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No. 3--01--0255

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

Following a jury trial, defendant Sidney McLaurin wasconvicted of unlawful possession of a controlled substance(cocaine) with intent to deliver (720 ILCS 570/401(a)(1)(A) (West1998)). Defendant appeals, arguing that (1) the court erred indenying his motion to suppress evidence; and (2) the State'sevidence of possession was insufficient. We affirm.

At the hearing on the suppression motion, Joliet policeofficer Marc Reid testified that on the evening of July 27, 1999,while Reid and his partner, Kevin O'Boyle, were on street patrol,Reid observed defendant driving a gray van along Iowa Street. Having arrested defendant on prior occasions, the officersbelieved defendant's driver's license was suspended. Theofficers verified defendant's license suspension and circled theblock to position themselves for a traffic stop. When theyreturned to Iowa Street, the van was gone. The officers thenproceeded to a house on Boulder Street, where they had arresteddefendant on a prior occasion. O'Boyle testified that the housewas rented to Elwana Williams, who lived there with her sisterand children. Williams told O'Boyle that no males were permittedon the property.

The officers arrived at the Boulder Street address withinfive minutes of having seen defendant on Iowa Street. Defendant's van was parked in front of the house with the motorrunning, the driver's door open and loud music playing. Defendant was not in the van. The officers saw Curtis Smithstanding nearby. Smith was yelling, "Sidney, police are coming!"

O'Boyle testified that he saw defendant crouched by the backcorner of the house. As O'Boyle ran toward him, defendant jumpedup and met O'Boyle on the driveway. Defendant said, "What's up,O'Boyle?" O'Boyle asked defendant what he was doing, anddefendant said he was "taking a piss." O'Boyle sent defendant tothe front of the house with Reid to wait with back-up officerswho had gathered at the scene. Then, he and Reid went back toinvestigate the area where defendant had been crouched.

Based on the foregoing evidence, defense counsel argued thatthe police lacked probable cause to arrest defendant, and thatthe drugs subsequently discovered during the search of the rearof the house were the tainted fruit of an unlawful arrest. Thetrial court denied the motion, ruling that defendant was lawfullydetained based on the officers' reasonable suspicion thatdefendant had been driving on a suspended license.

At trial, O'Boyle testified that during the ensuing searchat the back of the house on Boulder Street, he heard defendantcommenting that the police had no business on the property; theyneeded a search warrant. Nevertheless, O'Boyle and Reid searchedthe area where defendant had been crouched for evidence of urineand found none. Both the side of the house and the ground weredry. Reid said he saw clear plastic protruding from under thesiding in the corner of the house where defendant had beencrouched. The siding was loose, and he removed a sandwich bagcontaining 17 small packages of a white rock-like substanceresembling crack cocaine. On the other side of a bush in thesame area, Reid found another sandwich bag with 16 more smallpackages of suspected cocaine. After placing the evidence in hissquad car, Reid told defendant he was under arrest for possessionof cocaine. The material in the sandwich bags subsequentlytested positive for cocaine and weighed 79.4 grams.

Police sergeant John Perona testified that he responded to acall to conduct a canine search of the Boulder Street property onthe evening of July 27, 1999. Perona said his canine partner wastrained to find controlled substances, including cocaine. Thecocaine under the house siding had been removed when Peronaarrived, and the dog did not alert. Perona explained that ifdrugs are left in a location for a period of time, the odor willpermeate the surrounding surface and the dog will alert evenafter the drugs have been removed. However, if the drugs wereleft in an area for only a few minutes, the odor may not havetransferred to the surrounding area sufficient for the dog todetect it after the drugs are removed.

Expert testimony established that the crack cocaine found inthis case had a street value of approximately $8,000 and waspackaged for sale to street-level drug dealers. Forensictestimony established that the plastic bags containing the crackcocaine were tested, but no identifiable fingerprints wererecovered from them.

At the close of the State's case, defendant moved for adirected verdict. The motion was denied, and both partiesrested. The jury subsequently found defendant guilty, and thecourt sentenced him to 16 years' imprisonment.

On appeal, defendant first argues that the trial court erredin denying his motion to suppress evidence. Specifically,defendant claims that he was not arrested until after the cocainewas found; the search was not justified as a search incident toarrest; and no other exception to the warrant requirementapplies. In so arguing, defendant has abandoned the positionassumed in the trial court, which was that the police lackedprobable cause to arrest.

