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Docket No. 96834-Agenda 5-September 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ADAM ROSENBERG, Appellee.

Opinion filed November 18, 2004.

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of La Salle County,defendant Adam Rosenberg was convicted of one count of controlledsubstance trafficking (720 ILCS 570/401.1(a) (West 1998)), involving30 or more grams of a substance containing ketamine. He wassentenced to a term of 18 years' imprisonment.

Defendant, a resident of Massachusetts, was arrested based upona traffic stop of his alleged accomplice, David Belmonte, and asubsequent search of the car Belmonte was driving. The searchrevealed several boxes of ketamine in the trunk of the car. Defendantwas not present in the car or in the State of Illinois when the stop tookplace. Prior to trial, defendant filed a motion to quash arrest andsuppress evidence. He alleged that on February 22, 2000, a policeofficer stopped Belmonte, also a resident of Massachusetts, for atraffic violation. Belmonte was driving a rental car and presented theofficer with a valid driver's license and rental agreement for the car.The officer issued a warning to Belmonte for following too closelyand then asked for consent to search the car. Belmonte consented anda search was conducted. Nothing incriminating was found in thepassenger compartment of the car. Belmonte did not give officers akey to the trunk. They gained access to the trunk through thebackseat. An officer reached into the trunk and felt several boxes. Heopened one of the boxes and removed a small bottle containing a clearliquid. Belmonte was arrested for possession of a controlledsubstance. Belmonte gave a statement implicating defendant andclaimed that the boxes in the trunk belonged to defendant. Based onthis information, police arrested defendant. Defendant's motionfurther alleged that neither he nor Belmonte consented to a seizure ofthe boxes in the trunk of the rental car and that the conduct of theofficers constituted an illegal seizure. Defendant asked the court toquash his arrest and suppress all evidence obtained through the illegalsearch and seizure.

Belmonte was called by the prosecution under a grant of useimmunity to testify at the grand jury proceeding that resulted indefendant's indictment. He later testified at defendant's trial under agrant of use immunity. Defendant was permitted to subpoenaBelmonte from Massachusetts to appear in Illinois at the hearing ondefendant's motion to suppress. That hearing was held on June 14,2001. Initially, defense counsel advised the circuit court that defendantwas not contesting the search of the rental car or Belmonte's apparentauthority to consent to that search. Counsel advised the court thatdefendant intended to establish that the police seized the boxesillegally because they lacked probable cause to believe the boxescontained a controlled substance. Counsel argued that while Belmontegave consent to search the car, he did not give consent to seize theboxes. In response to questions from the court as to whether hismotion established any ownership or possessory interest in the itemsseized, counsel stated that he intended to call Belmonte to testify asto those matters. However, Belmonte's retained counsel informed thecourt that he had advised his client to assert his fifth amendmentprivilege against self-incrimination because a charge was pendingagainst Belmonte in connection with his transportation of theketamine. Defendant's counsel then asked the court to compel theprosecution to grant use immunity to Belmonte so that he could testifyat the suppression hearing. Counsel argued that it was a violation ofdefendant's due process rights to allow the prosecution to choose thehearings at which Belmonte would receive use immunity. Theprosecutor responded that Belmonte had been given no specialconsideration for his grand jury testimony and that he had given noindication that he would plead guilty to the charges against him. Theprosecutor also claimed that Belmonte could be facing federalcharges, as well as charges in other Illinois counties. The circuit courtdenied defendant's request to force the prosecution to grant Belmonteuse immunity, saying that it lacked the authority to do so. The courtindicated, however, that if Belmonte testified at trial, defendant couldask for a reconsideration of the court's ruling.

Defense counsel called Belmonte to testify at the suppressionhearing and Belmonte asserted his fifth amendment privilege. Counselthen called Illinois State Police trooper Keith Chestnut to testify.Chestnut, a trooper since 1998, stopped Belmonte for a trafficviolation. When asked if Chestnut could search his car, Belmonte gaveconsent. Chestnut denied that Belmonte told him the boxes in thetrunk belonged to defendant. Belmonte gave that information to taskforce agents and Chestnut was not present for that conversation.According to secondhand information provided to him, Chestnutlearned that Belmonte said defendant gave him the boxes found in thetrunk in San Diego and that Belmonte was to transport the boxescross-country to Boston, where defendant would retrieve them. Otherofficers arrived on the scene. After Belmonte gave consent to thesearch, Chestnut asked for the key to the trunk, as the trunk releaseon the dashboard of the car, as well as the release on the key fob, didnot work. Belmonte stated that was the way the car was given to himby the rental agency. After officers accessed the trunk through thebackseat and found the drugs, Chestnut arrested Belmonte andBelmonte gave him a key to the trunk. The vials removed from thetrunk were labeled ketamine. Chestnut recognized ketamine from hisprior experience as a local police officer with the Freeport, Illinois,police department, where he heard about burglaries of veterinaryclinics from which ketamine was stolen. He also took classes oncontrolled substances, but those took place subsequent to Belmonte'sarrest.

At the conclusion of defendant's evidence, the circuit courtgranted the State's motion for a directed finding, on the ground thatdefendant had failed to establish a sufficient privacy interest to contestthe search of the rental car or the seizure of the boxes containing theketamine. The court also ruled that the police had probable cause toseize the ketamine.

