THIRD DIVISION June 17, 2015

No. 1-13-2162

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 3946 ) AARON HARRIS, ) Honorable ) Evelyn B. Clay, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant Aaron Harris was convicted of possession of cannabis

and sentenced to 24 months of probation. On appeal, Harris argues that the trial court erred

in denying his pretrial motion to quash his arrest and suppress evidence obtained pursuant to

an anticipatory search warrant. Specifically, Harris contends that the police improperly

executed the search by arresting him before he opened a package containing narcotics that

had been fitted by law enforcement with an electronic monitoring and breakaway filament

device. Additionally, Harris claims that the State did not prove his knowing possession

beyond a reasonable doubt and that the trial court improperly assessed fees with respect to

credits accrued during incarceration. Finding that the trial court improperly denied the

motion to quash defendant’s arrest and suppress evidence, we reverse.

¶2 BACKGROUND No. 1-13-2162

¶3 On February 21, 2011, Harris was charged with possession of between 500 and 2,000

grams of cannabis and possession with intent to deliver the same after an arrest based on an

anticipatory search warrant. Prior to trial, Harris filed a motion to quash his arrest and

suppress evidence, alleging that the execution of the anticipatory search warrant was not

supported by probable cause because the warrant’s triggering event—the opening of the

package—had not occurred.

¶4 The parties proceeded directly to legal argument in support of their written memoranda

without calling any witnesses or introducing any evidence. The undisputed facts of Harris’s

arrest are as follows.

¶5 On February 21, 2011, law enforcement officers working on the Chicago police

department’s narcotics section package interdiction team intercepted a Fed Ex package that

had been shipped priority overnight from California and required no signature upon receipt.

The package was addressed to “S. Harris, 6629 North Kolmar, Lincolnwood, Illinois.”

Harris’s grandmother owned this single-family home, but she had lived in a nursing home for

several years. After a canine’s behavior indicated the presence of narcotics in the package,

officers obtained a search warrant to open the package. The four heat-sealed plastic bundles

inside the package tested positive for cannabis. At 1 p.m., the officers obtained an

anticipatory search warrant to search:

“S. Harris or anyone taking possession of the Fed Ex Priority Overnight

Parcel *** and to enter and search 6629 North Kolmar Ave *** or any premises or

vehicle that the Fed Ex Parcel *** is brought into once the parcel has been delivered

by law enforcement personnel and seize Cannabis, proof of residency, *** and any

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other evidence which have been used in the commission of or which constitutes

evidence of the Possession of Cannabis.”

¶6 The complaint for the anticipatory search warrant stated that “this search warrant will

only be executed if the above described Fed Ex parcel *** is accepted into a location or

vehicle” (emphasis added). The complaint explained that based on the officer’s experience

with hundreds of package interdiction search warrants, the parcel would likely move to

another location or be received by a person other than the person to whom it was addressed.

¶7 At the same time they obtained the anticipatory search warrant, the officers obtained an

order to install an electronic monitoring and breakaway filament device in the package. The

device sends an electronic signal when the package is standing still, moving, or opened. The

order approving the warrant stated that the petition and attached affidavit explained facts

sufficient to show probable cause that placement and monitoring of this device “will produce

evidence of a crime and assist in the identification of a perpetrator and possible co-

conspirators.” The face of the search warrant did not mention the order or installation of the

device.

¶8 After obtaining the warrant, the officers repackaged the box and made a controlled

delivery at approximately 2:10 p.m. the same day. Officer Sterling Terry, working in an

undercover capacity as a Fed Ex employee, brought the package to the front door of the

residence, rang the doorbell, and left the package on the front porch while other officers

maintained surveillance of the location.

¶9 Less than an hour later, Harris pulled into the driveway of the residence, exited the

vehicle while it was running, picked up the package, and immediately returned to his vehicle.

He placed the package in the rear passenger seat of his otherwise empty vehicle. The officers

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did not monitor or receive a signal from the breakaway filament that the package had been

opened or that it was moving.

