Appeal from the Circuit Court of Winnebago County; the Hon.
John Sype, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendants, Jeffery Chianakas and Rene L. LaMagna, were charged by information in the circuit court of Winnebago County with knowing and unlawful delivery of a controlled substance under section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401(a)(2)). A third defendant, Terry Forbes, was charged with possession of a controlled substance under section 402 of the Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1402). All three were charged with calculated criminal drug conspiracy (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1405(b)).
Each of the defendants filed a motion to suppress evidence which had been taken from them by police officers following their warrantless arrests. Hearing was had on these motions prior to trial and the motions were denied.
The three defendants were then tried in a joint jury trial. Forbes was directed out at the close of the People's case and the conspiracy charges were dropped. Chianakas and LaMagna were convicted of unlawful delivery of more than 30 grams of a substance containing cocaine. Each was sentenced to six years' imprisonment. Their appeals were consolidated in this court.
Three briefs were filed by the defendants. Chianakas filed a brief; LaMagna's original appellate counsel filed one; and his subsequent appellate counsel filed a supplemental brief. The issues raised in those briefs may be summarized as follows: (1) Whether evidence seized at the time of the defendants' arrests should have been suppressed; (2) Whether LaMagna's request that his case be severed should have been granted; (3) Whether dismissal of the conspiracy charge against the defendants should have resulted in a mistrial; (4) Whether the State proved beyond a reasonable doubt that the defendants were guilty of delivering a substance under section 401(a)(2); (5) Whether the State sustained its burden of proof as to the amount of the substance delivered; (6) Whether LaMagna was deprived of the effective assistance of counsel; and (7) Whether the jury was properly instructed on the law of accountability.
The following evidence was adduced at a pretrial suppression hearing. Shortly after midnight on December 18, 1980, Agent Mason of the Illinois Division of Criminal Investigation went to the Albert Pick Motel in Rockford, Illinois, in response to a phone call from defendant Chianakas. Mason went to Room 229. Defendants Chianakas and LaMagna were there, as well as a third individual who was never identified. LaMagna and the unidentified person left the room, with LaMagna carrying a brown suitcase. They were observed by surveillance officers as they walked north and west from the room. About five minutes later they drove east in a yellow Cadillac that was found to be registered to Rene LaMagna. When LaMagna entered the Cadillac he was carrying a blue and white athletic-type bag. About 20 to 30 minutes later the same car returned to the Albert Pick Motel with LaMagna and a man later identified as Terry Forbes. LaMagna went to Room 407, empty-handed. Forbes drove the Cadillac from the scene, eastbound.
According to Agent Mason, he was supposed to buy eight ounces of cocaine from Chianakas. After LaMagna and the unidentified person left the room, Chianakas showed him a drawer in which there was a bag purportedly containing one ounce of cocaine but said there was a delay in completing the deal because one of Chianakas' men had been stopped by the State police. Agent Mason went outside to an unmarked squad car to get $1,800 from Detective Kuparski. The cocaine was left in the drawer. Upon Mason's return, Chianakas told him that the price had increased to $1,900. Chianakas said he had put up $8,000 for the cocaine for the deal and "Rene" put up the other half of the money; that "Rene" was one of the people who had left the room shortly after Mason arrived. Agent Mason went to the car to get the additional $100, and at Chianakas' request Deputy Kuparski came in from the car. Chianakas pocketed the $1,900 and then left the room, saying he was going to get more cocaine. This occurred after LaMagna had returned to the motel in the yellow Cadillac. Chianakas was observed leaving Room 229, walking north and west to the rear of the complex, and entering Room 407. While he was gone, Deputy Kuparski returned to the car. Agent Mason informed the Illinois State Police that, since he would be unable to buy all of the cocaine due to the price increase, the other subject who had left should have part of the cocaine with him. Chianakas returned after 15 to 30 minutes, placing a clear plastic bag with white powder on the wheel well of the unmarked squad car, in which Deputy Kuparski was sitting, before he reentered Room 229. Chianakas told Agent Mason that he had left four ounces on the car's wheel, and at his direction Agent Mason retrieved the bag and gave it to Deputy Kuparski. Chianakas followed him outside, they got money from the trunk, which Chianakas instructed him to hide, and Deputy Kuparski gave an arrest signal. Agent Mason followed Chianakas back to his room, No. 229, and arrested him as they were opening the door.
LaMagna was registered in Room 407 at the Albert Pick Motel, which is on the northwest end of the motel complex. He was arrested there at about the same time Chianakas was arrested in Room 229.
