                                    2015 IL App (1st) 131011
                                         No. 1-13-1011
                                         March 31, 2015
                          Modified Upon Denial of Rehearing May 12, 2015

                                                                               SECOND DIVISION


                                               IN THE

                                APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
                                          )                Of Cook County.
               Plaintiff-Appellee,        )
                                          )
               v.                         )                No. 06 CR 16029
                                          )
     DARVEN MARION,                       )                The Honorable
                                          )                Charles P. Burns,
               Defendant-Appellant.       )                Judge Presiding.



                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Presiding Justice Simon and Justice Liu concurred in the judgment and opinion.


                                            OPINION

¶1        This case comes before the appellate court for a third time. A grand jury charged

       defendant, Darven Marion, with possession of cocaine and cannabis. Marion moved to

       dismiss the indictments based on allegations that a police officer promised that the State

       would not arrest him for the narcotics offenses if Marion helped police with crime prevention

       efforts. The trial court denied Marion’s motion to dismiss the indictments and, in a bench

       trial, found Marion guilty of possessing cocaine and cannabis. On appeal, Marion argued

       that the court erred when it denied his motion to dismiss the indictments. We vacated the
     No. 1-13-1011


        convictions and remanded for completion of the hearing on Marion's motion to dismiss.

        People v. Marion, No. 1-08-2465 (2010) (unpublished order under Supreme Court Rule 23).

¶2         At the hearing on remand, the judge, who had not presided at the initial hearing on the

        motion to dismiss, read the transcripts from that hearing and found that Marion did not testify

        credibly. The judge reinstated the convictions. On the second appeal, we found nothing

        inherently incredible about Marion's testimony. We reversed and remanded a second time

        for completion of the hearing on Marion's motion to dismiss the indictments. People v.

        Marion, 2012 IL App (1st) 082465-U.

¶3         At the hearing on the second remand, prosecutors presented the testimony of a police

        officer who said police never promised Marion anything at all for the help he provided. The

        trial judge found the officer credible and therefore held that Marion failed to prove an

        enforceable agreement with police. The judge additionally held that even if Marion had

        testified truthfully, police lacked authority to promise not to arrest a suspect in exchange for

        help with police work. The judge denied Marion's motion to dismiss the indictments and

        reinstated the convictions.

¶4         On this third appeal, we reject the trial court's credibility determination. We also hold

        that police have authority to agree not to arrest a suspect in exchange for cooperation with

        police work. Accordingly, we reverse the trial court's judgment.

¶5                                          BACKGROUND

¶6         Police arrested Marion on June 21, 2006, charging him with possession of more than 15

        grams of cocaine and more than 30 grams of cannabis. A grand jury later indicted Marion

        for possession of cocaine and cannabis with intent to deliver. Marion moved to dismiss the

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          indictments based on an agreement he allegedly reached with some of the officers involved

          in his arrest.

¶7                                        The Evidentiary Hearing

¶8            The trial court held an evidentiary hearing on the motion to dismiss the indictments.

          Marion testified that shortly after midnight on June 21, 2006, seven or eight police officers

          approached him as he stood outside his car, near the intersection of Harrison and Kolmar,

          talking to John Herndon and another friend. According to Marion, some officers took the

          keys from his car and left the scene. A half hour later, a call came in to one of the officers

          who had stayed with Marion. The officers at the scene handcuffed Marion and Herndon and

          drove them in a police car to an address a few blocks away, where Marion used an apartment

          to store his furniture and to stay overnight sometimes. Officers came out of that building

          with some bags, which they claimed held drugs they found in the apartment Marion used.

          The officers then removed from Marion’s back pocket about $7,000 in cash. Marion testified

          that he had just finished gambling.

¶9            According to Marion’s testimony, some of the officers then drove him back to his car.

          One of the officers asked Marion, “[Y]ou want to help yourself in this case?” Marion said

          yes. The officer said, “[Y]ou got some guns?” Marion said he had none, but he knew how to

          get some. Marion testified that the officer said, “[Y]ou give me some guns, you can leave

          with your money and we won’t even pursue this case.”