¶ 10 By radio communications, the officers then decided to execute the warrant. Two officers

approached the vehicle, arrested Harris, and retrieved the package. After he was given

Miranda warnings, Harris said he understood them and made statements to the officers

regarding his knowledge of the contents of the package and its place of origin. The officers

made no recording or memoranda of these statements, and the officers did not include the

statements in their police report. The police report recited that Harris was “arrested after he

took into his possession a Fed Ex parcel that he knew contained cannabis and placed it into

his vehicle and attempted to drive away” (emphasis added).

¶ 11 In support of his motion to suppress, Harris argued that the officers who arrested and

searched him did not have probable cause to do so prior to the anticipatory warrant’s

triggering event. Specifically, Harris maintained that the warrant’s triggering event, in light

of the installation of the electronic monitoring and breakaway filament, was the opening of

the package. Harris contended that because he did not open the package, the evidence,

statements, and witnesses obtained as a result of the premature execution of the warrant

should be suppressed.

¶ 12 According to the State, the anticipatory search warrant’s triggering condition was the

delivery of the package to the listed address. Further, the State contended that the warrant

merely required acceptance and that this condition was satisfied when Harris retrieved the

package, placed it in his vehicle, and put his vehicle in reverse. Additionally, the State

argued that even if the search was not lawful pursuant to the warrant, the good-faith

exception applied, precluding the suppression of evidence obtained as a result of the search.

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¶ 13 The trial court denied the motion to suppress. The court agreed that the search warrant

expressly authorized a search once the package had been accepted into a location or vehicle.

The court found that the warrant’s requirements were met because the officers observed the

delivery of the package at the address set forth in the warrant and because the order for the

electronic monitoring device was a separate addendum to the warrant. The trial court also

found that, based on the totality of the circumstances, Harris satisfied the warrant’s triggering

condition when he picked up the package from the single-family home and brought it into his

vehicle “as if in the manner [of] expecting the delivery.”

¶ 14 Harris also filed a pretrial motion to suppress his statements to police, alleging that he

requested the assistance of an attorney before making inculpatory statements to the police

regarding the package. After an evidentiary hearing, the trial court denied this motion as

well, a ruling Harris does not challenge on appeal.

¶ 15 The matter proceeded to a jury trial. During trial, the witnesses, including Harris,

testified consistently with the stipulated facts above. The following additional evidence was

presented.

¶ 16 Officer Terry testified that a field test of the intercepted package indicated that it

contained approximately 1,350.5 grams of cannabis with a street value of approximately $16

per gram. Officer Terry observed Officer Jeffrey Show draft the anticipatory warrant, which

was a type he had used in past investigations. Officer Terry and his partners placed the

monitoring device within the package because “it alerts us to when the box is sitting still, or

when it’s moving, or when it’s opened.” Each of the six officers on the team then took a role

for making a “controlled delivery” of the package. The officers had no prior information

suggesting that Harris unlawfully possessed drugs or engaged in drug-related activities.

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¶ 17 Officer Nick Lymperis, one of the six officers surveying the scene, observed a man, later

identified as Harris, exit his vehicle after pulling into the driveway. Officer Lymperis did not

observe Harris examine the package itself, knock on the door, or look around the house

before bringing the package back to his running vehicle. The distance between Harris’s

vehicle and house was about 20 feet, and Harris held the package for about 30 seconds.

After Harris put his vehicle in reverse, the officers decided by radio communications to

converge almost immediately by pulling their vehicles into the driveway. The filament

device never indicated that the package had been opened. The officers decided to arrest

Harris because they did not want to get into a car chase in an unfamiliar area around school

dismissal time. No evidence was presented as to the proximity of any schools to the site of

the arrest.

