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People v. McCarty
State: Illinois
Court: 5th District Appellate
Docket No: 5-03-0475 Rel
Case Date: 03/22/2005

                    NOTICE
Decision filed 03/22/05.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-03-0475

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

            Plaintiff-Appellee,

v.

ROGER W. McCARTY,

            Defendant-Appellant.

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Appeal from the
Circuit Court of
Marion County.

No. 01-CF-404

Honorable
Patrick L. Duke,
Judge, presiding.


PRESIDING JUSTICE DONOVAN delivered the opinion of the court:

Following a stipulated bench trial in Marion County, Illinois, Roger McCarty (defendant) was convicted of unlawful manufacture of a controlled substance containing methamphetamine and possession with intent to deliver cannabis. He was sentenced to concurrent prison terms of 15 years on the manufacturing conviction and 5 years on the intent-to-deliver conviction. On appeal, defendant contends that (1) the search warrant was unconstitutional and the items seized should have been suppressed because the place to be searched and the items to be seized were not identified with particularity and because the scope of the warrant was too broad, (2) the Class X penalty provisions for unlawful manufacture of a controlled substance containing methamphetamine constitute unconstitutional disproportionate penalties, (3) his manufacturing conviction should be reduced to possession of a nominal amount of methamphetamine because the legislature did not intend to include the mass of incidental by-product or solvent within the definition of "substance containing methamphetamine", and (4) his conviction for possession of cannabis with intent to deliver should be reduced to simple possession because the State failed to prove the intent-to-distribute element beyond a reasonable doubt.

On December 20, 2001, Deputy Mark Rose, an officer in the Marion County sheriff's department, was on duty when he received a call from an unknown informant who claimed to have information about a methamphetamine lab and methamphetamine materials. The informant, accompanied by Deputy Rose, appeared before a judge and signed a complaint for a search warrant under oath. The judge issued a search warrant.

Deputy Rose, along with other sheriff's department officers, served the warrant that day. Defendant and his girlfriend, Jeanyne Reynolds, were inside the trailer when the officers arrived. They were detained during the search of the premises. The search yielded numerous items, including containers of suspected methamphetamine materials, six bottles of pseudoephedrine pills, cannabis seeds, miscellaneous lithium batteries, miscellaneous drug equipment, a set of electronic scales, a one-hitter pipe, a one-hitter box, six cans of Coleman fuel, gas masks, and a locked metal box containing $3,030 and approximately 30 grams of suspected cannabis.

Defendant and Jeanyne were arrested. On December 21, 2001, defendant was charged by information with three felonies. Count I alleged unlawful manufacture of less than five grams of a substance containing methamphetamine in violation of section 401(d) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d) (West 2000)), a Class 2 felony. Count II alleged unlawful possession of a methamphetamine chemical with intent to manufacture less than 15 grams of a substance containing methamphetamine in violation of section 401(d-5) of the Act (720 ILCS 570/401(d-5) (West 2000)), a Class 2 felony. Count III alleged unlawful possession with intent to deliver more than 30 grams but not more than 500 grams of a substance containing cannabis in violation of section 5(d) of the Cannabis Control Act (720 ILCS 550/5(d) (West 2000)), a Class 3 felony.

Subsequently, the methamphetamine-manufacturing counts were amended from Class 2 felonies to Class X felonies. Count I was amended to allege that defendant had knowingly and unlawfully manufactured more than 900 grams of a substance containing methamphetamine in violation of section 401(a)(6.5)(D) of the Act (720 ILCS 570/401(a)(6.5)(D) (West 2000)). Count II alleged that defendant had knowingly and unlawfully possessed with intent to manufacture more than 900 grams of a substance containing methamphetamine in violation of section 401(a)(6.5)(D). The range of punishment for these Class X felonies is 15 to 60 years' imprisonment.

Defendant filed a motion to suppress the evidence seized during the search of his girlfriend's trailer on December 20, 2001. Defendant argued that the fruits of the search should be suppressed because the search warrant failed to describe with particularity the premises to be searched and the items to be seized. Jeanyne Reynolds also filed a suppression motion.

The hearing on defendant's motion to suppress was consolidated with the hearing on Jeanyne Reynolds' motion. Deputy Rose was the first witness. Deputy Rose testified that he received a Crime Stoppers call on December 20, 2001. The caller indicated that he had information about a possible methamphetamine lab and materials for making methamphetamine. Deputy Rose met with the informant. He had not worked with the informant before. The informant indicated that he had been to defendant's trailer earlier that morning and saw defendant smoking methamphetamine. The informant also indicated that defendant had admitted to making methamphetamine at that location. The informant described the location of the trailer he had visited that morning as "McCarty's trailer located approximately

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