 flights he watched “probably” to talked a dozen or fifteen on “probably people” typical 10 a.m. to 6 p.m. people week, about 60 a week for a day, and that five-day “we up don’t come every day, couple narcotics times a maybe week,” and that “some weeks wrong percent one hundred was] [he of the time.”

Chicago officer Richard Crowley, reveal- responding ing examination of attorney Martin, Marc W. testified so on his deposition 19, 1989, on October in the cause United States v. $17,750, C—8706, No. a forfeiture in the proceeding United 87— States District Court for Illinois, the Northern District of Eastern Division, Illinois, Rovner, Chicago, the Honorable llana trial judge. Crowley further disclosed the following said deposition: Now,

“Q. is there something called a drug profile? courier A. Yes.

Q. isWhat that?

A. has to It do with behavior.

Q. you Can be a little specific? more Well, A. good counter-surveillance would be a word. Q. is a drug profile? What courier Well, it A. deals with couriers that are clandestinely carry- ing, trafficking drugs.

[*] ^[**] Q. you Would list those characteristics? Well, a

A. clear explanation would be someone pretending phone fact, make a call when just looking were all area, around the with the receiver their phone up head.

[*] ^[**] Q. is What counter-surveillance besides to make pretending call? phone A. is when a would look subject Counter-surveillance him. anyone surveilling around see if

* * * Q. parts What are of it? other hiding corner, in a so to

A. off a corner and Standing one else in the area. speak, watching every

* * * Q. profile A is a list of drug things you’re supposed courier person out to see if this fits isn’t profile, look for true?

A. Yes.

Q. are to look out for? things you What are Well, coming Chicago A. look couriers into we substances, cit- out such going source cities of controlled ies.

Q. look for? you characteristics do [What] behavior, hiding a nervous A. out Anything ordinary: leaves, a plane possibly. in a washroom until Q. drug So of the other items this you don’t know *** counter-surveillance, ner- courier involves profile basically vous behavior?

A. Yes.

Q. Does dress have do with anything How about dress. it? No.

A.

* * ^[*] Q. carrying? Type luggage anyone Well, that lends them to this bags, A. we look carry-on profile.

* * * Well, casually would be a person A. courier stereotype dressed, about, with a plane looking all leaving hurry, and exiting carry-on bag negating baggage pickup small cab. airport for a used, Now, would you just type this Q. example drug fit of a courier? person the profile Yes.” A. most, if not perhaps and indeed many,

Parenthetically, note drug of a cou- profile travelers fit this all current airline practically rier. additionally deposed: Crowley

Officer week, 50, 60 people? to 60 “Q. talking people So are you fair That’s a estimation?

A. Yes.

Q. say You on some weeks find no narcotics? you A. That true.

Q. stop, And these it’s because people you they meet the profile?

A. The 50 profile or 60 that we interview meet the people somewhat.

Q. meet the profile, your estimation? [Because] They A. would meet profile. some criteria Often- times, will you start to conduct an interview get and not very it, far with when we ascertain that they’re anyone we’re in, interested we’re not any longer interested in interviewing further; this person any like their papers are in order.” if (Emphasis added.) I additionally parenthetically note that citizens in traveling totali- tarian nations permitted are likewise to resume their travel when the Cheks, NKVD, MVD, Gestapo, OGPU and the KGB similarly deter- mine that “their papers are in order.”

Officer further Crowley related on his deposition:

“Q. And when you these —or stop as question you use the word, these 50 or people week, per it’s because something about their behavior made think you they might be involved in narcotics, statement, it that a fair officer?

A. Yes. Q. And you’re some weeks wrong one percent hundred the time?

A. Yes.” (Emphasis added.) This foregoing testimony of Officer Crowley, has been argued, is a convincing revelation of the utter fallacy the so-called drug courier It profile. also has been vigorously argued, and based upon Officer Crowley’s foregoing with some testimony, degree of persua- sion, that those passengers agree who to a search of their luggage are perceived by the officers concealing nothing, and their inter- terminated, view is whereas who passengers object or refuse to agree to the officers’ prying through their most private and personal belongings hide, do so because have something prompting officers to seize search and their If luggage. nothing is found the passenger permitted proceed on his if journey. Conversely, drugs are discovered the passenger is arrested and charged.

It is noteworthy deposed Officer Crowley same Chicago police officer Crowley testimony whose United States Dis- v. Bonds in United States trict Court James Moran Judge rejected and found the discussed herein. guilty, previously defendant 1, arising Moya (N.D. United States v.

