People v. Campbell , 432 Ill. Dec. 385 ( 2019 )

2019 IL App (1st) 161640
No. 1-16-1640
Opinion filed April 9, 2019
Second Division
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 15 CR 9396
)
DeANGELO CAMPBELL, ) Honorable
) Alfredo Maldonado,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 DeAngelo Campbell was found guilty of aggravated unlawful use of a weapon and
sentenced to one year in prison. On appeal, Campbell contends that the State failed to prove him
guilty beyond a reasonable doubt because the police officers’ testimony was not credible and
there was no physical evidence linking him to the gun. Specifically, Campbell argues that it is
inherently incredible that he would have dropped the gun he was accused of possessing in plain
view of the officers.
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¶2 While we are not insensitive to Campbell’s claim about the systemic credibility problems
created by this so-called “dropsy” testimony, we affirm because, after viewing the evidence in
the light most favorable to the State, we conclude that the officers’ testimony was not so
unworthy of belief as to render the trial court’s finding of guilt unreasonable.
¶3 Background
¶4 Campbell was charged with nine counts of aggravated unlawful use of a weapon
(AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2016)) stemming from a traffic stop.
Campbell waived his right to a jury trial.
¶5 At trial, Chicago police officer Michael Laurie testified that on the night of May 31,
2015, he was working with a team of officers patrolling the area near the 4700 block of South
Ellis Avenue due to recent shootings between gangs. Laurie, along with his partner, Officer
Steven Hefel, was in a covert vehicle. Five other police officers—Richard Sanchez, Osbiel
Montoya, Goetz, Suing, and Stevan Vidljinovic—were in two other covert vehicles. All three
vehicles were traveling on Ellis Avenue and in constant radio communication.
¶6 At 4722 South Ellis Avenue, Laurie saw a white Dodge Durango illegally double-parked
and obstructing traffic. The lead vehicle, occupied by Goetz, Suing, and Vidljinovic, passed the
Durango and stopped in front of it. The other two vehicles, including the one Laurie was in,
parked behind the Durango. Following communication with the lead vehicle that they had
identified the smell of cannabis emanating from the Durango, the officers conducted a narcotics
investigation. Laurie, Sanchez, Montoya, Goetz, Suing, and Vidljinovic approached the
Durango, which drove about five feet before stopping. None of the officers had their weapons
drawn at this point. When Laurie was about 12 to 15 feet away from the Durango, the right rear
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passenger door opened and Campbell began running. Laurie instructed him to get back inside the
Durango. Campbell did so.
¶7 As Campbell was returning to the Durango, Laurie saw him retrieve a handgun with a
wooden grip, later identified as a Smith & Wesson .38-caliber revolver, from his waistband and
throw it onto the floorboard of the back seat. Campbell then got in and shut the door. On seeing
the gun, Laurie drew his service weapon and immediately began yelling “gun” to inform the
other officers, who were surrounding the vehicle. Though nighttime, there was street lighting and
lighting from the police vehicles’ headlights. Laurie and Montoya removed Campbell from the
Durango and placed him in custody. Laurie then informed Vidljinovic, who was on the other side
of the Durango, about the handgun located on the floorboard so that he could recover it. Laurie
identified two other individuals, who were in the driver’s seat and the front passenger seat of the
Durango. The incident happened within seconds.
¶8 Chicago police officer Vidljinovic testified that he was patrolling the area near a covert
vehicle with Officers Goetz and Suing. Four other officers were also patrolling in two covert
vehicles. He saw an illegally double-parked Dodge Durango that was obstructing traffic.
Vidljinovic’s vehicle passed the Durango, and he smelled an odor of cannabis. Vidljinovic
stopped in front of the Durango, and the other two covert vehicles parked behind it.
¶9 Vidljinovic, Goetz, and Suing approached the Durango without their weapons drawn and
announced their office. The Durango shifted gears and drove in the direction of the officers, at
which time Vidljinovic and the other two officers drew their weapons. The Durango came to an
abrupt stop after traveling a few feet. The three occupants were instructed to park and show the
officers their hands. The two individuals in the front complied, but Vidljinovic could not see
Campbell, who was in the back seat. The rear passenger’s side door opened, and he heard some
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commotion. After hearing the passenger’s side door shut, he approached and opened the rear
driver’s side door. Officers Laurie and Montoya were securing Campbell on the other side.
