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07/31/87 the People of the State of v. Felix Broge Et Al.

July 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FELIX BROGE ET AL., DEFENDANTS-APPELLANTS



Before this court the State relies principally on People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147. That reliance is misplaced. The facts in Tisler and the extensive facts on which the officer relied to establish probable cause in Tisler (103 Ill. 2d 226, 231-34, 469 N.E.2d 147) are not remotely analogous to the meager facts in the case at bar. The following language of Tisler, however, is most intrusive in the case at bar:

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

511 N.E.2d 1321, 159 Ill. App. 3d 127, 111 Ill. Dec. 26 1987.IL.1101

Appeal from the Circuit Court of Cook County; the Hon. Stephen A. Schiller, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. WHITE and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

After a bench trial the defendants, Felix Broge and Antonio Gainza, were found guilty of unlawful possession of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1402.) Gainza was sentenced to two years' imprisonment and Broge was sentenced to 30 months' probation. Both appeal contending, inter alia, that the trial court erred in overruling their motion to suppress because the controlled substance was seized from Gainza's apartment by the officers without a warrant. We reverse.

The evidence presented at the hearing of the defendants' motion to suppress established that 4416 North Racine Avenue, Chicago, was a three - story multiunit apartment building with seven or eight apartments on each floor. The defendant Antonio Gainza resided in the third-floor south apartment. Only two or three of the apartments on the third floor were occupied. The building manager, Filipe Hidalgo, resided in one of them and perhaps another tenant resided in another. The defendant Felix Broge lived across the street but spent the night of October 11, 1984, with Gainza in Gainza's apartment.

Preparatory to retiring for the night, Gainza and Broge closed and locked the expandable metal burglar gates that secured the wooden entrance door to the apartment. Broge went to sleep on the bed near the door. Gainza went to sleep on the couch at about 10:30 p.m.

Chicago police officer Steven Joyce testified that at approximately 11:30 on the evening of October 11, 1984, he and his partners, Officers Kolgani and Townsend, set up a surveillance in the rear of 4416 North Racine. Joyce testified, "[there] is quite a bit of narcotic activities in the building itself," and that within the two months prior to October 11, 1984, he and his partners placed individuals under arrest five or six times for possession of a controlled substance.

The defense attorney objected to this testimony on the ground that it "was not relevant to this search" and requested that the testimony be stricken. The trial court asked the prosecuting attorney, "How is it relevant?" The prosecuting attorney answered, "What's at issue, [is] the reasonableness of the officer's conduct based on what his personal knowledge is and experience in going to this building on that date at that time." The trial court did not rule on the defense attorney's objection or on his motion to strike the testimony.

Officers Kolgani and Townsend, Officer Joyce's partners, did not testify at the hearing of the defendants' motion to suppress and Joyce did not name or otherwise identify the individuals that he and his partners arrested five or six times within the two months before October 11, 1984. Nor did Joyce testify whether the individuals lived in the building, or on what floor or in which apartment the arrests occurred, or whether the unlawful controlled substance was in the possession of the individuals arrested or whether such a substance was in the building when the persons were arrested. Moreover, Joyce did not testify to the Disposition of the possession of controlled substance charges against these individuals.

Joyce testified that after surveilling the rear of the premises for about 15 or 20 minutes he and his partners observed a couple of females, who were "known prostitutes," come out the back door of the building at about 11:15 that night and that he stopped and spoke to them.

Significantly, Joyce was not asked by the prosecuting attorney on direct examination the names of the two females, and Joyce by his answers and the prosecuting attorney by his questions made no effort to otherwise identify the two females. On cross-examination, however, Joyce testified, for the first time, that the names of the two females were Debbie Hansen and Mary Bateman. But when confronted on further cross-examination with his police report, Joyce admitted that he did not put the names of the two females therein.

Joyce testified that the two females told him and his partners that they had just purchased cocaine for $20 from two males on the third floor south, the apartment with the gates at the entrance door. No cocaine was obtained by the officers from the two females. Joyce testified that they stated that "they shot the cocaine up upstairs." The officers did not place the two females under arrest or take them into custody. Instead, the officers told them to leave and they did so.