¶ 10          Marion testified that he then placed a few calls on his cell phone. The persons he called

          delivered guns to nearby locations, as Marion requested. Marion directed officers to an

          address near Van Buren and Kolmar, where they recovered two guns, and to Harrison and

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          Kilbourn, where they recovered a third gun. Marion admitted that he did not remember the

          name of the officer who made the promise.

¶ 11          Marion called as a witness Officer Joe Ferenzi, who wrote a report concerning Marion’s

          arrest.   Ferenzi confirmed that other officers recovered three guns, within an hour of

          Marion’s arrest, based on information the officers learned from Marion. Marion then rested

          on his motion to dismiss the indictments.

¶ 12          Before the State began to present evidence on the motion, the trial court denied the

          motion to dismiss the indictments because the State had not yet filed charges against Marion

          at the time the officer offered not to pursue charges in exchange for the information Marion

          provided. In the course of making the ruling, the court noted, "I certainly believe from

          Officer Ferenzi’s testimony and combined with your client’s testimony that he did give

          information."

¶ 13          A different judge presided at the bench trial. The trial court found Marion guilty of

          possessing more than 30 grams of cannabis and more than 15 grams of cocaine. Because of

          Marion's prior convictions for armed robbery and unlawful use of a weapon by a felon, the

          trial court sentenced Marion to five years for possession of cocaine and three years for

          possession of cannabis, with the sentences to run concurrently.

¶ 14                                              Appeal

¶ 15          On appeal, this court held that a suspect and the State could enter into an enforceable

          cooperation-immunity agreement before the filing of formal charges. Marion, No. 1-08-

          2465. We remanded for completion of the hearing on Marion's motion to dismiss the

          indictments.

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¶ 16                                   Remand and Second Appeal

¶ 17         On remand, Marion presented a transcript of the testimony he gave at the hearing on his

          motion to dismiss the indictments. The judge on remand, who had not presided at the

          original hearing on the motion to dismiss, read the transcript and found Marion's testimony

          not credible. The judge denied Marion's motion to dismiss the indictments.

¶ 18         On the second appeal, this court noted first that because the trial court based its findings

          solely on documents which this court could read just as well as the trial judge, the de novo

          standard of review applied. See Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154

          (2007); Addison Insurance Co. v. Fay, 232 Ill. 2d 446, 453 (2009). This court found nothing

          inherently incredible about Marion's testimony.       We remanded to the trial court for

          completion of the hearing on Marion's motion to dismiss the indictments. We specified that

          the State could either (1) argue that police lacked authority to make the promise to which

          Marion testified, or (2) present evidence to contradict Marion's testimony that police made a

          promise. We said that if the State chose to contradict Marion's testimony, the State would

          "need to present testimony that explains Marion's decision to give the police information

          leading to the discovery of three guns without hearing from the police anything that led him

          to expect favorable treatment in exchange for the information." People v. Marion, 2012 IL

          App (1st) 082465-U, ¶ 27.

¶ 19                                    Hearing on Second Remand

¶ 20         On the second remand, the State presented Officer Ferenzi as its sole witness. Ferenzi

          testified that on June 21, 2006, he stayed with Marion from the time police stopped him until

          he left the custody of the Chicago police department and that Marion had no opportunity to

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          speak with other police officers outside of Ferenzi's presence. No officer other than Ferenzi

          discussed any deal with Marion. Ferenzi said that Marion initiated a discussion with Ferenzi

          by saying that he "wanted to try to work out something so he wouldn't get arrested for the

          narcotics." According to Ferenzi, Marion said that he "could possibly get some rifles if he

          could get out of the arrest." Ferenzi answered that if Marion delivered rifles to the police,

          Ferenzi "would talk to the State's Attorney and see if they could be more lenient with the case

          against him." Ferenzi swore that he did not promise not to arrest Marion for the narcotics.