In Ill. F. 1981), Supp. Kenneth and officer Thomas Kin Agent Chicago police out Labek and arrest of defendant drug profile interrogation sella’s courier 20, 1980, the at the O’Hare on March court Moya Chicago Airport pointed out:

“Indeed, routinely approaches himself testified that he Labek courier [drug or three on the basis of similar people day two 70 or stops only but that these have led profile] suspicions, Thus, as his three at O’Hare. defendant during years 80 arrests out, week and a 50-week presuming 5-day has work pointed led to on the sort of evidence year, stops work based (561 of the time.” result in arrest 3-5% Moya’s questioning 4.) F. Supp.

However, officer Thomas Kinsella Chicago police when this same v. Black 1981), Ill. 510 F. United States (N.D. Supp. testified arrest of the interrogation courier and arising drug profile out of 14, 1980, only on Chicago Airport May Black at the O’Hare defendant Officer Kinsel Moya, arrest of seven after Labek-Kinsella weeks in unexplainably drastically and suddenly la’s arrest success ratio Kinsella testified in Black: creased. to O’Hare for one on a full-time basis assigned

“He has been March, assigned he had been O’Hare year prior he had participated for years, on a basis two part-time inves- seventy-five of narcotics and fifty seizures approximately F. tigatory stops suspected drug (510 at O’Hare.” couriers 990.) Supp. at drug Kinsella’s Burzinski and Rosemary

In officers Chicago police on May arrest of Black profile interrogation courier she of the defendant’s arrest the time court out pointed [Of- “[a]t to O’Hare assigned Airport had been Rosemary ficer Burzinski] in approxi- had months,” participated that “Officer Burzinski two to the defendant’s prior at O’Hare fifty stops seizures and ten mately arrest.” (and Burzinski’s Rosemary the same Officer

Yet, out of arising and ar interrogation Fulkerson’s) drug profile courier Agent Robert 12, 1982, air at O’Hare April Jose Cantero of the defendant rest States Cantero (N.D. Ill. out in United pointed the court port, 397: 1982), Supp. 551 F. for two and one-half at O’Hare has worked Burzinski

“Officer encounters, and has been about participated has years,

463 *** in involved about 50-75 seizures. In the last two and one- years assigned half the airport, [Agent to Robert Fulkerson] has in participated [drug profile] four five courier encounters week, in per (551 and approximately Supp. arrests.” F. at 398.)

The instant and the reveal foregoing explanation, justifi- cases no cation drug or reason for the gross disparity these officers’ courier profile interrogation and explanation failures successes. The is left solely imaginative speculation.

Justice Schaefer aptly out in Mitchell: pointed

“One of the in dealing difficulties with this area of the law is that most of the cases which the courts are concerned in- illegal narcotics, volve of possession gambling equipment and the result of the search guilt makes unmistakable. The courts have no way knowing many how unproductive searches are made upon basis of false affidavits because those cases do *** not come before the courts.

In an atmosphere there widespread is concern problems about narcotics is difficult for court enforce guarantees constitutional at the one instance of who unques tionably guilty. But the provisions constitutional are directed potential at aby tyrannical abuses government pro and those not, visions my opinion, should be so diluted in order to se cure convictions in narcotics and cases gambling they that can longer no protection against operations Hitler afford government. type may It protection that the constitutional in terms are phrased considered too sweeping meet the so, needs society today. should be But they amended. it is If responsibility interpret a court to apply consti tutional provisions added.) Mitchell, as exist.” (Emphasis Ill. 2d 155-56. attempted dissent, As make clear in I of this it is part from small slight intrusions and deviations that the courts must be alert to offer protection. Recently, speaking of these of searches exactly types Court Appeals seizures Ninth Circuit United States v. $124,570 Currency (9th 1989), United States 873 F.2d Cir. cogently proclaimed: by govern- freedom from intrusion “Liberty unwarranted —the easily through government

ment—is as lost insistent by nibbles officials who seek to their too as those jobs do well whose deadly it is to be as purpose oppress; piranha can added.) shark." (Emphasis IT HAPPEN HERE?”

“CAN cases, cases, across drug The foregoing particularly cited IT IS HAPPEN- length suggest of our nation breadth No- following Wednesday, ING HERE. The “cover from the story” TODAY, vember edition of nation’s USA newspaper Mauro, 2A, sugges- pages by Tony emphatically buttresses tion.