Laurie informed Vidljinovic of the handgun, which he located on the floorboard underneath the
back seat and secured. He also confirmed that it was loaded and later inventoried.
¶ 10 Officer Vidljinovic prepared a police report with the input and observations from the
other officers. The report served as a summary of events that occurred. The other officers had the
opportunity to review and edit the report. Absent from the report was Laurie seeing Campbell
trying to get away from the vehicle before being instructed to return to it. The report stated that
Campbell placed the handgun inside, as opposed to tossing it, as testified to by Laurie.
¶ 11 Chicago police officer Montoya testified that, as he and the other officers approached the
Durango, he saw Campbell, who was about 10 to 12 feet away, getting out and moving towards
the curb at a fast pace. He heard Laurie direct Campbell to get back inside, which he did. As
Campbell approached the Durango he tossed a large object with a brown handle onto the back
seat floorboard, later identified as a handgun. Montoya and Laurie then detained Campbell.
¶ 12 The State introduced a certification that Campbell did not have a firearms owner’s
identification card. The State closed, and Campbell moved for a directed verdict, which the trial
court denied.
¶ 13 Sayna Williams, Campbell’s girlfriend, testified that she has resided with Campbell for
many years. On that night, he contacted her to tell her he was coming home and would need her
to let him into the apartment. When he arrived, Williams was standing at the front door to the
building. She saw the Durango stop in front. Williams knew what kind of car Campbell would be
in and generally knew who else was in the car with him. She could see Campbell speaking with
the individual in the passenger seat. Then, she saw him start to get out. Williams explained that
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No. 1-16-1640
Campbell only had one leg out of the Durango as the police quickly came up to him and told him
to get out. She stated that she saw three police vehicles and at least five police officers. She was
about 10 feet away, but the lighting was not good because the street lights were out. She
attempted to learn why Campbell was being arrested, but the officers instructed her to go inside.
Williams never saw Campbell with a handgun.
¶ 14 On cross-examination, Williams explained that Campbell did not have a key to the
apartment because it cost $75. She also stated that she had not spoken with Campbell about his
case even though they still resided together.
¶ 15 Campbell testified that he was at a family member’s house and asked a friend for a ride to
his apartment, which he and Williams shared. His friend drove the Dodge Durango. As Campbell
said goodbye to his friends and began to get out, he saw the police officers, who were yelling at
him to get back in. He was then placed in handcuffs by one of the officers. Campbell stated that
he did not have a handgun on his person at any point, he did not see a gun in the Durango at any
time, and the Durango was crowded with “a lot of stuff.” The defense rested.
¶ 16 In finding Campbell guilty on all nine counts of AUUW, the trial court made the
following findings regarding the credibility of the witnesses. The court noted that every witness
has a bias, but it found that the officers’ testimony was consistent and credible and the varying
terminology as to how the gun arrived on the floorboard was insignificant. The court had some
issues with the credibility and consistency of Campbell and his girlfriend’s testimony.
Specifically, it was odd that Williams stated that she had not spoken to Campbell about the case
and that Campbell did not have a key to an apartment where he had been living for several years.
Campbell filed a motion for new trial, which was denied. The trial court later sentenced Dixon to
the statutory minimum of one year in prison.
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¶ 17 Analysis
¶ 18 Campbell argues that the evidence was insufficient to convict him on several grounds. He
points to inconsistencies between the officers’ testimony and the police reports. He notes the lack
of physical evidence connecting him to the gun. He describes his own testimony as the more
plausible version of events. Most importantly, however, he argues that the officers are incredible
because it is beyond human experience to believe that he tossed the gun into the Durango in sight
of the officers. This type of testimony is referred to as “dropsy” testimony. The State counters by
minimizing the lack of physical evidence and downplaying the officers’ inconsistencies as
minor. The State also argues that, to the extent “dropsy” testimony exists, it is not a basis on
which to categorically disbelieve the officers’ testimony. While we have serious reservations
about the plausibility of a suspect openly discarding contraband with knowledge of police
presence, on the facts and in light of the standard of review, we ultimately agree with the State
and affirm Campbell’s conviction.
