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04/04/88 the People of the State of v. Ralph Trask

April 4, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RALPH TRASK, DEFENDANT-APPELLANT



Before trial, defendant filed a motion to quash his arrest and to suppress the evidence seized based on the way in which the police executed the search warrant. A hearing was held, after which the trial court denied the motion. Since defendant renews his argument here that his motion should have been granted, we set forth first the evidence adduced at the hearing on the motion to suppress.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1222, 167 Ill. App. 3d 694, 118 Ill. Dec. 529 1988.IL.487

Appeal from the Circuit Court of Du Page County; the Hon. Edward Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and HOPF, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Ralph Trask, was charged by information in the circuit court of Du Page County with unlawful possession of a controlled substance (cocaine) with intent to deliver, possession of cannabis with intent to deliver, and unlawful use of weapons. After a jury trial, he was found guilty of possession of a controlled substance over 30 grams with intent to deliver, possession of a controlled substance over 30 grams, possession of a controlled substance less than 30 grams with intent to deliver, possession of a controlled substance less than 30 grams, possession of cannabis with intent to deliver, possession of cannabis, and unlawful use of weapons. He was sentenced to a term of imprisonment of eight years in the Department of Corrections for possession of a controlled substance over 30 grams with intent to deliver, and concurrent three-year terms for possession of cannabis with intent to deliver and unlawful use of weapons.

On appeal, defendant contends that his arrest should have been quashed and evidence suppressed due to the manner in which his arrest was effectuated, that he was not proved guilty beyond a reasonable doubt of possession of more than 30 grams of cocaine with intent to deliver or of possessing the shotgun which was the basis of the unlawful use of weapons conviction, and that the jury's verdicts were inconsistent. He also argues that he was deprived of a fair trial by the State's offer to stipulate to certain evidence in the presence of the jury and by improper closing argument. We affirm.

On January 13, 1984, Chicago and Burr Ridge police officers executed a search warrant for cocaine and documents of residency at a farmhouse at 6109 Grant Street in Burr Ridge. Seized were several weapons, including a shotgun with a barrel less than 18 inches long, quantities of cocaine and marijuana, currency, utility bills in defendant's name, and drug paraphernalia. Defendant was arrested and charged with the offenses listed above.

Defendant testified first at the hearing. At about 10 a.m. that morning, he was in an upstairs bedroom of the farmhouse with his fiancee, Leslie Larson, when he received a phone call from Burke's Security. As a result of the call, he expected someone to arrive within 30 minutes.

At about 10:30 a.m., he was nude in bed with Larson when he heard a "large, loud crash" followed by a second crash. Defendant ran to the front bedroom window and saw several people outside. He returned to the bedroom from which he had come and right away the police were there. Defendant testified that he heard no knocking or any announcement by the police. He also testified he had heard people knock on the door before from the bedroom and that if someone had knocked on the door, it would have only taken 10 to 15 seconds for him to put on his robe and answer it.

Following defendant's testimony, several police officers involved in the search testified. Officer Lash of the Chicago police department testified that Sergeant Cline and Officer Marino went up to the front door of the farmhouse. Lash took up a position to the right of the front door on the side of the building. Lash heard knocking and then Cline announcing "Police officers, we have a search warrant, open the door." There was another series of very loud knocks after which Cline made the same announcement. Lash estimated that about six seconds elapsed between the first knock and the second announcement. Lash heard some noise coming from the upstairs, then Cline said, "[Break] in the door." Lash learned from Cline and Marino that after they broke in the first door with a sledgehammer, a second inner door could not be forced open, so they gained entry by breaking in a window next to the door. Lash estimated that it was 45 seconds from the first knock until entry was made.

Next to testify was Officer Phillips of the Burr Ridge police department. He was positioned 50 feet from the front door, towards the side and back of the house. He heard knocking followed by an announcement. Although he first indicated that he did not recall what was actually announced, he later said he heard, "This is the police, open up." Approximately 20 or 30 seconds after the announcement, he heard the smashing of the door. His testimony as to the method of entry corroborated Lash's, and he estimated that it was about a minute from the knock and announcement until entry was made.