          Ferenzi emphasized that Marion specifically offered to produce rifles, not handguns, and the

          difference mattered to Ferenzi because he considered rifles more dangerous.

¶ 21         Ferenzi admitted that Marion made phone calls and then directed police officers to two

          specific locations where the officers found a total of three handguns, but no rifles. Ferenzi

          added that at the second location, along with handguns, officers found $200 in cash. Because

          Marion never produced any rifles, Ferenzi did not talk to the State's Attorney about treating

          Marion leniently. On cross-examination, Ferenzi admitted that in his arrest report, he did not

          mention any discussion about rifles.

¶ 22         The State argued both that Ferenzi had credibly refuted Marion's testimony and that

          police lacked authority to make the promise Marion said they made. The trial judge agreed

          with both arguments. The judge specifically found Ferenzi "very credible." The judge said

          Ferenzi "would be more concerned with rifles *** and *** the idea of providing information

          came from the defendant, it did not come from the officer." The judge added:

               "But even if the Appellate Court tells me I was wrong after making all of the

               credibility determinations here, I do not believe that a promise was, in fact, made

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               for this particular defendant to give information on an unrelated case or non related

               investigation in exchange for him being not charged in this matter.

                       Since I don't believe that the testimony of the defendant is credible in light of

               all the circumstances in this matter, I don't believe the Petitioner has met [his]

               burden in the matter."

¶ 23         The trial judge found that police promised nothing in exchange for Marion's help finding

          handguns and getting them safely off the street. The court denied the motion to dismiss the

          indictments. Marion again appeals.

¶ 24                                              ANALYSIS

¶ 25         The trial judge based his decision on both a finding of fact and a legal ruling. We review

          the legal ruling de novo, and we review the finding of fact to determine whether it is against

          the manifest weight of the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).

¶ 26                                       Credibility Determination

¶ 27         "The finding of the trial judge as to the credibility of the witnesses is entitled to great

          weight. However, we cannot, in every case, accept the trial judge's finding as conclusive ***.

          *** Where the State's evidence is improbable, unconvincing and contrary to human

          experience, we have not hesitated to reverse the judgments of conviction."              People v.

          Dawson, 22 Ill. 2d 260, 264-65 (1961); see People v. Coulson, 13 Ill. 2d 290, 296-97 (1958).

¶ 28         Ferenzi testified that Marion, with no prior discussion with police and no direction from

          Ferenzi, spontaneously offered to produce rifles in exchange for an agreement not to arrest

          him for narcotics possession.        While Ferenzi and the trial judge both explained the



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          importance of rifles, they offered no explanation for how Marion would know, before any

          discussion, that Ferenzi would consider a deal for rifles but not for handguns. Marion's

          spontaneous offer makes no sense at all when Marion can produce only handguns, not rifles.

          Ferenzi and Marion both testified that Marion made only a few phone calls before telling

          police where to find the handguns. Ferenzi did not testify that Marion tried to negotiate any

          further when he could produce only handguns. Production of the handguns left Marion

          vulnerable to a charge of unlawful use of a weapon by a felon. See People v. McCarter, 339

          Ill. App. 3d 876, 879-80 (2003); 720 ILCS 5/24-1.1 (West 2006). Ferenzi's testimony makes

          Marion's behavior improbable, incomprehensible, and contrary to human nature. We find

          that the State failed to present credible evidence to "explain[] Marion's decision to give the

          police information leading to the discovery of three guns without hearing from the police

          anything that led him to expect favorable treatment in exchange for the information."

          Marion, 2012 IL App (1st) 082465-U, ¶ 27. The trial court's finding that Marion initiated a

          conversation with police, spontaneously offering to produce rifles, and agreeing to exchange

          the rifles for a good word from police, when he could not produce rifles, is contrary to the

          manifest weight of the evidence.

