dissenting:
I respectfully dissent and would reverse the defendant’s convictions.
We are presented with prosecution testimony which “taxes the gullibility of the credulous” and therefore cannot support a criminal conviction. People v. Wright, 147 Ill. App. 3d 302, 318, 497 N.E.2d 1261, 1271 (1986). The trial court should have granted the defendant’s motions to quash his arrest, excluded the evidence seized, and suppressed the defendant’s alleged statements. It is axiomatic that upon review of a criminal conviction, great deference is afforded to the credibility findings of the trier of fact. We must affirm a conviction challenged as based on insufficient evidence or incredible testimony if any rational trier of fact, looking at that testimony and evidence, could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999). However, a reviewing court also has the solemn duty to reverse a conviction where the evidence is insufficient to prove the defendant guilty beyond a reasonable doubt. Smith, 185 Ill. 2d at 541, 708 N.E.2d at 369. Where, as in this case, the State’s main witness has been impeached as to a critical element of his testimony, coupled with his incredible testimony regarding how the drugs came to be discovered in the defendant’s car, the issue of reasonable doubt is raised. “While due weight must be given to the trier of fact as to the credibility of *** witnesses, ‘it is our duty to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt ***.’ ” People v. Morgan, 69 Ill. 2d 200, 206-07, 370 N.E.2d 1063, 1066 (1977), quoting People v. Nunes, 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707 (1964).
In the case at hand, unlike the majority, I do not believe that we can or should say that the evidence presented by the State was sufficient to remove all reasonable doubt as to the propriety of the police conduct and therefore the defendant’s guilt. People v. Mathis, 133 Ill. App. 3d 1027, 1039-40, 479 N.E.2d 966, 978 (1985). The police officer who stopped the defendant’s car claimed that he did so for lane change violations. But by his own admission he never mentioned these violations to the defendant. Instead, he told the defendant he was the subject of a drug investigation. The police officer claimed that immediately upon hearing this statement, the defendant abandoned all caution and common sense and admitted that he had just received a box of drugs and pointed to a box on his backseat. Because I find the testimony of the arresting police officer in this case to be fantastic and incredible, I would find no basis for the stop of the defendant. This in turn would require suppression of his statement to the police and the evidence recovered from his vehicle, necessitating reversal of his conviction. I therefore would not reach the issue of whether the police stop was unlawfully extended.
The State asserts that the police officers who stopped the defendant’s car had a reasonable suspicion that the defendant was transporting illegal drugs which he had just obtained from a home where according to a reliable informant, a shipment of cocaine had been received one or two days earlier. I concur with the majority’s determination that the police had insufficient cause for a stop on this basis. The arresting police officer knew that another police officer had seen the defendant stop at the home on South Trumbull Avenue and receive from an occupant of the home, a plastic bag which appeared to contain a square box. The defendant then drove away in his car. The arresting police officer acknowledged that his police report erroneously stated that the defendant was seen carrying a Mr. Coffee box from the house on South Trumbull. Despite what the State asserts was ample cause to stop the defendant’s car, the police officers, who were several blocks away from the residence when they saw the defendant’s car, chose to follow him rather than immediately stop him. They followed him for one hour, in rush hour traffic, ultimately using seven police vehicles.
When they did stop the defendant one hour later, on the Kennedy Expressway, it was allegedly because 12 blocks earlier a police officer had observed the defendant making two lane changes without using his turn indicator. If true, this would have supported a stop of the vehicle for a traffic violation. But the arresting police officer’s report of the incident did not mention any lane change violations. The arresting police officer admitted that when he walked up to the defendant’s car after it was stopped, he made no mention to the defendant of any traffic violation whatsoever, nor did he ask the defendant for his driver’s license, insurance card, vehicle registration, or any other identification customarily requested during a traffic stop. Instead, he immediately told the defendant that, as part of a narcotics investigation, the defendant had been seen accepting a “box” from a residence. The police officer asserted this even though he had previously admitted that he was told only that the defendant had received a “bag” which appeared to contain a box. The defendant then allegedly spontaneously volunteered that he was transporting drugs which he had received from a man named Carlos at the house on South Trumbull. He also allegedly told the arresting police officer that his passenger was not involved in that drug transaction. Based upon this stunning, spontaneous admission, the police seized a Mr. Coffee box from the backseat of the defendant’s car, found it to contain 5,118 grams of apparent cocaine in 10 bags, and arrested the defendant and also took his companion into custody. No citation was ever issued to the defendant for the two traffic violations for which the police officers testified they had stopped him in the first place. In fact the only mention of any traffic violation came much later, first appearing at the hearing on the defendant’s motion to suppress.
The testimony of the defendant and his companion at the hearing on the motion to suppress the defendant’s statements differed significantly from that of the police. The defendant and his companion testified that he was stopped by the police without having committed any traffic violations. The companion testified that she did not observe the defendant changing lanes without using his signal. When the police stopped the defendant, two police officers immediately approached the car and one of them took the defendant out of his car and handcuffed him without saying a word to him. The defendant had not spoken to them at that point. The defendant’s companion also got out of the car and was handcuffed. Without any conversation with the defendant, the police searched the car and removed a bag from it. If true, this version of the events would necessitate suppression.
The majority defers entirely to the trial court’s credibility determinations. As I have noted, although great deference is to be afforded to such findings, we as a reviewing court are not to act as a rubber stamp, agreeing in all instances with the findings of the trial court no matter how patently improbable the testimony. The facts presented by this case give new meaning to testimony that “taxes the gullibility of the credulous” as described in Wright. It is significant that the trial judge could have convicted the defendant of the charged offense of possession of cocaine with intent to deliver. He was found to be in possession of 5,118 grams of a substance of which 995.3 grams were tested and found to be cocaine. But the trial judge convicted him only of the lesser included offense of possession of a controlled substance and sentenced him to the minimum prison term permitted by law. Even considering that the defendant had no prior convictions, these are not indications of a strong belief in the State’s case. Again, we as a reviewing court have a duty to examine the totality of the facts and circumstances presented as evidence and to reverse a conviction if the evidence is insufficient to remove all reasonable doubt of the defendant’s guilt.
I find that the testimony of the arresting police officer was grossly improbable and incredible as to the basis for the stop, the subsequent events, and the defendant’s spontaneous confession immediately upon being stopped. Because the entirety of the State’s case was based upon that evidence, the defendant’s conviction should be reversed.