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People v. Ortiz

OPINION FILED DECEMBER 2, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HECTOR ORTIZ, SR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT COLLINS, Judge, presiding.

MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 30, 1980.

Defendant, Hector Ortiz, Sr., was charged by indictment with the offenses of possession of a controlled substance in violation of section 402(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1402(a)(1)) and possession with intent to deliver a controlled substance in violation of section 401(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(a)(1)). Prior to trial defendant filed a motion to quash the search warrant and to suppress evidence. The court denied defendant's motion, and following a bench trial defendant was found guilty only of possession of a controlled substance for which he was sentenced to a prison term of six years. On appeal defendant contends that he was not proved guilty of possession of a controlled substance beyond a reasonable doubt and that the trial court erred in denying his motion to quash the search warrant and suppress evidence.

For reasons hereinafter set forth, we affirm the judgment of the circuit court of Cook County.

On June 11, 1978, Investigator Thomas Kinsella executed a complaint for a search warrant averring that on that date he had a conversation with a reliable informant, upon whose information he had acted in the past resulting in a number of arrests and convictions. During this conversation the informant stated that on June 11, 1978, while in the rear bedroom of the first floor apartment at 1632 North Keeler Avenue, he had purchased for $50 a plastic "baggie" containing heroin from "Pop." When the informant asked "Pop" if he had "ounce quantities" of heroin, "Pop" led the informant to the basement and removed from a wooden cabinet a large plastic bag containing a substantial quantity of a brown powder. "Pop" removed a small portion of the substance from the bag, gave it to the informant as a "free sample," and returned the plastic bag to the wooden cabinet. The informant "used a portion" of both substances and experienced the same reaction he had experienced from his past uses of heroin.

The complaint for the search warrant further alleges that pursuant to his conversation with the informant, Investigator Kinsella established surveillance at the address given by the informant and observed several unknown males approach the porch, converse with "Pop," enter the first floor apartment and leave a short time thereafter. Kinsella's testimony at trial reveals that on three separate occasions within a half-hour period of surveillance a different unidentified male approached the porch, conversed with defendant, entered the first floor apartment and left a short time thereafter.

On June 11, 1978, a search warrant was issued based upon Investigator Kinsella's complaint. This warrant authorized the search of both the first floor apartment and the basement at 1632 North Keeler Avenue and the seizure of heroin and all other narcotic paraphernalia. At approximately 9:30 p.m. Investigator Kinsella, Sergeant Phillip Cline and three other police officers arrived at the above address to execute the search warrant. *fn1 Upon their arrival they identified themselves, informed defendant that they were authorized by warrant to search both the first floor apartment and the basement, presented defendant with a copy of the search warrant, and advised defendant of his constitutional rights. Although no heroin or narcotic paraphernalia was discovered as a result of the search of the first floor apartment, Kinsella did recover a fully loaded shotgun as well as a quantity of shells from the rear bedroom. Investigator Kinsella proceeded to the basement *fn2 whereupon he observed a wooden storage cabinet *fn3 secured by a lock. When Kinsella asked defendant to open the locked storage cabinet, defendant took a key ring from his pocket, removed a key from the key ring and handed it to Kinsella. Kinsella unlocked the storage cabinet and observed a quantity of tools and a table upon which a brown paper bag was situated. Inside the brown paper bag were 19 plastic baggies containing "a brown chunky substance," a package bound with masking tape containing a "brown powder," and a small scale. It was stipulated at trial that chemical analysis of the contents of four of the 19 baggies revealed their contents to be heroin. The total weight of the contents of the four baggies was 90.08 grams. The total weight of the contents of all 19 baggies was 427.90 grams. *fn4

Investigator Kinsella arrested defendant and then proceeded with the search of the basement and the other "one or two" storage cabinets. During his testimony at the hearing on the motion to quash the search warrant, Investigator Kinsella was unable to recall whether the other cabinets were secured by locks. Pursuant to direct examination at trial, Kinsella indicated that he "believed they [the other cabinets] were open," and responded negatively when asked if he used "a key of any kind" to gain access to these cabinets. During cross-examination Kinsella acknowledged that while testifying at the hearing on the motion to quash, he had been unable to recall whether these cabinets were locked. Upon redirect examination, the following colloquy occurred:

"[Assistant State's Attorney]: Did you use the key that [defendant] gave you to open up any of the other cabinets? * * *

[Investigator Kinsella]: No.

Q: Did you take any key to open up any other cabinet? * * *

A: Not that I can recall.

Q: Do you remember, yes or no?

A: No."

During rebuttal Kinsella denied using "any key to open" the other two cabinets. When Sergeant Cline was questioned as to how many of the storage cabinets were locked, he responded that "[t]he only one I observed with a lock that was locked was the first one. I didn't look at the condition of the other two."

Hector Ortiz, Jr. (hereinafter referred to as Ortiz), defendant's son, resides with his wife in the second floor apartment at 1632 North Keeler. He testified at trial that in March 1976 at defendant's direction he had purchased three locks, all of which could be opened by the same key. Ortiz could remember neither the name nor the location of the hardware store from which he purchased the locks. During cross-examination Ortiz first testified that he had gone to only one hardware store. He later testified during cross-examination that he had gone to several hardware stores. These three locks were then placed on the storage cabinets. Both Ortiz and Julio Colon, Ortiz's brother-in-law who resides in the third floor apartment, testified that all three storage cabinets were locked on June 11, 1978. Defendant also testified that all three storage cabinets had been locked and that the police had requested a key to open all of the cabinets. Ortiz ...


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