When a person later identified as Terry Forbes left the Albert Pick Motel alone in the yellow Cadillac, he was followed by Agent Young east to a restaurant, where he was observed entering the restaurant. After two or three minutes, he returned to the car and drove to the Colonial Inn Motel, where he parked in the parking lot. Agent Young returned to the Albert Pick Motel area, and shortly afterward the arrests of Chianakas and LaMagna were made. Agent Young and three other officers then went to the Colonial Inn Motel. After being informed by the motel office that an "R. Magna" was registered in Room 315 and had paid for two persons to stay there, they proceeded to that room, where they arrested Terry Forbes.
The arrests of both LaMagna and Forbes were executed similarly, LaMagna at Room 407 of the Albert Pick Motel and Forbes at Room 315 at the Colonial Inn Motel. Each room had only one door. Room 315 was on the second or third floor. Room 407 was on the first floor. The testimony of the law enforcement officials is that, in each case, four officers were present. They knocked and gave a false identity when asked who was there. When the door was opened slightly by the occupant, they forced it open wider and entered, identifying themselves as police officers and informing each suspect that he was under arrest. They had their guns drawn while entering. The door to Room 315 was chained when it was opened. Each suspect was secured and handcuffed. In each room the police observed and seized open suitcases whose contents were visible.
The brown suitcase that LaMagna had earlier taken from Chianakas' room was found in plain view in Room 407 on a small suitcase stand to the right of the door. Various officers observed in it a bowl, mixer, plastic bags, bottle of mix, a gram scale, a mortar and pestle with white powdery residue on it, an empty jar, and a green tote bag. There was a blue and white athletic-type bag in Room 315. A manilla envelope was sticking out of it, and the tops of four ziplock plastic bags in the envelope were visible. The plastic bags contained a white powder, and there was also a brown bottle of white powder in the bag. The brown suitcase and the blue and white bag and their contents were seized as evidence. Also seized were two bundles of money in the amount of $1,900 in marked currency and $870, taken from LaMagna's person in the course of pat searching him. There was no warrant for any of the arrests or for any seizure of evidence, nor was there any attempt to obtain an arrest warrant or search warrant.
The defendants told a different story. Forbes testified that the blue and white bag was on a dressing table under a wall mounted television set, that it was zipped closed, and that the manilla envelope was not visible. He also denied opening the door to the room. LaMagna testified that the brown suitcase was standing upright, behind the open door, fully zipped closed.
The trial court denied the motions of each defendant to suppress the physical evidence. The court found that there was probable cause to secure the rooms in that the police had a reasonable basis to believe that contraband would be in the rooms, they determined that a person was in each room, and the nature of the contraband was that it could be easily destroyed.
• 1 The defendants argue that the warrantless seizure of evidence from LaMagna's and Forbes' rooms and from LaMagna's person was unconstitutional in that there were no exigent circumstances and that the search exceeded the proper scope of a search incident to a valid arrest. The State argues that Chianakas has no standing to challenge the constitutionality of the seizure of the evidence from LaMagna's and Forbes' rooms and that LaMagna has no standing as to Forbes' room, in that they had no legitimate expectations of privacy in those places. The State concedes that it did not raise the issue of standing below but urges that it be considered on appeal since the record contains the necessary factual basis for a determination of this question, citing Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141. However, the decision in People v. Holloway (1981), 86 Ill.2d 78, 91-92, is controlling. There, the State did not challenge the standing of the defendant when he joined in his co-defendant's motion to suppress evidence. The court held that the State had waived the issue of standing by not raising it at the trial level, reasoning that a timely objection by the State would have afforded the defendant an opportunity to try to show a possessory interest in the premises from which the evidence was taken. In the instant case, not only did the State fail to raise the issue, but it expressly waived it in response to defense counsel's query. The State is therefore barred from raising this issue for the first time on appeal.
There was ample evidence presented that the brown suitcase and blue and white bag were both open and that they and their contents were in plain view. Although the defendants denied those assertions, the visibility of the suitcases and their contents is a question of fact, and we find there is no basis for overturning the trial court's finding on that question. If the police were legitimately on the premises, then it was proper to seize the evidence. Items inadvertently discovered in plain view in a place where the police have a right to be may be seized if there is probable cause to believe they constitute the proceeds or instrumentalities of a crime. (People v. Harris (1982), 104 Ill. App.3d 833, 845.) As to the money seized from LaMagna, a full search of one's person incident to a valid custodial arrest is also permissible without additional justification. (People v. Seymour (1981), 84 Ill.2d 24, 34-36.) The initial inquiry then is whether the officers properly entered and arrested the defendants.
In Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, the United States Supreme Court held that the fourth amendment of the United States Constitution prohibits warrantless entry into the home of a suspect, for the purpose of arrest, unless there is consent to the entry or there exist exigent circumstances that justify proceeding without a warrant. Payton was followed by our supreme court in People v. Abney (1980), 81 Ill.2d 159. In Abney, the hospitalized victim of a beating told police officers the name and address of his assailant and that the assailant had walked in the direction of his home after the beating. The police proceeded directly to the suspect's home, knocked, identified themselves, and entered the home when the door swung open. In holding that exigent circumstances were present, the supreme court found it important that "the officers who entered defendant's home were presented an unusual opportunity to quickly apprehend an armed suspect and thereby prevent his escape, avoid exhaustion of law-enforcement resources, and help ensure against further endangerment to the community." (81 Ill.2d 159, 169.) The court articulated several factors that evidenced exigent circumstances: (1) the immediacy with which the officers proceeded to the suspect's residence upon learning his identity (circumstances within the spirit of the "hot pursuit" exception), (2) the absence of deliberate or unjustified delay by the officers during which a warrant could have been obtained, and (3) the belief that the suspect was armed and exhibited some sign of a violent character. All of these factors indicated that there was a need for prompt action, and therefore exigent circumstances were present. The court also determined that the officer's actions in response to the exigent circumstances were reasonable in light of the following factors: (1) a clear showing of probable cause based on reasonably trustworthy information necessary to justify the warrantless procedure, (2) clear identification of the suspect, (3) a reasonable belief that the suspect was in the premises entered, and (4) a peaceful entry. 81 Ill.2d 159, 169-72.
In People v. Eichelberger (1982), 91 Ill.2d 359, our supreme court examined a different factual basis for exigent circumstances sufficient to justify entry to make a warrantless arrest. There, a police officer, having been advised the previous day that the defendant was suspected of selling contraband at a particular hotel, positioned himself in a room next to the defendant's room, observed the defendant and another person enter the defendant's room, and overheard the defendant say he had some "grams" the person could have and expected to get some "coke" in a few days. The door to the defendant's room was open at least a crack, and the officer was aware that it was open. He gave an arrest signal, and the defendant was arrested and searched. The supreme court noted that residents of a hotel are entitled to the same constitutional protection against unreasonable searches as are enjoyed by residents of private homes. The fact that the door was cracked open did not amount to a waiver of the defendant's fourth amendment rights or justify a warrantless entry, although it was relevant to the peaceful nature of the entry. Rather, the warrantless entry could be justified only by exigent circumstances. The court stated that the factors enunciated in Abney were not exclusive and that each case must be decided on its own facts. The court held that the officers' reasonable belief that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance that justified the warrantless entry into the hotel room and the arrest. Since the warrantless arrest was valid, the officers had the right to conduct a contemporaneous search of the defendant's person and the area within his immediate control. 91 Ill.2d 359, 370-71.
In the case at bar, there was neither consent nor a warrant for the entry into the motel rooms to arrest LaMagna and Forbes, and therefore there must be exigent circumstances to justify the entry. An examination of the Abney guidelines shows that the police proceeded promptly to effect the arrest and there was no delay during which they could have procured a warrant. However, recentness of the offense alone cannot give rise to exigent circumstances, absent a need for prompt action, such as where delay to obtain a warrant would impede a promising investigation and conceivably provide the time needed to avoid capture altogether. People v. Klimek (1981), 101 Ill. App.3d 1, 5.
• 2 In this case, the officers visually witnessed Chianakas enter Room 407, where LaMagna was waiting, leave there and deliver four ounces of cocaine to Agent Mason. Such an offense is a felony. (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1401.) The fact that the officers reasonably believed that a felony was being committed in their presence demanded prompt police action and constituted an exigent circumstance which justified the warrantless entry into the hotel rooms and the arrests. (People v. Eichelberger (1982), 91 Ill.2d 359.) The fact that the arrest of LaMagna was made minutes after the officers reasonably believed he committed a felony establishes the reasonableness of the warrantless entry and arrest. This is further supported by the fact that prior to the controlled buy there was no probable cause to support the issuance of a warrant. There was no unjustified delay on the part of the police, and the immediacy of the arrest would minimize the risk that evidence would be lost.
LaMagna had driven out for one night, renting rooms at two different motels. It was reasonable for the officers to believe that LaMagna had either witnessed the arrest of Chianakas or heard the commotion incident to it. Before that arrest, the police had reason to believe that LaMagna had the remaining cocaine in his possession and that he was waiting for Chianakas to return with the money. Clearly, prompt police action was called for. Two of the three exigent circumstances enunciated in Abney were present here. The third factor, whether the defendant was armed, is not clear although the police had reason to believe Chianakas allegedly carried a weapon when he did his dealing. They had little or no information on either LaMagna or Forbes. However, the amounts of ...