Chicago police officer Phillip Pariso testified that he and Sergeant Cline went up to the front door. Cline knocked and announced they were police officers and said, "Open the door." Cline waited a few seconds without response. He knocked and announced again and then instructed Pariso to break in the door. Pariso's description of the entry was similar to that of Lash and Phillips. Pariso guessed that it was about 30 seconds from the first knock until he first used the sledgehammer, or about 20 seconds after the second knock. He estimated that it was 45 seconds to one minute from the time he began to break the door until entry was made. Pariso went upstairs, where he found defendant and Larson completely undressed in a bedroom.

Officer Pariso also testified that he was a member of a team that arrested defendant on September 30, 1983. At that time, defendant was searched, and a loaded semiautomatic pistol was taken from his person. Pariso did not know if that gun had been returned to defendant or if defendant had any other weapons.

It also came to light during Pariso's testimony that the prosecutor had given a transcript of Officer Lash's testimony to Officer Marino, who had given the transcript to Pariso. Pariso had reviewed Lash's testimony before testifying, in violation of a prior motion to exclude witnesses, although Pariso was not aware of the exclusion order. Defendant's motion to strike Pariso's testimony was denied, although the trial Judge stated he would take the procedure into consideration when deciding what weight to give to the testimony.

The final witness of the suppression hearing was Leslie Larson. She had been charged with the same Class X offense as had defendant, but the charges against her were dismissed in exchange for her testimony against defendant. She testified that she and defendant were in an upstairs bedroom when there was a loud knocking on the door which lasted at most a few minutes, which they ignored. The knocking then changed to pounding, and defendant got up to see who it was. Defendant told her the police were there, and then there was a crash and a bang and sounds of footsteps coming upstairs. Larson also testified that about 45 minutes before the police arrived, she and defendant had free-based cocaine.

The final evidence was by way of stipulation. Chicago police officer Marino testified at the preliminary hearing that "upon arrival, [he] knocked at the front door and did not get an answer, at which time forcible entry was made in the front door."

The trial court then made the following finding:

"On January 13, 1984, certain law enforcement officers went to a large two floor wood farmhouse with four bedrooms on the second floor, located at 6109 Grant, in Burr Ridge, Du Page County, Illinois.

The law enforcement officers had with them a search warrant issued January 12, 1984, and the sufficiency of the search warrant will be covered separately. Law officers covered the farmhouse with certain law enforcement officers approaching the front door, and one of them had a sledge hammer.

After knocking and announcing the purpose of being at the address, 6109 Grant Street, Burr Ridge, Illinois, and getting no response, the sledge hammer was used on the outer door. Law enforcement officers, after breaking past the first door, were faced with a second door. Rather than break through the second door, because it opened inward, a first floor window was chosen to be broken, and entry was made.

It should be noted at this time that the law enforcement officers, according to the testimony, were familiar with the defendant, having arrested him on a prior date, and he was, at that time, in possession of a weapon. Therefore, the law enforcers, having a search warrant for search and seizure of certain controlled substances, and had had a prior dealing with the defendant, when he had a weapon, entered the residence of the defendant.

The Court notes at this time that all answers of the law enforcers regarding knock and announcement and use of force were approximations. By that I mean no one had a stopwatch. There was some gap in knocking and entering. This gap varied with the witnesses, but nevertheless, the Court finds that a reasonable time elapsed, considering the circumstances.

The Court finds that there was a knock, announcement and reasonable wait before force was used to enter the dwelling. The Court further finds that an exigent situation has presented itself to the law enforcers, and they acted within the legal requirements.

It is the ruling of the Court that the motion to suppress be denied."

At trial, Officer Pariso again testified. He found defendant and Larson nude in a second-floor bedroom and recovered $1,227 in currency from defendant's pants pocket. Pariso also searched the basement and found a clear plastic bag of white powder between the joists and the wall. There was no debris or dust on the bag. It was stipulated that the bag contained 268 grams of cocaine.

Chicago police officer John Wheaton testified that his role in the execution of the search warrant was to secure the first floor. He recovered a clear plastic bag of tan powder on a chair in the kitchen, a clear plastic bag of white powder in the living room, and three clear plastic bags of green crushed plant from the kitchen. It was stipulated that none of the bags contained a ...


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