¶ 18 After police blocked Harris from exiting the driveway, Officer Lymperis walked up to the

driver’s side of the vehicle and announced his office. He handcuffed Harris, brought Harris

back to his vehicle, and gave him Miranda warnings. According to Officer Lymperis, Harris

stated he understood his Miranda rights and then “freely” told him about the package, stating

that “he had a friend in California who agreed to help him financially and was going to send

him some cannabis to sell so he can make money” and that “he thought there was three

ounces of cannabis in the box.” According to Officer Lymperis’s testimony on cross-

examination, Officer Humpich also heard these statements. Neither Officer Lymperis nor

Officer Humpich taped, recorded, or wrote out these statements for Harris to sign.

¶ 19 After the State rested, Harris made a motion for a directed finding of not guilty, arguing

that the package was not sent to him because it was addressed to “S. Harris.” The trial court

denied the motion.

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¶ 20 The defense called Dale Harris, Harris’s father, as a witness. Dale is a Chicago police

officer, and the home at 6629 North Kolmar belongs to Sylvia Harris, Dale’s mother and

Harris’s grandmother. Dale keeps personal possessions at the home even though no one has

lived there for a number of years. He stated that many people have access to and keys to the

home, including his siblings, children, uncles, nieces, nephews, cleaning crews, and realtors.

He and his children, including Harris, make regular trips past the house, but Harris did not

have keys to the house.

¶ 21 Harris also testified. On February 21, 2011, he drove past 6629 North Kolmar on his

usual route to the art store from his mother’s house. He noticed the package as he drove by,

backed up, and then pulled into the driveway. Harris turned his vehicle’s engine off, went to

the front porch, examined the package’s address, brought it back to his vehicle, and then

restarted the engine.

¶ 22 According to Harris, after he put the vehicle in reverse, six to eight cars pulled into the

driveway behind him. He testified that he was put on the ground with force for about five

minutes after officers told him to exit the vehicle. Then the officers brought him to the front

porch, gave him Miranda warnings, and asked him about the package and about the police

identification on his vehicle. He was next brought into Officer Lymperis’ vehicle, read his

Miranda rights again, and questioned again. At that point, Harris said he told Officer

Lymperis that he wanted to speak with his lawyer.

¶ 23 Harris denied making any statements concerning the package, its contents, or its sender.

He stated that he knew his aunt received packages at the home but that he was not expecting

delivery of the package. Harris testified that the officers later brought him to a room at the

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Homan and Filmore organized crime division facility and handcuffed him for four to five

hours, during which time no one questioned him.

¶ 24 The jury found Harris guilty of possession of cannabis but not guilty of possession of

cannabis with intent to deliver. Harris then filed a motion for a new trial, based in part on the

trial court’s denial of the motion to quash arrest and suppress evidence. The trial court

denied the motion and sentenced Harris to two years of probation. Harris timely appealed.

¶ 25 ANALYSIS

¶ 26 On appeal, Harris raises three issues: i) his arrest should have been quashed and the

evidenced obtained suppressed because it was premised upon police officers’ premature

execution of an anticipatory warrant, ii) his knowledge of the contents of the package was not

proven beyond a reasonable doubt, and iii) the trial court improperly assessed fees accrued

during his incarceration. Because the first issue is dispositive, we address only that issue and

find that the trial court erred in denying Harris’s motion to quash arrest and suppress

evidence.

¶ 27 Both parties agree that because the issue presented on appeal concerns the legal

conclusion of whether suppression was warranted, the standard of review is de novo. People

v. Luedemann,

(2006); People v. Carlson,

(1999).

Although a court's ruling on a motion to quash arrest and suppress evidence generally is

subject to reversal only if the ruling is manifestly erroneous, where the trial court has applied

the law to uncontroverted facts, the case presents a question of law that is reviewed under a

de novo standard. People v. Carrera,

(2001).

