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People v. Borges





APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. MORAN, Judge, presiding.


Rehearing denied October 17, 1980.

Defendants, Eugenio Borges and Carmelo Flores, were each charged in two counts with the unlawful possession and delivery of heroin. After a trial without a jury, defendants were found guilty of both offenses. Borges was sentenced to a term of 12 years; Flores was sentenced to 10 years. Defendants contend on appeal that the court erred in denying their motion to suppress the evidence, that the State wrongfully spoiled evidence, and that they were not proved guilty beyond a reasonable doubt. In addition, Flores contends that he was denied the effective assistance of counsel. (A third defendant, Artimyo Rosa, pleaded guilty to possession of a controlled substance, received a sentence of 6 1/2 years, and is not involved in this appeal.)

Prior to trial, the court conducted a hearing on defendants' motion to suppress the evidence. At that hearing, Officer Steven Kuhn of the intelligence division of the Chicago Police Department was the sole witness.

Kuhn testified that on September 22, 1977, at about 2:45 a.m., he and his partners arrested defendants outside a food store in Oak Park, Illinois, without a warrant. At approximately 1 a.m. on the same date, Kuhn and Officer Thomas Riley met with a confidential informant whom Kuhn had known for a year. On five previous occasions, the informant had supplied information which proved to be true and reliable. Narcotics had been recovered in each instance. In three of the previous instances, arrest warrants were being sought; in the fourth instance, a person had been arrested and indicted and was awaiting trial; and on the other occasion, two arrests had been made and the accused had forfeited their bonds.

The informant told the officers that he had just talked to Artimyo Rosa at a bar. Kuhn had met Rosa in connection with narcotics investigations. Rosa told the informant that he was going to a store owned by Borges to buy heroin. Rosa was waiting for the bar to close at 2 a.m. so that the bartender, Louis Mercado, could drive him to the store. Mercado was described as Puerto Rican, 5 feet 7 inches, 160 pounds, with a full beard. Rosa would be riding in a blue Chevrolet, license plate number KN6309.

The officers set up a surveillance outside the store, some 250 feet away. Kuhn had binoculars which gave him the same view he would have had by standing 25 feet from the store. Although there were signs in the front window, the officers had an unobstructed view of the store through the glass doors. Shortly after 1:40 a.m., Borges drove into the parking lot in a Cadillac. Borges emerged from the vehicle and after taking a brown paper shopping bag from the trunk, he entered the store. Borges placed the bag on the checkout counter. Kuhn kept the bag under observation. At 2:30 a.m., Rosa arrived in a blue Chevrolet driven by Mercado. Borges unlocked the door and admitted Rosa into the fully lighted store. Rosa and Borges walked to the checkout counter where they were joined by Flores. Kuhn had not seen Flores enter the store. After the three men conversed, Flores reached into the bag and removed a package. Flores took an object from his pocket, inserted the object in the package, placed it in the bag, and handed the package to Rosa. Rosa held the package to his nose and returned it to Flores. Flores placed the package back in the bag, and Borges gave the bag to Rosa. Rosa exited the store and departed in the Chevrolet. The officers followed for a short distance and halted the vehicle. Kuhn informed Rosa and Mercado that they were under arrest and ordered them out of the automobile. Kuhn recovered the brown bag containing the powder in the passenger side of the front seat. Rosa stated that he had just purchased the heroin. The officers returned to the store and arrested defendants when they emerged. After hearing argument, the trial court denied defendant's motion to suppress evidence.

At trial, Kuhn gave substantially the same testimony he had given at the hearing on the motion to suppress. When Flores removed the package from the shopping bag in the store, he pierced the package with a pocket knife and handed the opened package to Rosa. Kuhn observed Rosa hold the package to his nose and look at its contents. Rosa's actions constituted a "street test" for heroin, in which the purchaser checked the odor and color of heroin for quality. When Kuhn recovered the shopping bag from the Mercado vehicle, there were no other shopping bags inside the automobile. Subsequently, other shopping bags were found in the trunk. Kuhn recognized the recovered shopping bag as being the same one as he saw in the store because it had the "Raggedy Ann" label. When Kuhn removed the bag from the automobile, he discovered it contained a number of packages. The top package had a puncture, enabling him to see a brown powder which appeared to be heroin. Kuhn testified that as a matter of police procedure, in cases where a large quantity of a controlled substance is acquired, only a representative sample over 30 grams is kept by the police department and the remainder is destroyed for security reasons. This procedure was followed in the present case. Kuhn did not observe money exchange hands.

Officer Christine Provost, a chemist for the Chicago Police Department, testified for the State that she had analyzed the items recovered by the police officers. She conducted several tests on samples from the powder recovered, and she determined that the brown powder was heroin. The remaining powder in custody was set aside for destruction.

Officer Thomas Riley was called as a witness by the defense. For 13 years, his police assignment was concerned with narcotics. During any particular transaction, money may or may not be exchanged. Where money is not exchanged, the contraband could be purchased on consignment. While it is highly unusual for a store owner to be involved in a heroin transaction in the front of a brightly lit store, Riley had seen many narcotics transactions occur in public or on an open street.

Defendant Borges testified that he owned the grocery store located at 25 Lake Street in Oak Park. He always left the lights on as a precaution against burglars. On the morning in question, at about 1 a.m., Flores came to his home to ask him to drive to the store to recover Flores' car keys. Upon arrival, he opened the trunk of his automobile and Flores and he each took a bag of empty soda bottles into the store. They placed the bags of bottles on the checkout counter. Borges heard a car horn and unlocked the store door to admit Rosa. Borges knew Rosa from Puerto Rico but had not seen him for 10 to 15 years. Rosa just happened to be in the neighborhood and stopped to visit. Borges gave Rosa several cartons of cigarettes in a brown shopping bag. Borges escorted Rosa outside to the Chevrolet, Rosa placed the cigarettes in the trunk of the vehicle, and Borges then returned to the store. Borges denied giving or selling heroin to Rosa.

Defendants initially contend that the trial court erred in denying defendants' motion to suppress the evidence. They argue that the police informant was not shown to be reliable and there existed no probable cause for the police to arrest Rosa and search the Chevrolet.

We first shall comment on the standing of defendant to challenge the legality of the search of the Chevrolet automobile which produced the evidence against them. In Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, the United States Supreme Court held that persons who were charged with crimes of possession were entitled to claim "automatic standing" to challenge the legality of searches. Very recently, the court specifically overruled Jones and held that defendants charged with possession may claim the benefits of the exclusionary rule only if their own fourth amendment rights have in fact been violated. (United States v. Salvucci (1980), ___ U.S. ___, 65 L.Ed.2d 619, 100 S.Ct. 2547.) Consequently, since defendants had no possessory interest in the Chevrolet automobile it would appear that they have no standing to challenge its search. Yet, the issue remains as to whether the Salvucci holding will be applied retroactively or merely prospectively. Since we believe the search was proper, we consider it unnecessary to confront that issue.

• 1 Upon review, the trial court's finding of probable cause will not be disturbed unless manifestly erroneous. (People v. Clay (1973), 55 Ill.2d 501, 304 N.E.2d 280.) Probable cause exists where the circumstances within the arresting officer's knowledge are sufficient to warrant a man of reasonable caution in believing an offense has been committed and that the person arrested committed the offense. (See Brinegar v. United States (1949), 338 U.S. 160, 93 L.Ed. 1879, 69 S.Ct. 1302.) Where the information obtained by the arresting officer forming a basis for his actions is derived from an informant, there must be a showing of prior reliability or an independent corroboration of the information supplied by ...

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