People v. McBee

593 N.E.2d 574, 228 Ill. App. 3d 769, 170 Ill. Dec. 685, 1992 Ill. App. LEXIS 252
CourtAppellate Court of Illinois
DecidedFebruary 21, 1992
Docket1-90-1231
StatusPublished
Cited by17 cases

This text of 593 N.E.2d 574 (People v. McBee) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McBee, 593 N.E.2d 574, 228 Ill. App. 3d 769, 170 Ill. Dec. 685, 1992 Ill. App. LEXIS 252 (Ill. Ct. App. 1992).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Gerald McBee, was convicted of possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. SGVe, par. 1401(a)(2).) Prior to his trial in the circuit court of Cook County, defendant filed a motion to produce the State’s confidential informant and a motion to suppress evidence and quash arrest. The trial court denied the motion to produce without prejudice. At the subsequent hearing on the motion to suppress evidence and quash arrest, defendant renewed his motion to produce the informant. After hearing evidence, the trial court denied both motions. The parties proceeded with a stipulated bench trial at which defendant was found guilty and sentenced to six years’ imprisonment. On appeal, defendant contends that the trial court improperly denied his motions to produce the informant and to suppress the evidence.

Defendant did not testify at the hearing or at the stipulated trial. His affidavit and supplemental affidavit, attached to his motion to produce the informant, are summarized as follows: At about 6 p.m. on May 2, 1988, he and codefendant Gaylord Feketia were at an airport bar when an unknown man approached them and offered defendant some cocaine, which the man placed on the bar. Defendant refused the man’s offer. The man then asked if defendant had any cocaine to sell; defendant responded that he did not. The informant then “did a line” of cocaine at the bar, pushed a packet into defendant’s hand, saying, “This is really good,” got up and left. Defendant went to the gate area where he waited to board a Detroit-bound plane. After hearing arguments, the trial court denied defendant’s motion to produce the informant.

At the hearing on the motion to suppress evidence and quash arrest, Officer Joseph Rugoli testified that he had been a police officer for 18 years and had made over 100 narcotics arrests. At the time of defendant’s arrest, Rugoli worked in the police department’s drug enforcement unit at O’Hare Airport.

Rugoli described defendant’s arrest and the events preceding it as follows: on May 2, 1988, at about 5:50 p.m., Rugoli, dressed in plain clothes, spoke to a confidential informant whom Rugoli had known for three years and used in several narcotics investigations. The informant told Rugoli that he had met two men in the airport lounge and that he was returning to the lounge to buy some drugs from them. When Rugoli entered the bar, he saw defendant, codefendant and the informant standing at a table. Rugoli leaned against the bar near the front door, about five to seven feet away from the men. The men faced Rugoli, giving him an unobstructed view. Rugoli heard defendant offer to sell the informant one-half gram of cocaine. Rugoli heard the informant ask how much defendant would be able to sell, to which defendant responded, “[H]ow much you want[?] I got as much as you need.” Rugoli saw defendant pull a clear, ball-shaped plastic bag from his waistband and hand it to codefendant, who showed it to the informant. Rugoli believed that the bag contained cocaine. The informant stated that he did not have enough money to buy the cocaine. Co-defendant returned the plastic bag to defendant, who put it back in his waistband. Defendant and codefendant left the lounge and walked toward the gate area.

Rugoli further testified that he and Officers McGarry and Mulvihill followed defendant and codefendant to the gate, identified themselves as police officers and asked them to put their bags down. Defendant and codefendant each put down one bag. Rugoli then pulled the plastic bag out of defendant’s pants and told him that he was under arrest. While McGarry was patting defendant down, defendant threw up his arms and ran away down the concourse. McGarry and Mulvihill chased defendant and apprehended him. The officers handcuffed him and returned to the place where Rugoli waited with codefendant. The officers searched the two carry-on bags and found six more clear plastic bags of white powder. (The parties stipulated at trial that the seven bags, one from defendant’s waistband and six from the luggage, contained 54.28 grams of cocaine.) In January 1990, after hearing the evidence, the court denied defendant’s renewed motion to produce the informant and his motion to suppress evidence and quash arrest.

Initially, we reject defendant’s claim on appeal that the trial court improperly denied his motion to produce the informant. Supreme Court Rule 412(j)(ii) provides:

“Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (134 Ill. 2d R. 412(j)(ii).)

It is well settled that strong public policy reasons favoring nondisclosure of an informant must be balanced against a defendant’s need for disclosure in order to prepare his defense (People v. Crose (1990), 194 Ill. App. 3d 97, 550 N.E.2d 1102), or where disclosure is essential for a fair determination of a cause. (Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.) However, if the issue is one of probable cause, and guilt or innocence is not at stake, the nondisclosure of an informer’s identity is not error. (McCray v. Illinois (1967), 386 U.S. 300, 311, 18 L. Ed. 2d 62, 70, 87 S. Ct. 1056, 1062.) Whatever the circumstances, defendant must show a need for disclosure. People v. Stoica (1987), 163 Ill. App. 3d 660, 516 N.E.2d 909.

Upon review of the record, we conclude that the trial court properly denied defendant’s motion to produce the informant because the informant’s identity was an issue of probable cause, not of defendant’s guilt or innocence. Indeed, defendant’s affidavit alleged that he needed the informant’s identity to “aid the defense on the issue of probable cause” and referred to the encounter between him and the informant as “staged to fabricate probable cause.” At argument on the motion, defense counsel argued that disclosure was required because the informant created probable cause. Under McCray, because the issue raised was one of probable cause, we cannot say that the trial court improperly refused to require disclosure.

The trial court, in denying defendant’s motion, expressly relied upon People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685, and People v. Wolfe (1966), 73 Ill. App. 2d 274, 219 N.E.2d 634. In Lewis, our supreme court, in holding that defendants were entitled to the names and addresses of informers, specifically distinguished a motion made during pretrial proceedings from one made at a trial on the merits. In Wolfe, this court held that an “informer who participates in a crime” must be disclosed “at a pretrial hearing on a motion to suppress, if other evidence did not establish probable cause, and failure to allow such disclosure is error.” (Emphasis added.) Wolfe, 73 Ill. App. 2d at 280, 219 N.E.2d at 637.

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Cite This Page — Counsel Stack

Bluebook (online)
593 N.E.2d 574, 228 Ill. App. 3d 769, 170 Ill. Dec. 685, 1992 Ill. App. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcbee-illappct-1992.