¶ 28 The fourth amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

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violated.” U.S. Const., amend. IV. The Illinois Constitution similarly protects against

unreasonable searches and seizures. Ill. Const. 1970, art. I, § 6. A valid search warrant must

state with particularity the place to be searched and the persons or things to be seized. United

States v. Grubbs,

(2006); see also 725 ILCS 5/108-7 (West 2012) (requiring

the place or person to be searched and the items to be seized to be “particularly described in

the warrant”).

¶ 29 As relevant to this case, an anticipatory search warrant is a warrant based upon an

affidavit showing probable cause that at a future time certain evidence of a crime will be

located with an identified person or in a specific place. People v. Bui,

(2008); Carlson,

; 2 Wayne R. LaFave, Search and Seizure § 3.7(c) (5th

ed. 2012). The execution of an anticipatory search warrant is usually subject to a condition

precedent other than the mere passage of time, known as a "triggering condition." Grubbs,

. “The requirement that certain events must take place before the execution of

an anticipatory search warrant assures that a search will take place only when justified by

probable cause.” (Emphasis in original.) Carlson,

; see also People v.

Galdine,

(1991) (judge must ensure that anticipatory warrant

will not be executed prematurely by making its execution contingent on occurrence of

specific events or passage of specific period of time). A warrant’s triggering condition need

not be reflected on the face of the warrant and may be included in supporting affidavits

attached thereto. Grubbs,

; accord United States v. Miggins,

(6th Cir. 2002). However, anticipatory warrants should be narrowly drawn to “avoid

premature execution as a result of manipulation or misunderstanding by the police.” United

States v. Brack,

(7th Cir. 1999). The purpose of defining a triggering

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event in an anticipatory warrant is to ensure that officers serve an “almost ministerial” role in

deciding when to execute the warrant. United States v. Ricciardelli,

(1st Cir.

1993); see also People v. Curry,

(1981) (“the person to be searched

must be described with sufficient particularity to avoid leaving the executing officer with any

doubt or discretion”).

¶ 30 In this case, both Harris and the State agree that the search warrant’s triggering event

required the package to be “accepted” in order for probable cause to exist. The parties’

dispute centers on whether the electronic monitoring and opening filament device must have

been used to establish that the triggering event occurred.

¶ 31 Under the circumstances here, we find that officers were required to use the electronic

monitoring device to identify the anticipatory warrant’s triggering event for two reasons.

First, the device provides the necessary objective evidence to particularly identify the person

or property to be searched, as general warrants are constitutionally prohibited. Grubbs,

; Carlson,

. Additionally, the objective evidence from the device

limits the exercise of law enforcement’s unfettered discretion to determine whether the

warrant’s triggering event has actually occurred. See People v. Urbina,

(2009) (the executing officers searched a residence not listed on the search

warrant, and the warrant failed to describe with sufficient particularity the premises to be

searched). Because, as we discuss in more detail below, the officers executed the warrant

prior to the triggering event, their conduct was not authorized by the warrant and Harris’s

motion to quash his arrest and suppress evidence should have been granted.

¶ 32 Our decision is informed by our previous analysis in People v. Bui,

(2008). In Bui, law enforcement intercepted a package containing narcotics that was

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addressed to the defendant at a nail salon.

. Prior to seeking the warrant, officers

determined the sender’s name and return address on the package were fictitious.

The

officers obtained permission to place an electronic monitoring and filament device in the

package, as well as an anticipatory search warrant allowing them to search “ ‘Duoc Bui or

anyone taking control of the [package],’ ” the nail salon, “ ‘and/or any other location that the

parcel is accepted into.’ ”

. During their controlled delivery of the package, the

officers watched as a nail salon employee signed for and placed the package under a counter.

. Nearly four hours later, the defendant arrived at the nail salon, picked up the

package and drove away.

The officers followed the defendant as he took the package

with him into a new vehicle and then into a private residence.

Shortly thereafter, the

electronic monitoring and filament device alerted the officers that the package had been

opened, and the officers executed the warrant.

. They entered the home, arrested

the defendant, and discovered additional narcotics in the defendant’s bedroom where he had

opened the package.

