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10/13/88 the People of the State of v. Dennis Foskey

October 13, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DENNIS FOSKEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

529 N.E.2d 1158, 175 Ill. App. 3d 638, 125 Ill. Dec. 82 1988.IL.1530

Appeal from the Circuit Court of Cook County; the Hon. Robert Boharic, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The defendant, Dennis Foskey, was charged with conspiracy to commit murder, solicitation to commit murder and possession of heroin with intent to deliver. Following a jury trial, he was acquitted of the conspiracy and solicitation charges, but convicted of possession of heroin with intent to deliver and sentenced to a term of 12 years. He contends on appeal that the trial court erred in refusing to suppress certain evidence obtained as the result of an allegedly illegal arrest. The defendant also contends that the court erred in granting the State's motion in limine based upon the marital privilege, thereby preventing the defense from using confidential communications between the defendant and his wife, the key prosecution witness.

The following testimony was presented at the hearing on the defendant's motion to suppress. On December 12, 1984, the defendant's wife, Sarah Foskey, was arrested for possession of heroin with intent to deliver. Shortly following her arrest, she agreed to become a police informer and supply information concerning narcotics trafficking to Detective George Graham. Information supplied by Sarah Foskey led to four arrests on five separate occasions.

On December 7 or 8, 1985, Sarah Foskey contacted Detective Graham concerning a conspiracy to kill Graham. She stated that during a meeting at her home the defendant, Virginia Terrazas and Jose Terrazas had plotted to kill Graham and planned to hire a private investigator to determine Graham's home residence, the vehicles he drove and his personal habits. According to Sarah Foskey, the investigator would be hired by Michael Swerdlin, who had a civil suit pending against Graham, on the pretense of investigating the civil suit. Approximately five days later, Sarah Foskey contacted Graham and told him that a private investigator named Mitchell Williams had in fact been hired and that he was driving a cream-colored rental car. On December 15, she told Graham that the investigator had obtained the requested information concerning him.

On December 17, Sarah Foskey contacted Graham and told him that the defendant, Jose Terrazas, Virginia Terrazas and a man named Al had met at the Foskey residence and discussed killing Graham by putting an explosive device in his car. Sarah Foskey next contacted Graham on December 28 about a meeting that took place that day between the defendant, Jose Terrazas, Donald Elam and a man called Jerry. During this meeting there was an agreement to pay Jerry $25,000 to murder Graham. On December 30, Sarah Foskey identified a photograph of John Demopoulos as the man known to her as Jerry.

John Demopoulos was arrested at 11 p.m. on January 2, 1986, and admitted accepting a contract to kill Graham for $25,000. Between 11 a.m. and 12 p.m. on January 3, Sarah Foskey called Graham and informed him that Virginia and Jose Terrazas were back in town and were going to their residence at 3916 Cornelia. The police were aware of the fact that the Terrazases traveled frequently between Chicago and Georgia. In an effort to coordinate the arrests of all of the suspects involved in the conspiracy, certain officers went to the Terrazas residence while others proceeded directly to the apartment shared by the defendant and Sarah Foskey. No arrest warrants were obtained.

According to the testimony of the police officers who went to the defendant's apartment, a message was received at 1:45 p.m. that the Terrazases had been arrested. At that time, they went to the door of the defendant's residence and found it slightly open. They announced their office, heard a noise from within, then entered the apartment with their weapons drawn. They found the defendant in the bathroom took him into the living room and handcuffed him. At that time the defendant was advised of his constitutional rights.

Sarah Foskey then entered the apartment and signed a consent form allowing the police to search the apartment. A short time later the defendant also signed a consent form. The police searched the apartment and found a quantity of heroin hidden in the bathroom. The defendant made a statement admitting that the heroin belonged to him.

According to the defendant, he was seated on the toilet when the police officers entered the bathroom and pointed guns at his head. He signed the consent-to-search form only because Sarah Foskey had signed one first. The defendant stated that he was not advised of his constitutional rights.

At the Conclusion of the hearing, the trial court found that exigent circumstances existed which justified the officers' warrantless arrest of the defendant in his home. The court also found that the defendant's ...


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