The State did not contend in the trial court that on these bare assertions, the officers had probable cause to arrest anyone and the trial court did not so find. Before this court, however, the State contends for the first time that on this sparse information the officers had probable cause to make an arrest, but the State does not designate of whom.

"The fourth amendment to the United States Constitution guarantees the right to be free from unreasonable search and seizure. The amendment specifies that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' (U.S. Const., amend. IV.) With respect to unreasonable search and seizure, as well as to the issuance of warrants, the language of the 1970 Illinois Constitution is nearly identical to that of the Federal guarantee. Ill. Const. 1970, art. I, sec. 6.

In reference to Federal and State warrant requirements, this court has explained that a detached judicial officer must resolve the question of whether probable cause exists to justify issuing a warrant. The decision is to be based on information contained in sworn statements or affidavits that are presented to the magistrate. (People v. Greer (1981), 87 Ill. 2d 89, 92.) Whether probable cause exists in a particular case turns on the 'totality of the circumstances and facts known to the officers and court when the warrant is applied for.' . . .

When a police officer has proceeded without a warrant to search, seize evidence, or arrest a person, the trial court making a probable-cause determination is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant. (People v. Johnson (1983), 94 Ill. 2d 148, 153.) The Code of Criminal Procedure of 1963 allows a warrantless arrest only when a peace officer 'has reasonable grounds to believe that the person is committing or has committed an offense.' (Ill. Rev. Stat. 1983, ch. 38, par. 107-2(1)(c).) As used in the statute, 'reasonable grounds' is considered to have the same substantive meaning as 'probable cause.' People v. Wright (1974), 56 Ill. 2d 523, 528-29, quoting Brinegar v. United States (1949), 338 U.S. 160, 175-76, 93 L. Ed. 2d 1879, 1890, 69 S. Ct. 1302, 1310-11.

To determine whether a warrantless arrest meets the reasonable-grounds/probable-cause requirement, the trial court must decide whether 'a reasonable and prudent man, having the knowledge possessed by the officer at the time of the arrest, would believe the defendant committed the offense.'" (Emphasis added.) 103 Ill. 2d 226, 235-37, 469 N.E.2d 147.

Following the supreme court's directive in Tisler to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant in determining whether probable cause existed for a police officer to search, seize evidence or make an arrest without a warrant, both parties before this court rely on Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, as authority for their respective positions that probable cause did or did not exist for Joyce and his partners to make an arrest.

In Gates, the Illinois appellate and supreme courts held that the contents of an anonymous letter and the factual assertions in an affidavit were insufficient to establish probable cause for the issuance of a search warrant under the authorities of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. Those courts concluded that the letter and affidavit failed to satisfy the "two pronged test" of disclosing (1) the informant's basis of knowledge and (2) sufficient facts to establish the informant's veracity or the reliability of the informant's information. The Supreme Court in Gates abandoned the Aguilar-Spinelli "two pronged test" for determining whether an informant's tip established probable cause for the issuance of a warrant. The Supreme Court adopted instead the "totality of the circumstance" approach in making a probable cause determination. The Supreme Court held that an informant's reliability, veracity and the basis for his knowledge were highly relevant and probative in the "totality of the circumstances" probable cause determination, but that they were not the exclusive factors to be rigidly exacted in every case. The Supreme Court stated that under the "totality of the circumstances" approach, the content of the anonymous letter and the factual assertions in the affidavit provided the Judge who issued the warrant a substantial basis for concluding that probable cause existed to search the defendant's home and car. In reversing, the Supreme Court stated:

"conscientious assessment of the basis for crediting such tips is required by the Fourth Amendment . . ..

. . . [We] reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. [Citations.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . [concluding]' that probable cause existed. . . ..

. . . An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause . . .. . . . Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare Conclusions of others. In order to ensure that such an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued." Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548-49, 103 S. Ct. 2317, 2332-33.

Pursuant to the Supreme Court's directive in Gates that the duty of a reviewing court is to ensure that the officers have a substantial basis for its Conclusion that probable cause existed to make an arrest and pursuant to this court's duty to conscientiously review the sufficiency of probable cause on which arrests are made, we conclude from the totality of ...


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