¶ 33 Seeking to suppress the evidence recovered in the search, the defendant argued that the

warrant authorized a search once the package was received and that the officers exceeded the

scope of the warrant when they searched the defendant’s bedroom at a different location

hours after the nail salon employee accepted delivery of the package.

. The

State argued that the officers properly executed the search warrant at the defendant’s home.

. Apropos of its position here, the State contended in Bui that if the package was

not opened, the warrant did not authorize a search of any location and, in particular, that the

warrant did not authorize police to search the nail salon and the unsuspecting receptionist

who accepted delivery of the package.

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¶ 34 In finding that the warrant was validly executed, this court reasoned that the defendant’s

interpretation of “accept” as used in the application for the warrant was “overly technical”

and not consistent with the purpose of the warrant when considered in the context of the facts

and circumstances of the case.

This court ruled that “accept” meant “to receive and open

the package” because the package was addressed to a public place and because the officers

installed the electronic monitoring device in the package precisely for the purpose of

identifying the person who opened it. (Emphasis added.)

. Therefore, the court

held that the search was properly executed at a location other than where the package was

delivered and upon the defendant’s opening of the package as indicated by the device.

.

¶ 35 Harris argues that the officers prematurely executed the search warrant when they

arrested him before he opened the package, as indicated by the electronic monitoring and

opening filament device. Contrary to the position it took in Bui, the State contends here that

the “overly technical” definition of “accept” rejected in Bui authorized the officers to execute

the warrant when any individual brought the unopened package into a building or vehicle.

The State further argues that “accept” includes the “intent to retain” the package and that

Harris manifested an intent to retain the package by placing it in the back seat of his car.

¶ 36 We reject the State’s broad interpretation of “accept” as it would cast a wide net over the

categories of people and locations subject to search and vest equally broad discretion in the

officers to determine when the required triggering event had occurred. If we view the

anticipatory search warrant in this case independent of the information provided by the

device, as the State urges us to do, we would find the required particularity lacking as the

warrant fails to specify in any meaningful way the person or location to be searched. For

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example, under the State's expansive definition of “accept” urged here, the officers could

have arrested and searched (i) a next door neighbor who, seeing the package on the front

steps of the unoccupied home, brought it inside her home to later give to a family member,

(ii) the opportunistic thief who, observing an unattended package on the steps, decided to

make off with it with the obvious “intent to retain” it, or (iii) a realtor who, upon arriving

with a prospective buyer, brought the package inside the home for safekeeping. In other

words, the State’s position is that the officers had broad discretion to arrest and search any

number of people who might come into contact with the package without opening it, a result

at odds with the “almost ministerial” role officers are intended to play in the execution of an

anticipatory warrant. Ricciardelli,

. As the foregoing hypotheticals illustrate,

this interpretation of “accept” deprives the warrant of the particularity required to uphold its

validity. See People v. Reed,

(1990) (search warrant that

mentioned only one specific name and then encompassed all “ ‘other persons present in a

public bar’ ” held defectively open-ended and unconstitutional).

¶ 37 Here Harris was in no different position than the receptionist in Bui. The package was

not addressed to him and nothing in his conduct in putting the unopened package in the back

seat of his car indicated that he was aware of its contents. Police further had no information

about Harris and, in particular, no evidence of his involvement in using or selling drugs.

Unlike Bui, the record here does not disclose that police had investigated the return name and

address on the package to determine if they were fictitious. Thus, the only conduct on

Harris’s part reflected in the record—picking up the package and putting it in his car—was

insufficient, under the definition of “accept” adopted in Bui, to satisfy the warrant's triggering

event. And because the triggering event had not occurred, the officers lacked probable cause

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in executing the anticipatory search warrant and the evidence obtained as a result must be

suppressed. See People v. McCauley,

(1994).