¶ 19 When faced with a challenge to the sufficiency of the evidence, we must determine
whether, “after viewing the evidence in the light most favorable to the State, any rational trier of
fact could find all the elements of the crime proven beyond a reasonable doubt.” People v. White,
2017 IL App (1st) 142358, ¶ 14. “All reasonable inferences from the evidence must be drawn in
favor of the prosecution.” People v. Hardman, 2017 IL 121453, ¶ 37. The fact finder determines
the credibility of witnesses, weighs the testimony, resolves conflicts in the evidence, and draws
reasonable inferences from the evidence. People v. Williams, 193 Ill. 2d 306, 338 (2000). The
deference given to the trier of fact’s determinations has limits; the reviewing court may reverse a
conviction where the evidence “is so unreasonable, improbable, or unsatisfactory that it justifies
a reasonable doubt of defendant’s guilt.” People v. Wheeler, 226 Ill. 2d 92, 115 (2007).
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¶ 20 Campbell’s argument, that the officers cannot reasonably be believed, depends in large
part on his characterization of their testimony as “dropsy” testimony. A case involving “dropsy”
testimony is one in which “a police officer, to avoid the exclusion of evidence on fourth-
amendment grounds, falsely testifies that the defendant dropped the [contraband] in plain view.”
People v. Ash, 346 Ill. App. 3d 809, 816 (2004). Many courts trace the origin of this description
of officer testimony to a decision out of the New York Criminal Court in People v. McMurty,
314 N.Y.S.2d 194 (N.Y. Crim. Ct. 1970). See, e.g., United States v. Janis, 428 U.S. 433, 448
n.18 (1976) (citing McMurty, 314 N.Y.S.2d 194); State v. Brunori, 578 A.2d 139, 142 n.6 (Conn.
App. Ct. 1990) (same); Ruiz v. State, 50 So. 3d 1229, 1232-33 (Fla. Dist. Ct. App. 2011) (same).
¶ 21 In McMurty, a motions judge balanced competing testimony of an officer and defendant.
The officer testified that, while on patrol, he saw the defendant step out of a doorway after seeing
the police car. McMurty, 314 N.Y.S.2d at 195. He then dropped a small plastic container holding
marijuana. Id. The defendant testified that he would never drop the container because he knew it
contained marijuana and he knew that a challenge to any eventual search or seizure would be his
best defense. Id. The judge, while he denied the defendant’s motion to suppress, explained the
problem of “dropsy” testimony in some detail.
¶ 22 The proliferation of “dropsy” testimony, according to McMurty, arises out of the United
States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). See McMurty, 314
N.Y.S.2d at 196. The exclusionary rule, barring the admission of unlawfully obtained evidence
in a criminal trial, only applied to federal prosecutions until Mapp. See 367 U.S. at 654-55. In
Mapp, the court incorporated the exclusionary rule and held that it was enforceable against the
states. Id. at 655.
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¶ 23 Before Mapp, a local police officer who engaged in unconstitutional conduct—an arrest
based on less than probable cause, for example—could still see the evidence admitted at trial.
McMurty, 314 N.Y.S.2d at 196. In other words, a police officer could truthfully testify in state
court that he or she stopped someone for no reason and the prosecution against that person would
be unaffected. Id. After Mapp, an officer’s truthful testimony that he or she stopped someone for
no reason would result in suppression of the evidence. Id. So, “the police made the great
discovery that if the defendant drops the [contraband] on the ground, after which the policeman
arrests him, the search is reasonable and the evidence is admissible.” Id. Put simply, Mapp led to
police officers lying about their encounters with citizens to ensure that the evidence they
unlawfully obtained would nonetheless be admitted later. Janis, 428 U.S. at 447-48 n.18
(“exclusionary rule tends to lessen the accuracy of the evidence presented in court because it
encourages the police to lie in order to avoid suppression of evidence” (citing McMurty, 314
N.Y.S.2d 194)).
¶ 24 Illinois courts have similarly defined “dropsy” cases as those in which an officer falsely
testifies that a defendant dropped contraband in plain view “to avoid the exclusion of evidence
on fourth-amendment grounds.” Ash, 346 Ill. App. 3d at 816. In Ash, however, the defendant
made a far bolder claim, asserting that the mere existence of “dropsy” testimony in some cases
meant that officers should be viewed as less trustworthy in all cases. Id. More recently, this court
has viewed the phenomenon of “dropsy” testimony with skepticism, describing the “widespread
nature” of this kind of testimony as “alleged[ ]” and based only on anecdotal evidence. People v.