Having failed to challenge the search as unreasonable in thetrial court, defendant has waived the argument on review. Peoplev. Knight, 75 Ill. 2d 291, 388 N.E.2d 414 (1979). Moreover, itis well settled that an accused contesting a search bears theburden of proving standing--i.e., that he had a legitimateexpectation of privacy in the premises or property searched. Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421(1978). A defendant's transitory presence on the premises at thetime of the search or immediately prior to the search isinsufficient to establish a legitimate expectation of privacy. People v. Delgado, 231 Ill. App. 3d 117, 596 N.E.2d 149 (1992).

Defendant posits that he has a reasonable subjectiveexpectation of privacy in material he has hidden. However,defendant has not shown that such an expectation was legitimatein this case. In his statement to O'Boyle, defendant claimedthat he was merely using the property for urinating, conductwhich in itself justified a reasonable suspicion of criminaltrespass and further investigation. See Terry v. Ohio, 392 U.S.1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The evidenceindicated that defendant was an intruder with no arguablylegitimate interest in the premises or the loose siding used toconceal the drugs. See People v. Bower, 291 Ill. App. 3d 1077,685 N.E.2d 393 (1997) (defendant's possession of rental car inviolation of lease agreement did not confer standing to protestsearch); cf. People v. Payton, 317 Ill. App. 3d 909, 741 N.E.2d302 (2000) (defendant had reasonable expectation of privacy infamily barbeque grill on porch of apartment building wheredefendant lived with his mother). Accordingly, we hold thatdefendant has failed to establish that he had standing to contestthe search, and we affirm the trial court's denial of defendant'smotion to suppress evidence.

Next, defendant argues that the State's evidence of knowingpossession of the cocaine was insufficient to sustain aconviction, and the trial court erred in denying his motion todirect a verdict in his favor.

Possession may be actual or constructive. Actual possessionneed not be demonstrated if constructive possession can beinferred. People v. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d1127 (2002). Constructive possession exists where an intent andcapability to maintain control and dominion over the substanceexists. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d 1127. Evidenceestablishing constructive possession is often entirelycircumstantial. People v. Minniweather, 301 Ill. App. 3d 574,703 N.E.2d 912 (1998). Where narcotics are found on the premisesrather than on a defendant, constructive possession may beinferred from facts showing that he once had physical controlwith intent to exercise control in his own behalf, he has notabandoned the drugs and no other person has obtained possession. People v. Adams, 161 Ill. 2d 333, 641 N.E.2d 514 (1994).

To sustain a conviction based on unlawful possession of acontrolled substance, the State must also prove that thedefendant had knowledge of the presence of the substance. Peoplev. Schmalz, 194 Ill. 2d 75, 740 N.E.2d 775 (2000). Knowledge canrarely be proved directly but may be inferred from surroundingcircumstances, including the defendant's actions, declarations,or other conduct. People v. Roberts, 263 Ill. App. 3d 348, 636N.E.2d 86 (1994). In considering the sufficiency of evidence onreview, this court must determine whether all of the evidence,viewed most favorably to the prosecution, is sufficient toconvince any rational trier of fact that the elements of theoffense have been proved beyond a reasonable doubt. People v.Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985).

In this case, the State introduced ample circumstantialevidence of defendant's constructive possession of the cocainesecreted in the siding of the house on Boulder Street. Defendantarrived at the residence approximately five minutes ahead of thepolice and was crouched in the immediate area where the drugswere found. The evidence indicated that the cocaine had beenplaced under the siding so recently that the drug-sniffing dogcould not detect its odor. And, there was no indication that anyother person was in that area during the period between when thecocaine would have been placed there and when the police foundit. This evidence was sufficient to give rise to a reasonableinference that defendant once had physical control of thecocaine.

In addition, defendant's knowledge of the presence of thedrugs and his intent to maintain exclusive control of them wereestablished by circumstantial evidence, including defendant'sconduct and comments at the scene. Hiding drugs to avoiddetection indicates an intent to exercise control over them. Adams, 161 Ill. 2d 333, 641 N.E.2d 514. Upon hearing that thepolice were on the premises, defendant quickly moved away fromwhere the cocaine was hidden. A permissible inference was thatdefendant knew of the presence of contraband and sought tophysically distance himself from it. Defendant then lied to thepolice about his activity at the rear of the house and advisedthem that they could not search the area without a warrant,indicating that he intended to maintain exclusive control of thedrugs.

Based on the foregoing evidence, a rational trier of factcould conclude that defendant knowingly possessed the cocaineunder the siding. See Minniweather, 301 Ill. App. 3d 574, 703N.E.2d 912. Accordingly, the evidence was sufficient to supportdefendant's conviction, and the trial court did not err indenying defendant's motion for a directed verdict.

The judgment of the circuit court of Will County isaffirmed.

Affirmed.

HOLDRIDGE and HOMER, JJ., concur.