¶ 29         Marion's testimony, on the other hand, credibly explains his decision to direct officers to

          the location of three handguns, even though he knew his ability to produce the guns left him

          vulnerable to prosecution for unlawful use of a weapon by a felon. Because Marion's credible

          testimony stands uncontradicted by any credible testimony, we find that a police officer said

          to Marion, “[Y]ou give me some guns, you can leave with your money and we won’t even

          pursue this case.” Marion's credible testimony shows that an officer promised that police

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          would not pursue charges against Marion if Marion gave them information that led them to

          some guns and helped get the guns off the street.

¶ 30                                     Enforceability of Promise

¶ 31         The trial judge also accepted the State's argument that the court cannot enforce the police

          officer's promise because police lack authority to promise not to arrest and charge a suspect

          in exchange for the suspect's cooperation with other police work.         We apply contract

          principles to determine the enforceability of the police officer's promise. United States v.

          Aleman, 286 F.3d 86, 89-90 (2d Cir. 2002); United States v. Carrillo, 709 F.2d 35, 36 (9th

          Cir. 1983). The officer made an offer, which Marion accepted by actually producing guns as

          the officer requested. The guns supply consideration for the promise. Thus, the court should

          enforce the promise unless the officer lacked authority to make the promise. See Mannion v.

          Stallings & Co., 204 Ill. App. 3d 179, 186 (1990); Suess v. United States, 535 F.3d 1348,

          1359 (Fed. Cir. 2008).

¶ 32         Police officers have discretion to decide how "to handle violations in the field, without

          the involvement of the State's Attorney." People v. Hammond, 2011 IL 110044, ¶ 65.

          "[W]hen a police officer issues a warning in lieu of a uniform citation, he is exercising his

          discretion not to enforce the traffic law." Hammond, 2011 IL 110044, ¶ 65; 725 ILCS 5/107-

          2(1)(c) (West 2006). If an officer sees a person apparently violating a criminal law, the

          officer "has discretion to arrest a person 'immediately, later, or perhaps never.' " People v.

          Geier, 407 Ill. App. 3d 553, 560, (2011) (quoting People v. Shepherd, 242 Ill. App. 3d 24, 29

          (1993)); 725 ILCS 5/107-2(1)(c) (West 2006); also see Town of Castle Rock, Colorado v.



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          Gonzales, 545 U.S. 748, 760-61 (2005) ("A well established tradition of police discretion has

          long coexisted with apparently mandatory arrest statutes.").

¶ 33         Police officers also have authority to "seek the voluntary cooperation of members of the

          public in the investigation of a crime." Illinois v. Lidster, 540 U.S. 419, 425 (2004). The

          Lidster court said that a " '[l]aw enforcement officer may *** request any person to furnish

          information or otherwise cooperate in the investigation or prevention of crime.' " Lidster,

          540 U.S. at 425 (quoting ALI, Model Code of Pre-Arraignment Procedure § 110.1(1)

          (1975)).

¶ 34         We find that police officers have authority to combine these two aspects of the powers

          delegated to them. An officer can agree not to arrest a suspect – not to initiate the process of

          bringing a criminal charge – in exchange for the suspect's cooperation in the investigation or

          prevention of crime. Hammond, 2011 IL 110044, ¶ 65; Lidster, 540 U.S. at 425. The State

          gave the police officer who spoke to Marion authority to agree not to arrest Marion in

          exchange for Marion's cooperation with getting guns off the street.

¶ 35         In People v. Fournier, 909 N.Y.S.2d 813 (N.Y. App. Div. 2010), the defendant

          cooperated with police before the State filed charges against him. The Fournier court

          explained:

                       "Facing a possible felony charge for possessing cocaine, defendant entered

               into a cooperation agreement with law enforcement officials. Some terms of the

               agreement were set forth in writing and others were agreed to verbally. Defendant

               wore a wire during a drug transaction and also supplied reliable information. His

               efforts resulted in the arrest of two other individuals. Law enforcement officials

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               nevertheless determined that he had not fully complied with the agreement and,

               thus, he was indicted for criminal possession of a controlled substance in the third

               degree. Defendant moved to dismiss the indictment ***.