Moore, 2014 IL App (1st) 110793-B, ¶¶ 12-13, appeal denied, judgment vacated on other
grounds, No. 117919 (Ill. Jan. 20, 2016).
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¶ 25 Outside of Illinois, “dropsy” testimony has been acknowledged as a genuine problem
confronting the criminal justice system. See, e.g., Janis, 428 U.S. at 447-48 n.18 (citing “studies
and commentary” showing that the exclusionary rule “encourages the police to lie *** to avoid
suppression”); United States v. Contreras, 820 F.3d 255, 267 (7th Cir. 2016) (finding, “cases in
which defendants drop drugs in plain view invite skepticism” and noting scholarly
documentation of “an increase of ‘dropsy’ cases” after Mapp); Dixon v. State, 327 A.2d 516, 517
(Md. 1974) (describing “dropsy” cases, along with inventory searches, as “afflict[ing] law
enforcement with the yawning credibility gap”). In New York, the problem was so pervasive that
the police themselves named this kind of false testimony: “testilying.” Christopher Slobogin,
Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040 n.11 (1996)
(citing City of N.Y., Commission to Investigate Allegations of Police Corruption and the Anti-
Corruption Procedures of the Police Department: Commission Report 36 (1994)). Of particular
relevance here, a New York City report regarding police corruption indicates that officers
frequently “testilied” about things like traffic violations, observing bulges in pockets, or plain
view sightings of guns or drugs to justify potentially unlawful searches and seizures. City of
N.Y., Commission to Investigate Allegations of Police Corruption and the Anti-Corruption
Procedures of the Police Department: Commission Report 38 (1994).
¶ 26 Of course, it is not enough for us to conclude that untruthful “dropsy” testimony exists;
we also must be cognizant of the way courts have treated it. As we see it, there are essentially
three categories of treatment of “dropsy” testimony. At one extreme, there are courts that decline
to acknowledge at all that this type of testimony can be problematic. See Moore, 2014 IL App
(1st) 110793-B ¶ 13 (assuming, but refusing to say, that the evidence of “dropsy” testimony
“actually establishes a trend or problem”). At the other extreme, courts have issued wholesale
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condemnations of this type of testimony. See People v. Quinones, 402 N.Y.S.2d 196, 198 (N.Y.
App. Div. 1978) (rejecting officer’s “dropsy” testimony “as a matter of law” where it has “all
appearances of having been patently tailored to nullify constitutional objections”). But, the
largest group of cases, including McMurty, sees “dropsy” testimony as a lurking saboteur of the
fair administration of criminal justice while recognizing the testimony in each individual case
must be evaluated for its own credibility. See, e.g., Contreras, 820 F.3d at 267 (“Skepticism,
however, does not suffice to supersede the trial court’s credibility determination.” (Internal
quotation marks omitted.)); Brunori, 578 A.2d at 142 n.6 (acknowledging criticism of “dropsy”
testimony but declining “to depart from the long standing rule that witness credibility *** is
within the province of the jury”); McMurty, 314 N.Y.S.2d at 197 (finding “[b]eyond any doubt”
that the “dropsy” problem exists, but concluding that “judges must decide the cases that come
before them”).
¶ 27 Critical whenever an officer testifies that the defendant dropped contraband in plain view
is this question: would the officer’s detention or search of the defendant have violated the fourth
amendment if he or she had not seen the defendant drop the contraband in plain view? If the
answer is “no,” there is far less reason to doubt the credibility of the officer’s testimony because
the officer has nothing to gain by lying about the drop. If, however, the answer is “yes,” both
trial courts and courts of review should take care to analyze the credibility of the officer because
the incentive to lie to avoid suppression of the evidence is at its highest.
¶ 28 Aside from a conclusory statement that, absent the plain view sighting of the gun, the
officers “illegally searched the vehicle,” Campbell does not argue that the officers’ conduct
would have violated the fourth amendment absent the “dropsy” testimony. The State does not
mount a fourth amendment defense of the officers’ conduct, instead arguing that this is not a
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“dropsy” case at all. We conclude that even without testimony about the observation of
Campbell tossing the gun into the car, the officers’ conduct likely comported with the fourth
amendment giving them little incentive to fabricate a “dropsy” narrative.
¶ 29 Officers Laurie and Vidljinovic testified that the Durango was illegally double-parked.
