Defendant, Adam Rosenberg, was charged with controlledsubstance trafficking. His motion to suppress evidence was denied,and he was found guilty. We vacate the trial judge's order on themotion to suppress, remand for a new hearing on the motion andretain jurisdiction to determine the remaining substantive issuesshould the State prevail at the new hearing.

Rosenberg paid David Belmonte $9,000 to drive from San Diego,California to Boston, Massachusetts with twenty-eight cases ofketamine, a controlled substance, in the trunk of a car thatRosenberg rented.

While traveling through Illinois with the ketamine, Belmontewas stopped in LaSalle County for following another vehicle tooclosely. After giving Belmonte a warning, the state troopers whostopped him requested permission to search the vehicle. Belmonteconsented. However, he told the troopers that he did not have akey to the trunk and the automatic trunk release did not work.

In order to gain access to the trunk, the troopers removed theback seat of the vehicle. They found a box in the trunk, slit itopen and removed a vial of ketamine. The troopers then placedBelmonte under arrest, and Belmonte then offered them a key to thetrunk, where they discovered the rest of the ketamine.

After several weeks in custody, Belmonte began to cooperatewith authorities and revealed Rosenberg's part in the crime. Belmonte was given use immunity to testify against Rosenberg at agrand jury proceeding where Rosenberg was charged with controlledsubstance trafficking.

Prior to his trial, Rosenberg filed a motion to suppress theevidence against him. He subpoenaed Belmonte to testify at thehearing on the motion. The State refused to grant Belmonteimmunity for the hearing. Therefore, Belmonte refused to testify.

At Rosenberg's trial, the State again granted Belmonte useimmunity. Based in large part on Belmonte's testimony, Rosenbergwas convicted and sentenced to eighteen years of incarceration.

On appeal, Rosenberg argues that 1) he was denied due processbecause the State refused to grant immunity to Belmonte to testifyat the suppression hearing; 2) the court erred by denying hismotion to suppress; 3) his conduct could not constitute traffickingwithin the meaning of the statute; and 4) the penalty provisionsfor bringing a controlled substance into Illinois with the intentto distribute it in another state are unconstitutionallydisproportionate.

Rosenberg argues that he was denied due process because theState granted Belmonte use immunity before the grand jury and attrial, but denied him immunity at the suppression hearing.

Generally, decisions to grant immunity to a witness are leftup to the prosecutor. See People v. Foster, 119 Ill. 2d 69 (2000). However, several federal courts have held that there are rareexceptions to this rule. These courts have reasoned that a failureto grant immunity violates due process where the government usesits powers to distort the fact finding process by causing a defensewitness to invoke the fifth amendment or by refusing immunity to awitness who would directly contradict the government's witnesses. See, e.g., U.S. v. Whitehead, 200 F.3d 634, 640 (2000); U.S. v.Duran, 189 F.3d 1071, 1087 (1999); U.S. v. Westerdahl, 945 F.3d1083, 1086 (1991). Though we are not bound to follow these courts,we find their reasoning persuasive. See Benjamin v. Board ofElection Commissioners, 122 Ill. App. 3d 693, 697 (1984) (statingthat though we are not bound to follow decisions of federal courts,we give them the weight merited by the persuasiveness of theirreasoning).

In certain cases, it is possible for the State to abuse itspower to grant immunity in such a way that a defendant will find itdifficult, if not impossible, to effectively and meaningfullydefend against the State's case. See Whitehead, 200 F.3d 634. Webelieve that this case is one of the narrow exceptions to thegeneral rule. Here, the State granted use immunity to Belmontewhen his testimony would be necessary to establish the case againstRosenberg, but refused to do so when it may have been helpful toRosenberg. By this discriminatory application of its powers, theState caused Belmonte to invoke his fifth amendment right not totestify at the suppression hearing, frustrating Rosenberg's attemptto garner necessary facts. Belmonte was the only witness who couldhave helped Rosenberg establish standing to challenge the search.

The State's actions impermissibly distorted the fact findingprocess in this case and denied Rosenberg his due process right tofully and meaningfully present his defense. In order to protectRosenberg's right to a fair trial, the State should have grantedBelmonte use immunity for the purposes of the hearing on the motionto suppress.

Even so, the State insists that its refusal to grant immunityfor the hearing did not harm Rosenberg for two reasons. First, theState contends that Rosenberg would not have had standing tochallenge the search in any case. The question of a defendant'sstanding to challenge a search depends upon whether the accused hada reasonable expectation of privacy in the area searched, and mustbe determined on a case-by-case adjudication of the accused'sinterest in and relation to the property that was the subject ofthe search and seizure. People v. Becktel, 137 Ill. App. 3d 810,815 (1985). Factors to consider in determining whether the accusedhas a reasonable expectation of privacy include 1) ownership of theproperty searched; 2) defendant's presence at the time of thesearch; 3) defendant's possessory interest in the property seized;4) prior use of the property seized or the area searched; 5)ability to exclude others' use of the property; and, 6) asubjective expectation of privacy in the property. People v.Johnson, 114 Ill. 2d 170, 191-92 (1986).

Had Rosenberg been able to obtain testimony from Belmonte atthe hearing, he might have been able to present evidence on severalof these factors. Belmonte may have assisted Rosenberg inestablishing Rosenberg's interest in the property seized, hisrelationship to the area searched and his efforts to exclude othersfrom the property seized. Thus, without Belmonte's testimony, thetrial court could not have had sufficient evidence to determine ifRosenberg had standing to challenge the search. The error was notharmless.

Second, the State argues that Rosenberg had the opportunity todevelop relevant testimony from Belmonte at trial and could thenhave reopened the motion to suppress. However, we believe thisoption did not provide Rosenberg sufficient due process protection.

Motions to suppress and criminal trials are two very differentfora with very different goals. Often, evidence needed toestablish standing to challenge a search would be damaging to adefendant at trial. Rosenberg would have chosen to seeksignificantly different testimony from Belmonte at the hearing thanhe wished to present at trial. For instance, Rosenberg wasinterested in showing his ownership of the ketamine as a factorestablishing his standing to challenge its seizure, but he surelywould not wish to emphasize that fact at trial. RequiringRosenberg to choose between either defending himself on the meritsor eliciting damaging testimony that may have assisted him in arenewed motion does not cure the due process violation.

The trial judge's order denying the motion to suppress isvacated, and the case is remanded for a new hearing on the motion. Because this new hearing may determine the outcome of the case, wedecline to consider Rosenberg's other claims at this time. However, we retain jurisdiction to determine these claims shouldthe State prevail at the new hearing on the motion to suppress.

The order of the circuit court of LaSalle County is vacated,and the case is remanded for further proceedings.

Order vacated and remanded.

McDADE, P.J., and HOLDRIDGE, J., concur.