                       *** Defendant testified that he was told by police that he was required to

               make two or three felony drug purchases and, when he requested this condition be

               put in writing, the police refused. He thus allegedly recorded a conversation with

               police regarding these terms of the agreement, and it is undisputed that the police

               confiscated that recording from defendant and destroyed it. *** Defendant

               maintained that he was informed by law enforcement officials that his assistance in

               the arrest of the significant drug dealer resulted in the total fulfillment of his

               obligation." Fournier, 909 N.Y.S.2d at 814.

¶ 36         The Fournier court found that the defendant showed that he fulfilled the terms of the

          agreement, and therefore the court affirmed the dismissal of the indictment. Similarly, in

          People v. Smith, 233 Ill. App. 3d 342, 351 (1992), the court held that cooperation agreements

          become enforceable once the State has received the benefit of its bargain.

¶ 37         The trial court here, holding to the contrary, relied on United States v. Flemmi, 225 F.3d

          78 (1st Cir. 2000). In Flemmi, a federal agent promised that if Flemmi helped him place an

          electronic listening device in a useful location, prosecutors would not use against Flemmi any

          evidence obtained from the device. The agent had no authority to offer use immunity,

          thereby limiting the prosecutor's use of evidence obtained from the listening device. Here,

          on the other hand, no occurrence or potential charge had come to the attention of a prosecutor

          at the time the police officer made his promise. Even if the police officer here could not

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          offer use immunity, the officer had discretion not to arrest Marion and report the narcotics,

          just as police can decide not to arrest persons seen violating other criminal laws. Gonzales,

          545 U.S. at 760-61; Hammond, 2011 IL 110044, ¶ 65; Geier, 407 Ill. App. 3d at 560. As we

          said in the second appeal in this case, "Police probably should consider gun violence a

          greater threat to the community than possession of moderate amounts of narcotics. See

          People v. Jones, 357 Ill. App. 3d 684, 690 (2005). A conscientious police officer could

          choose not to pursue narcotics charges against a suspect in exchange for information that

          helps police get several illegally held guns off the streets." People v. Marion, 2012 IL App

          (1st) 082465-U, ¶ 23.

¶ 38         We hold that the State has vested police officers with discretionary authority to decide

          whether or not to arrest persons apparently violating criminal laws, and to decide whether or

          not to report the apparent violations. Hammond, 2011 IL 110044, ¶ 65; Gonzales, 545 U.S. at

          760-61. Police also have authority to promise not to arrest an individual and report an

          apparently criminal act in exchange for cooperation in the investigation or prevention of

          crime. Hammond, 2011 IL 110044, ¶ 65; Lidster, 540 U.S. at 425. Marion credibly testified

          that police offered not to arrest him for narcotics possession in exchange for help finding

          guns and getting the guns off the street. The State presented no credible testimony to refute

          Marion's testimony concerning the agreement. With the permission of police, Marion made

          phone calls that produced three handguns, thereby fulfilling his part of the bargain. “[T]o

          allow the government to receive the benefit of its bargain without providing the reciprocal

          benefit contracted for by the defendant would do more than violate the private contractual

          rights of the parties -- it would offend all notions of fairness in the related criminal

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          proceedings, which are protected by constitutional due process.” Commonwealth v. Sluss,

          419 S.E.2d 263, 265 (Va. Ct. App. 1992).

¶ 39         We hold that Marion proved an enforceable agreement not to arrest him in exchange for

          producing handguns. We reverse the trial court's judgment and vacate the convictions.

          Because we find police had actual authority to promise not to arrest Marion in exchange for

          his cooperation, we need not address Marion's argument about the officer's apparent

          authority.