Vidljinovic also testified he could smell cannabis as he drove moved past the Durango. While we
are skeptical that Vidljinovic would have been able to smell cannabis in his moving car, even if
the Durango’s windows were open, the observation of a traffic violation is a valid reason to
conduct a Terry stop. People v. Hackett, 2012 IL 111781, ¶ 20 (decision to stop a car is
reasonable where officer has probable cause to believe that driver committed traffic violation).
Double-parking, or even stopping a car next to another car parked against the curb, violates the
Illinois Vehicle Code. 625 ILCS 5/11-1303(a)(1)(a) (West 2016). Several officers testified that
they pulled up to the Durango to do a “narcotics investigation,” but even pretextual traffic stops
are constitutional as long as the objective facts demonstrate cause for the stop. Whren v. United
States, 517 U.S. 806, 812-13 (1996) (“In United States v. Robinson, 414 U.S. 218 (1973), we
held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that
it was ‘a mere pretext for a narcotics search,’***.”).
¶ 30 Given that the stop was lawful, nothing in the record suggests that the officers’ actions
following the stop would have been unlawful. Our supreme court has said it is “well established
that following a lawful traffic stop, police may, as a matter of course, order the driver and any
passengers out of the vehicle pending completion of the stop without violating the protections of
the fourth amendment.” People v. Sorenson, 196 Ill. 2d 425, 433 (2001). It is also well-settled
that a police officer who sees contraband in a car from a lawful vantage point can then search the
passenger compartment. See People v. Colyar, 2013 IL 111835, ¶¶ 38-43 (finding officers can
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conduct protective search of car where they see evidence of weapon in plain view) (citing
Michigan v. Long, 463 U.S. 1032 (1983)). Even accepting Campbell’s testimony that “[t]here
was stuff everywhere” in the back seat, there is no evidence to suggest that a gun on the floor
would not have been visible to an officer outside of the car. A visible weapon would have
allowed the officers to search the passenger compartment. See Long, 463 U.S. at 1049-50.
¶ 31 In sum, removing the testimony about the tossing of the gun and keeping everything else
the same, we cannot say that there would have been any illegality to cover up as far as the fourth
amendment is concerned. We are skeptical of the idea that a person, with knowledge of the
presence of a police officer, would throw contraband in view of that officer. But, the recognized
reasons for an officer to present untruthful “dropsy” testimony are not present and so no reason
exists for us to intrude on the trial court’s express credibility findings or second guess the
officers’ testimony that Campbell tossed the gun into the back seat.
¶ 32 Campbell also argues that the evidence was insufficient to convict him because the
officers were otherwise incredible because (i) officers Laurie and Vidljinovic testified that the
Durango lurched forward five feet after the initial stop but officer Montoya did not; (ii)
Vidljinovic authored the police report but, as he did not directly observe the interaction with
Campbell, had to rely on the narratives of other officers; and (iii) the report does not include
information about Campbell attempting to run. We do not find these facts sufficient to reverse
the judgment.
¶ 33 Campbell further argues that the State failed to prove him guilty beyond a reasonable
doubt because the State did not present the gun itself or any other forensic evidence linking
Campbell to the gun. It is settled law that if witnesses’ testimony is otherwise credible, “the State
[is] not required to present additional physical evidence that linked defendant” to the gun. See
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People v. Daheya, 2013 IL App (1st) 122333, ¶ 76. Having rejected Campbell’s challenge to the
officers’ credibility, the absence of the gun itself from the evidence at trial does not alter our
conclusion.
¶ 34 Campbell finally argues that, if he had a gun, the more logical course of action for him to
take would have been to put it on the floor of the Durango before he got out. We agree this
would have been the more logical course, but we do not always see logical responses to police
presence from criminal suspects. See People v. Henderson, 33 Ill. 2d 225, 229 (1965) (“Far from
being contrary to human experience, cases which have come to this court show it to be a
common behavior pattern for individuals having [contraband] on their person to attempt to
dispose of them when suddenly confronted by authorities.”). We recognize that Henderson was
decided only four years after Mapp and so the incentives to lie about this kind of behavior may
not yet have become fully entrenched. We refer back, however, to our discussion of “dropsy”
testimony and its origins—on the facts here, we cannot say that the officers would have been so
overcome by a temptation to lie as to render their testimony incredible.
¶ 35 Affirmed.
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