¶ 38 If the existence of probable cause rested solely on the fact that some unidentified person

retrieved the package, there would have been no reason to request the order permitting

installation of the device. See People v. Sutherland,

(2006) (noting that

warrants and their supporting documents are not to be read in a hyper-technical manner but,

rather, in a commonsense fashion); see also Bui,

(stating that use of

the device demonstrates that “acceptance” meant to receive and open the package because

“[w]ere this not the case, we fail to see why police would seek to place a monitoring device

inside the package”). The electronic monitoring device order, signed at the same time as the

search warrant, clearly stated that “placement and monitoring of the [device] *** will

produce evidence of a crime and assist in the investigation.” The officers’ failure to use the

device for this purpose was contrary to the justification for the warrant.

¶ 39 We do not hold that under any and all circumstances the opening of a package equipped

with an electronic monitoring device must occur before an anticipatory warrant can be

executed. Each case must be decided on its own facts. But where, as here, the package

moved for only a few seconds, the device was not monitored at all or used to track the

movement or opening of the package, and the officers had no prior information connecting

Harris to the package or its contents, the officers acted on insufficient objective evidence of

the warrant’s triggering event and prematurely executed the search without probable cause.

See Illinois v. Gates,

(1983) (holding that a probable cause

determination is a “practical, common-sense decision” that should be based on a “totality-of-

the-circumstances analysis” within the “particular factual contexts”).

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¶ 40 The State argues that even if we find that the warrant contemplated that the package

would be opened prior to its execution, we should nevertheless find that the officers acted

reasonably in executing the warrant. The State invokes the good faith exception to the

exclusionary rule and contends that the premature execution of the warrant here does not

mandate suppression of the evidence recovered as a result. We disagree.

¶ 41 Evidence obtained as a result of an illegal search must be excluded under the “fruit of the

poisonous tree” doctrine. McCauley,

. But the good faith exception to the

exclusionary rule applies when law enforcement officers rely on a reasonable belief that the

search is authorized under the warrant. Massachusetts v. Sheppard,

(1984); Bui,

. The Illinois Code of Criminal Procedure codifies

this exception:

“If a defendant seeks to suppress evidence because of the conduct of a peace officer

in obtaining the evidence, the State may argue that the peace officer's conduct was

taken in an objective and good faith belief that the conduct was proper and that the

evidence discovered should not be suppressed if otherwise admissible. The court

shall not suppress evidence which is otherwise admissible in a criminal proceeding if

the court determines that the evidence was seized by a peace officer who acted in

good faith.” 725 ILCS 5/114-12(b)(1) (West 2010).

¶ 42 “Good faith” is defined to encompass circumstances where a peace officer obtains

evidence “pursuant to a search or an arrest warrant obtained from a neutral and detached

judge, which warrant is free from obvious defects other than non-deliberate errors in

preparation and contains no material misrepresentations by any agent of the State, and the

officer reasonably believed the warrant to be valid.” 725 ILCS 5/114-12(b)(2) (West 2010).

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The good-faith exception does not apply to a search warrant that is so facially overbroad that

police officers could not reasonably believe it was valid. Reed,

(citing United States v. Leon,

(1984)).

¶ 43 Here, the officers could not reasonably have believed they had authority to arrest Harris

pursuant to the anticipatory warrant because they (i) personally participated in preparing the

application for the warrant, including its representation that installation of the electronic

monitoring and breakaway filament devices would likely “produce evidence of a crime,” (ii)

knew that the device had produced no information that the package had been opened, and

(iii) possessed no prior knowledge connecting Harris to the package or its contents. The

officers were aware of the ambiguity reflected on the face of the warrant, which broadly

authorized the search of “S. Harris or anyone taking possession of” the package, when

viewed independently of the complaint for the warrant and the order authorizing installation

of the electronic device. See Urbina,

(the good-faith exception did

not apply because officers knew of ambiguity in the warrant before its execution); see also

Jones v. Wilhelm,

(7th Cir. 2005) (“Where a warrant is open to more than

one interpretation, the warrant is ambiguous and invalid on its face and, therefore, cannot be

legally executed by a person who knows the warrant to be ambiguous.”). Further, at the time

the warrant was issued, Bui had been the law in Illinois for several years. Thus, without any

further information, officers could not have reasonably believed that the warrant authorized a

search of anyone who picked up the package without opening it and the good faith exception

does not apply.