¶ 40                                      Petition for Rehearing

¶ 41         In a petition for rehearing, the State argues that Ferenzi's testimony that officers

          discovered $200 with the guns makes his testimony credible and explains all of Marion's

          behavior.    We do not see how the testimony about the cash explains why Marion

          spontaneously offered to produce rifles when he could not produce rifles. Ferenzi did not

          testify that police officers and criminals use a code in which an offer to produce "rifles"

          means an offer of a cash bribe. Compare United States v. Maloney, 71 F.3d 645, 651 (7th

          Cir. 1995) (judge said he needed to give books back to defense counsel, meaning he needed

          to return bribe money). The testimony about the cash, if believed, only supports a conclusion

          that Marion, or the person he called, thought police officers might take a bribe. See Edward

          E. Shev & Jeremy Joan Hewes, Good Cops, Bad Cops: Memoirs of a Police Psychiatrist

          (1977); Francis L. McCafferty & Margaret A. McCafferty, Corruption in Law Enforcement:

          A Paradigm of Occupational Stress and Deviancy, 26 J. Am. Acad. Psychiatry Law 57, 59

          (1998); United States v. Shamah, 624 F.3d 449, 452-57 (7th Cir. 2010); United States v.

          Haynes, 582 F.3d 686, 692-93 (7th Cir. 2009). But Ferenzi admitted that Marion had more

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          than $1,600 in cash when police arrested him. Marion testified that he had $7,000 in cash.

          In either case, Marion had ample funds to use for bribery without the ruse of offering

          handguns or rifles. Ferenzi's testimony about the discovery of $200 does not improve the

          credibility of his testimony that Marion spontaneously offered to produce rifles when he

          could not produce rifles, and gave police handguns with no promise of anything in return.

¶ 42         The trial judge implicitly acknowledged his doubts about Ferenzi's credibility, as he

          finally rested his ruling not on Ferenzi's testimony, but on his belief that Marion lied on the

          witness stand. The trial judge did not hear Marion testify. The judge based his assessment of

          Marion's credibility solely on the transcript of that testimony. As we held in our prior order

          in this case, nothing in the transcript of Marion's testimony warrants the rejection of that

          testimony as inherently incredible. People v. Marion, 2012 IL App (1st) 082465-U. We find

          that Officer Ferenzi's highly implausible testimony, that Marion spontaneously offered to

          produce rifles, when he could produce handguns but not rifles, and that he never sought any

          deal for producing handguns, but just gave them to police, cannot provide a basis for finding

          that police made no promise to Marion. On denial of the petition for rehearing, we reassert

          that the trial judge's findings (1) that Ferenzi testified credibly, and (2) that Marion gave the

          police handguns when police made no promise at all for any favorable treatment in exchange

          for the handguns are against the manifest weight of the evidence.

¶ 43         In the petition for rehearing, the State also argues that prosecutors and not police officers

          have authority to decide whether to charge a citizen. But police have authority to decide

          whether to arrest a person, and here the evidence shows that police reneged on a promise not

          to arrest Marion in exchange for the production of handguns. The State's failure to keep its

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          promise, made by officers invested with authority to make that promise, requires the court to

          take the steps necessary to enforce the State's promise. Because the charges followed as a

          consequence of the arrest, we must dismiss the charges.

¶ 44                                          CONCLUSION

¶ 45         Although this court defers to the trial court's findings of fact, where those findings are

          "improbable, unconvincing and contrary to human experience," we must reject those

          findings. Dawson, 22 Ill. 2d at 265. Here, the State's sole witness testified that without any

          prompting from police, Marion spontaneously offered to produce rifles for the police to take

          off the street, when Marion could produce only handguns, not rifles. Because the State failed

          to offer any credible rebuttal to Marion's credible testimony, we find that Marion sufficiently

          proved that he produced the guns in response to a police officer's promise not to arrest him in

          exchange for getting guns off the street, thereby helping investigate and prevent crime. We

          also find that police have authority to agree not to arrest a suspect in exchange for his

          cooperation with investigating or preventing crime. We find the officer's agreement with

          Marion enforceable. Because Marion fulfilled his part of the bargain, the officer had a duty

          not to arrest Marion and not to start the process that led to the charges filed against him.

          Accordingly, we reverse the trial court's judgment and vacate Marion's convictions.

¶ 46         Reversed; convictions vacated.




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