                       Illinois Official Reports

                               Appellate Court



                   People v. Harris, 2015 IL App (1st) 132162



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           AARON HARRIS, Defendant-Appellant.



District & No.    First District, Third Division
                  Docket No. 1-13-2162



Filed             June 17, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-3946; the
Review            Hon. Evelyn B. Clay, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Michael Gentithes, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                  Aaron R. Bond, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             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
¶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 FedEx 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 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.



                                                  -2-
¶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 FedEx 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 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.
¶ 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

                                                   -3-
       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.
¶ 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.
¶ 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.

                                                    -4-
¶ 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
       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, 222 Ill. 2d 530, 542 (2006); People v. Carlson, 185 Ill. 2d 546, 551 (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, 321 Ill. App. 3d 582, 588-89 (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 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, 547 U.S. 90, 97 (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”).



                                                   -5-
¶ 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, 381 Ill. App. 3d 397, 406 (2008);
       Carlson, 185 Ill. 2d at 549; 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, 547 U.S. at
       94. “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, 185 Ill. 2d at 554; see also People v.
       Galdine, 212 Ill. App. 3d 472, 481-82 (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, 547 U.S. at 96-97; accord United States v. Miggins, 302 F.3d 384, 395 (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, 188 F.3d 748, 757 (7th Cir. 1999). The purpose of defining a triggering 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, 998 F.2d 8, 12 (1st Cir. 1993); see
       also People v. Curry, 100 Ill. App. 3d 405, 410 (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 the 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, 547 U.S.
       at 96; Carlson, 185 Ill. 2d at 554. 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, 393 Ill. App. 3d 1074, 1079
       (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, 381 Ill. App. 3d 397
       (2008). In Bui, law enforcement intercepted a package containing narcotics that was addressed
       to the defendant at a nail salon. Id. at 402. Prior to seeking the warrant, officers determined the
       sender’s name and return address on the package were fictitious. Id. 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.’ ”


                                                    -6-
       Id. at 401. During their controlled delivery of the package, the officers watched as a nail salon
       employee signed for and placed the package under a counter. Id. at 402. Nearly four hours
       later, the defendant arrived at the nail salon, picked up the package and drove away. Id. The
       officers followed the defendant as he took the package with him into a new vehicle and then
       into a private residence. Id. Shortly thereafter, the electronic monitoring and filament device
       alerted the officers that the package had been opened, and the officers executed the warrant. Id.
       at 403. They entered the home, arrested the defendant, and discovered additional narcotics in
       the defendant’s bedroom where he had opened the package. Id.
¶ 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. Id. at 405-06. The State argued
       that the officers properly executed the search warrant at the defendant’s home. Id. at 409.
       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.
¶ 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. Id. 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.) Id. at 409-10. 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. Id. at
       410.
¶ 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 backseat 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 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,

                                                   -7-
       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, 998 F.2d at 12. As the foregoing hypotheticals illustrate, this interpretation of
       “accept” deprives the warrant of the particularity required to uphold its validity. See People v.
       Reed, 202 Ill. App. 3d 760, 763 (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 backseat 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 in executing the
       anticipatory search warrant and the evidence obtained as a result must be suppressed. See
       People v. McCauley, 163 Ill. 2d 414, 448 (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, 223 Ill. 2d 187, 219 (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, 381 Ill. App. 3d at 410 (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, 462 U.S. 213, 232-33, 238 (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”).
¶ 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


                                                   -8-
       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, 163 Ill. 2d at 448. 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, 468 U.S. 981, 987-88
       (1984); Bui, 381 Ill. App. 3d at 416-17. The Illinois Code of Criminal Procedure of 1963
       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 urge that the peace officer’s conduct was taken in
               a reasonable and objective 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 misrepresentation 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). 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, 202 Ill. App. 3d at 764 (citing United States v.
       Leon, 468 U.S. 897, 923 (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, 393 Ill. App. 3d at 1079 (the good-faith exception did not apply because officers
       knew of ambiguity in the warrant before its execution); see also Jones v. Wilhelm, 425 F.3d
       455, 463 (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 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


                                                   -9-
       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, 229 Ill. 2d 322, 367 (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.”
       Id. (citing People v. Mink, 141 Ill. 2d 163, 173-74 (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, 164 Ill. 2d 382, 393
                (1995) (citing Lockhart v. Nelson, 488 U.S. 33, 40 (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, 212 Ill.
       2d 274, 278 (2004); People v. Butler, 304 Ill. App. 3d 750, 755 (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.
¶ 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, 2013 IL App (1st) 112552, ¶ 19 (State could not prevail on retrial without
       drugs recovered from defendant’s pocket in warrantless search unsupported by probable
       cause); People v. Leigh, 341 Ill. App. 3d 492, 497 (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, 314 Ill. App. 3d 187, 193 (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, 2012 IL 112370,
       ¶ 17 (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 delicti 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, 306 Ill. App. 3d 555 (1999) (State failed to prove
       knowing possession of a controlled substance where defendant was arrested after placing on a
       table the unopened package addressed to him and delivered to his home)), double jeopardy


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       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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