¶ 44 Having determined that the warrant was executed without probable cause and the

evidence obtained as a result should have been suppressed, we next turn to the appropriate

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remedy. Harris requests outright reversal because the evidence is insufficient to sustain his

conviction or, alternatively, remand for a new trial with directions that the suppressed

evidence not be admitted on retrial. Harris discusses no authority supporting either remedy.

The State does not take a position on this issue.

¶ 45 The prospect of retrial raises double jeopardy concerns and requires us to assess the

sufficiency of the evidence against Harris. People v. Lopez,

(2008).

Although the double jeopardy clause prohibits retrial to allow the State another opportunity

to supply evidence it failed to present in the first trial, “[i]t does not *** preclude retrial

where a conviction has been set aside because of an error in the proceedings leading to the

conviction.”

(citing People v. Mink,

(1990) (defendant cannot be

retried once a court has determined that the evidence at trial was insufficient to sustain the

conviction)). As our supreme court observed in People v. Olivera:

“[R]etrial is permitted even though evidence is insufficient to sustain a verdict once

erroneously admitted evidence has been discounted, and for the purposes of double

jeopardy all evidence submitted at the original trial may be considered when

determining the sufficiency of the evidence.” People v. Olivera,

(1995) (citing Lockhart v. Nelson,

(1988)).

¶ 46 In assessing the sufficiency of the evidence here, we must determine whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could find all elements of the crime beyond a reasonable doubt. People v. Cunningham,

(2004); People v. Butler,

(1999). Although

Harris’s statements must be suppressed in any retrial, they were sufficient, together with the

other evidence adduced at trial, to sustain his conviction for possession of cannabis.

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¶ 47 There are several appellate cases adopting the position that if the State cannot prevail on

retrial without the suppressed evidence, the appropriate remedy is outright reversal. See

People v. Trisby,

(State could not prevail on retrial without

drugs recovered from defendant’s pocket in warrantless search unsupported by probable

cause); People v. Leigh,

(2003) (defendant’s conviction for

possession of a firearm by a felon reversed without remand where State could not prevail

without the suppressed firearm); People v. Elliot,

(2000) (reversing

the defendant’s conviction for possession of a controlled substance after finding that drugs

seized from the defendant should have been suppressed and that the State could not prevail

on remand without this evidence). But in these cases it was evidence of the crime itself that

was suppressed. Thus, it was appropriate to reverse outright because without evidence of the

commission of a crime, the prosecution could not proceed. People v. Lara,

(in criminal proceedings, the State must prove beyond a reasonable doubt that a crime

was committed, the corpus delicti, and the identity of the person who committed the crime).

¶ 48 Here, in contrast, the State obtained a warrant to open the package addressed to "S.

Harris" prior to its delivery and determined that it contained cannabis and, therefore, the

State can establish the corpus delecti without Harris’s suppressed statements. This evidence

is admissible in any retrial as is evidence that Harris drove by his grandmother’s house

shortly after the package was delivered and retrieved the package and placed it—unopened—

in the backseat of his car. While the sustainability of a conviction based on this evidence

alone is questionable (see People v. Hodogbey,

(1999) (State failed to

prove knowing possession of a controlled substance where defendant was arrested after

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placing on a table the unopened package addressed to him and delivered to his home)),

double jeopardy does not preclude retrial and so we remand for that purpose.

¶ 49 CONCLUSION

¶ 50 The trial court erred in failing to quash the arrest and suppress the evidence obtained

in the search. Because the evidence was sufficient to sustain the conviction, we reverse and

remand for a new trial.

¶ 51 Reversed and remanded.

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