Truck driver was transporting a BMW from Nevada to Chicago, and discovered that BMW's battery was dead; he looked in trunk of vehicle and found multiple bundles wrapped in duct tape. Driver contacted local police who obtained 2 search warrants, to search BMW and contents of packages, and to place a tracking device on BMW. Defendant was convicted, after bench trial, of possession of over 5000 grams of cannabis; police had observed him unloading packages from trunk. Truck driver lacked apparent authority over the sealed packages in trunk of BMW which Defendant had been driving, and thus he could not consent to a police search of their contents. A warrant was required. Court's decision to deny Defendant's motions to quash the warrant and for a Franks hearing hinged solely on apparent authority of truck driver to consent to search the BMW, and not on a finding of probable cause. Evidence that could have supported or refuted a finding of probable cause was not introduced at hearing, and without such evidence, court could not have made a finding as to whether probable cause existed for police to search the packages. It was objectively unreasonable for defense counsel to proceed with the hearing with no evidence, and thus counsel was ineffective. Remanded for sole purpose of holding a Franks hearing.(HOFFMAN, concurring; ROCHFORD, specially concurring.)
Illinois Appellate Court
Criminal Court
Search & Seizure