“THE WARON DRUGS LINE? ARE OUR RIGHTS ON THE SOME ‘OUT CONTROL’ WORRYPOLICE OF intensifies, there is concern drugs growing As the war on claiming our constitu- that the battle is an unintended victim: rights. tional across rulings, police recent Court by Supreme

Emboldened tactics, aggressive neighbor- including are adopting USA searches, reverse stings property hood no-knock sweeps, seizures. crises, we’ve never gone lived a lot of crime but through

‘I’ve this,’ University Michigan profes- law says out of control like Kamisar, expert sor an on searches. police Yale

* * ^[*] them, Socorro, N.M., walked judge stopped police Until a checkpoint— car at an interstate dogs past every drug-sniffing not. drugs whether suspected Detroit, in a neighbor- raided food market police drug In after sniffed hood, profits dogs held the and seized owner register. three his cash cocaine on bills $1 from being are heard Increasingly, about tactics police doubts conservative, are some whom quarters judges, unexpected — Meanwhile, and lib- groups civil liberties average citizens. quiet, been Congress usually outspoken perhaps erals in — —have anti-drug mood. by cowed Denver heading,’ says T the United States is wonder where Marsch, a Nixon concern ‘My appointee. federal Richard judge the consti- drugs might real be victim the war of American rights people.’ tutional

* * ^[*] Friedman, in an letter open Milton Conservative economist the pros- he ‘revolted’ drug czar], says Bennett [Federal liberty empowered invade ‘an of enforcers pect army of citizens.’

* * * At the core of the to the Fourth Amendment dispute: Constitution, guarantees right ‘the be people houses, effects, persons, papers against secure their un- reasonable searches and seizures.’

An Court increasingly Supreme interpreted conservative has that to allow police poke through garbage, by helicop- search ter and citizens their stop appearance. based on

Says Kamisar: ‘There’s much left to the Fourth Amend- ment, our homes.’ except Hudson, N.H.,

But in some are not protection sure remains police home, searches either. inside summer, Last Hudson police, armed with search warrant in part old, based on an informant’s tip that was 20 months Lavoie, raided the apartment modest of Bruce a machinist awith wife and three children.

At 5 a.m. on Aug. announcing without themselves and without armed, evidence that might Lavoie smashed the door with battering bed, ram. As rose Lavoie from his ap- intruders, parently resisting fatally shot as his son A watched. single marijuana cigarette was found.

* * * Hudson town moderator Michael Keenan himself describes a ‘hard-core ‘in conservative.’ But the name of this so-called ’ drug war, can’t you go in and do bang-bang “Dirty Harry.” Law and order is ‘not necessarily support synonymous police.’

* * * Other from the reports drug war battlefield: Detroit, $4,384 In Joseph still awaits return Haji of au- thorities from the register seized cash in his Sunshine Market last during December no up search turned drugs.

New federal and state police laws allow confiscate as- defendants, sets drug even before been they’ve found guilty case, crime. In Haji’s he wasn’t even charged. Though the search no drugs, found ‘sniffed’ police dogs co- caine traces on three bills—which came as no surprise $1 Haji, whose store is in a drug-plagued neighborhood. ‘Seventy- percent my five business is with dealers I’m dope and users. supposed inspect money?’

* * * Police are stepping up searches in ways questions. raise Courts have allowed to use police courier ‘drug profiles’—fac- demeanor, out indi- pick tors such dress and destination—to for searches. viduals as I- Miami on interstates such lawyer says

But Hirsch are innocent using any pretext stop people. almost police car, ‘If stop look in a rented Hispanic you’re they’ll you you and ask if wouldn’t mind if search the car.’ you they in have struck down.

Similar searches train stations been Judges Federal Louis and Gerhard Gesell Wash- Oberdorfer searches, ington finding only tossed out two that the recently at Union Station was be- stopped reason defendants were traveling were black and from New York. they cause [United 639; (D.C. 1989), Supp. v. Winston Cir. 711 F. United States (D.C. 1987), 699 F. Supp. States Mitchell Cir. 1.] Boston, violence, has run upsurge drug wracked an Dorchester, large-scale largely Roxbury searches black they and sometimes residents frisking strip-searching stopping, possible call ‘known members’ and associates. gang are just they are because stopping people hundreds ‘They Owen, black,’ pro- who has young says state Sen. William genera- ‘This alienate a whole tested could policy. practice of all rights people.’ tion of black men and violates Judge Cortland Superior In Massachusetts Court September, ‘A under- policy: denounced the search tacit police Mathers that constitu- standing Department exists in Boston Police countenanced impermissible only searches will tionally the Roxbury but area.’ applauded license cars for guidelines, police stopping court Under ‘a if investigate drugs they’ve developed can for checks of a crime. suspicion’ reasonable and articulable Socorro, N.M., didn’t wait But the that — they’d stopped. all the cars drug-sniffing dogs past walked declared Conway, Reagan appointee, John Judge Federal raise this nature practices the tactic unconstitutional: ‘Police ” added.) state.’ (Emphasis the totalitarian grim spector of 1A, 2A. 15,1989, Today, USA November reasons, dissent. strenuously For foregoing

Case Details

Case Name: People v. Jones

Court Name: Appellate Court of Illinois

Date Published: Jun 30, 1989

Citation: 545 N.E.2d 1332

Docket Number: 1-88-0214

Court Abbreviation: Ill. App. Ct.