Defendant filed a motion to reconsider the court's ruling on theprobable cause issue based upon alleged misstatements by Chestnut asto his prior experience with ketamine. At a hearing held on thatmotion, Robert Smith, deputy chief of police with the Freeport policedepartment, testified that he performed a computer database search ofthe department's records of veterinary clinic burglaries from 1990 to1998. He found just one burglary from 1996. The only thing stolenwas United States currency. Jeff Downing, a Freeport police officerwho investigated the 1996 burglary, testified that checks and cashwere taken from the clinic and that no medicines were taken.Although there were a couple of burglaries at the Freeport AnimalHospital, which is within the jurisdiction of the Stephenson Countysheriff's department, Downing did not receive any information as towhat was taken. Based upon this testimony, the circuit court vacatedits order granting the State's motion for directed finding.

The court conducted a further hearing on defendant's motion tosuppress evidence. The prosecution called Richard Roodhouse, deputysheriff of the Stephenson County sheriff's department. He testifiedthat he investigated a burglary at the Freeport Animal Hospital inApril 1997. Several bottles of ketamine were taken. From 1992 to1998, there were 13 burglaries to veterinary clinics in Freeport orStephenson County. Roodhouse shared information on thoseburglaries with the Freeport police department. Only during the April1997 burglary was ketamine taken.

Sergeant Robert Cessna of the Illinois State Police testified thathe assisted Chestnut in the search of the rental car Belmonte wasdriving. Belmonte told them he did not have a key to the trunk. Theygained access through the backseat. Cessna reached into the trunk andfelt some cardboard boxes. Because of the angle, he was not able toopen any of the boxes, so he cut into the side of one of the boxes tosee what was inside. He felt glass and cut a larger hole so he couldremove it from the box. It was a 10 milliliter vial of a clear liquid. Onthe vial was a label stating that it was ketamine. The label alsocontained the word "caution" and stated that "federal law restricts thisdrug to use by or on the order of a licensed veterinarian." Cessnashowed the bottle to Chestnut.

Chestnut testified that when he looked at the label on the vialCessna handed him, he recalled from his academy training thatketamine is a controlled substance. When he was a police officer inFreeport, Chestnut was aware that ketamine was not a controlledsubstance at that time. At the close of the hearing, the circuit courtfound that the cautionary label on the vial of ketamine gave theofficers probable cause to seize it and conduct a further investigationto see whether the clear liquid inside the vials was in fact ketamine.

Defendant filed a motion to preclude Belmonte from testifying atthe trial, alleging that, by refusing to offer immunity to Belmonte atthe suppression hearing and by not insisting on trying Belmonte, theprosecution improperly manipulated the criminal process to protectBelmonte and to prevent him from providing testimony helpful to thedefense. Defendant claimed that he was prejudiced at the suppressionhearing because he was unable to challenge the legality of the stop andsearch of the rental car, as well as the nature of Belmonte's role in thecrime. The circuit court denied the motion, noting that defendantwould be able to cross-examine Belmonte at trial.

At trial, Belmonte testified that he had known defendant sincehigh school. Belmonte borrowed some money from defendant and, afew days later, defendant asked Belmonte to transport the ketamine,in return for which defendant would forgive Belmonte's debt. The twomen flew from Boston to San Diego, where defendant rented a carusing the driver's license and credit card of his brother, JonRosenberg. Defendant placed boxes in the trunk. He disengaged theautomatic trunk release button inside the car and he and Belmonteeach took a key to the trunk in case the car was stopped. Defendanttold Belmonte what route to take to get to Boston and advised him toavoid a certain checkpoint in San Diego. While Belmonte was driving,he and defendant kept in touch via their cell phones. After Chestnutstopped him for the traffic violation, Belmonte gave consent to searchthe car. He told the officers he did not have a trunk key. However,after watching the officers access the trunk through the backseat,Belmonte gave his key to one of the officers. Belmonte testified thathe was charged with possession of a controlled substance with intentto deliver and that, due to his cooperation with the State, he was notcharged with drug trafficking. Defendant did not testify at trial.

Following the trial, defendant filed posttrial motions. In none ofthe motions did defendant argue that the circuit court's refusal toforce the prosecution to grant Belmonte use immunity at thesuppression hearing deprived defendant of due process. Instead,defendant argued that Belmonte should have been precluded fromtestifying at the trial. The circuit court denied all motions.

On appeal, defendant argued that (1) the prosecution deprivedhim of due process by refusing to grant Belmonte use immunity at thesuppression hearing, (2) the circuit court erred in denying his motionto suppress, (3) his conduct did not constitute trafficking within themeaning of the statute, and (4) the penalty for controlled substancetrafficking is unconstitutionally disproportionate. The appellate courtvacated the circuit court's order denying the motion to suppress andremanded for a new hearing on the motion, finding that theprosecution had deprived defendant of due process by refusing togrant use immunity to Belmonte at the suppression hearing. The courtretained jurisdiction over the remaining issues should it becomenecessary to address them at a later time. 341 Ill. App. 3d 893. Wegranted the State's petition for leave to appeal. 177 Ill. 2d R. 315.Because we conclude that Belmonte's testimony at the suppressionhearing was not necessary to establish any legitimate expectation ofprivacy in the search of the boxes and seizure of the ketamine thatdefendant may have had, we reverse the judgment of the appellatecourt and remand to that court to address the issues over which itretained jurisdiction.

The question of whether a defendant has established a legitimateexpectation of privacy sufficient to permit him to contest a search orseizure is a question of law and our review is de novo. People v.Bower, 291 Ill. App. 3d 1077, 1079 (1997).

The fourth amendment to the United States Constitution protectsthe "right of the people to be secure in their persons, houses, papers,and effects, against unreasonable searches and seizures." U.S. Const.,amend. IV. Similarly, article I, section 6, of the Illinois Constitutionof 1970 provides that the "people shall have the right to be secure intheir persons, houses, papers and other possessions againstunreasonable searches [and] seizures." Ill. Const. 1970, art. I,